Mr. Justice Scholfield
delivered the opinion of the Court:
We have carefully considered the several grounds urged for a reversal of the judgment below, and are of opinion that they are all untenable.
First—The action being for personal injuries caused by the negligence of the defendant, it is within the statute, a-nd survives. (Rev. Stat. 1874, chap. 3, sec. 123.) And there is nothing in Holton v. Daly, Admx. 106 Ill. 131, which holds to the contrary. Indeed, it is expressly therein recognized that such actions do survive upon the death of the plaintiff, and it was held, when the death is the result of the injuries for which the suit is brought, t'he action must be prosecuted, after the death, for the benefit of the widow and the next of kin, and that in such case there can be no recovery for the bodily pain and suffering, but that where the death results from a cause other than the injuries for which the suit is brought, there may be a recovery, notwithstanding the death, for precisely the same injuries that the party himself could have recovered for, had he lived until after the final trial. The demurrer to the plea was, therefore, properly sustained. The motion afterwards made, to strike the plea from the files, was simply supererogatory. Sustaining it did no possible harm to the defendant.
Second—We are not aware of any authority which sanctions the practice of striking out portions of a declaration on mqtion. If a declaration is defective, a demurrer should be interposed, and, in some instances, the same question may be raised on objection to evidence, or on instructions to the jury. In no view do we think the defendant was prejudiced by the ruling of the circuit court in this respect. The question is not what we may think ought to survive, but what does the statute declare shall survive. Its language is free of ambiguity, very plain, and, it would seem, incapable of being misapprehended. It is: “In addition to the actions which survive by the common law, the following shall also survive: * * * Actions to recover damages for an injury to the person. ” This can simply mean nothing else than that the action shall proceed in the name of the administrator, just as if the party had not died. It does not, as does the act of February 12, 1853, give a new right of action to the administrator. It simply continues an existing action or right of action, and prevents its abating by the death of the plaintiff or party having the right of action.
Third—The plea of not guilty was already on file. The action of the court, in ordering, on defendant’s motion, that a portion of the declaration be stricken out, did not essentially change the material allegations of the declaration. The issues were, in substance, the same, afterwards as before. It is not pretended that, under any evidence that could have been produced, the Statute of Limitations could have been sustained. If that plea was intended to be interposed in good faith, it should have been done before the issues were closed. The death of the plaintiff did not, in any respect, affect any issue under that plea. It was discretionary with the court to allow' the plea to be filed at the late day that it was offered, and we perceive no abuse of discretion in refusing it.
Fourth—There was evidence before the jury tending—how much is immaterial—to establish negligence, and the question of the weight of it, and of the reasonableness of the amount of damages, belongs purely to the Appellate Court.
Fifth—It was entirely competent to prove, as was done, what O’Connor testified on the former trial. The issues were unchanged, in any respect, by his death. (Holton v. Daly, Admx. supra.) And that being so, all the authorities concur that it was competent to prove, on the last trial, what he testified to on the first. McConnel et al. v. Smith, Admr. et al. 27 Ill. 234; Iglehart v. Jernegan, 16 id. 513; M. P. R. Co. v. Keep, 22 id. 9; 1 Greenleaf on Evidence, (13th ed.) sec. 164.
Sixth—It is objected that the first instruction does not state the law of comparative negligence reeognizéd in this State. Notwithstanding any expressions that may be found in opinions in earlier cases, tending to authorize a conclusion to the contrary, it is now settled that it is not indispensable that such doctrine shall 'be stated in instructions for the plaintiff. If an attempt is made to state the doctrine, it should be stated correctly, as held in cases referred to in the plaintiff’s argument; but. if the jury are correctly instructed, in other respects, in regard to the doctrine of negligence, it will be sufficient. It must appear that the plaintiff has observed due care, and that he was injured by the negligence of the defendant; and if this does appear, it will authorize a recovery. If the defendant wishes the jury further instructed in regard to the comparative negligence of the parties, the counsel for that side should solicit the instructions. Calumet Iron and Steel Co. v. Martin, 115 Ill. 374.
But it is again objected, that this instruction excludes the idea that it should appear that the injury was caused by the negligence of the defendant. This is a misapprehension. In the introductory part of the instruction, the jury are told that the plaintiff seeks to recover on the ground that the defendant so negligently, carelessly and improperly drove and managed its locomotive engine and train, on the occasion in question, that the deceased, Jeremiah O’Connor, while in the exercise of ordinary care, suffered certain injuries; and in.the body of the instruction the jury are again told that the right of recovery is dependent upon their finding, from the evidence and under the instructions of the court, that “the defendant is guilty of having somegligently, carelessly and improperly driven and managed its locomotive engine and train on the occasion in question, that the deceased, Jeremiah O’Connor, while in the exercise of ordinary care, suffered certain injuries thereby, as alleged in the declaration.”
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Mr. Justice Scholfield
delivered the opinion of the Court:
We have carefully considered the several grounds urged for a reversal of the judgment below, and are of opinion that they are all untenable.
First—The action being for personal injuries caused by the negligence of the defendant, it is within the statute, a-nd survives. (Rev. Stat. 1874, chap. 3, sec. 123.) And there is nothing in Holton v. Daly, Admx. 106 Ill. 131, which holds to the contrary. Indeed, it is expressly therein recognized that such actions do survive upon the death of the plaintiff, and it was held, when the death is the result of the injuries for which the suit is brought, t'he action must be prosecuted, after the death, for the benefit of the widow and the next of kin, and that in such case there can be no recovery for the bodily pain and suffering, but that where the death results from a cause other than the injuries for which the suit is brought, there may be a recovery, notwithstanding the death, for precisely the same injuries that the party himself could have recovered for, had he lived until after the final trial. The demurrer to the plea was, therefore, properly sustained. The motion afterwards made, to strike the plea from the files, was simply supererogatory. Sustaining it did no possible harm to the defendant.
Second—We are not aware of any authority which sanctions the practice of striking out portions of a declaration on mqtion. If a declaration is defective, a demurrer should be interposed, and, in some instances, the same question may be raised on objection to evidence, or on instructions to the jury. In no view do we think the defendant was prejudiced by the ruling of the circuit court in this respect. The question is not what we may think ought to survive, but what does the statute declare shall survive. Its language is free of ambiguity, very plain, and, it would seem, incapable of being misapprehended. It is: “In addition to the actions which survive by the common law, the following shall also survive: * * * Actions to recover damages for an injury to the person. ” This can simply mean nothing else than that the action shall proceed in the name of the administrator, just as if the party had not died. It does not, as does the act of February 12, 1853, give a new right of action to the administrator. It simply continues an existing action or right of action, and prevents its abating by the death of the plaintiff or party having the right of action.
Third—The plea of not guilty was already on file. The action of the court, in ordering, on defendant’s motion, that a portion of the declaration be stricken out, did not essentially change the material allegations of the declaration. The issues were, in substance, the same, afterwards as before. It is not pretended that, under any evidence that could have been produced, the Statute of Limitations could have been sustained. If that plea was intended to be interposed in good faith, it should have been done before the issues were closed. The death of the plaintiff did not, in any respect, affect any issue under that plea. It was discretionary with the court to allow' the plea to be filed at the late day that it was offered, and we perceive no abuse of discretion in refusing it.
Fourth—There was evidence before the jury tending—how much is immaterial—to establish negligence, and the question of the weight of it, and of the reasonableness of the amount of damages, belongs purely to the Appellate Court.
Fifth—It was entirely competent to prove, as was done, what O’Connor testified on the former trial. The issues were unchanged, in any respect, by his death. (Holton v. Daly, Admx. supra.) And that being so, all the authorities concur that it was competent to prove, on the last trial, what he testified to on the first. McConnel et al. v. Smith, Admr. et al. 27 Ill. 234; Iglehart v. Jernegan, 16 id. 513; M. P. R. Co. v. Keep, 22 id. 9; 1 Greenleaf on Evidence, (13th ed.) sec. 164.
Sixth—It is objected that the first instruction does not state the law of comparative negligence reeognizéd in this State. Notwithstanding any expressions that may be found in opinions in earlier cases, tending to authorize a conclusion to the contrary, it is now settled that it is not indispensable that such doctrine shall 'be stated in instructions for the plaintiff. If an attempt is made to state the doctrine, it should be stated correctly, as held in cases referred to in the plaintiff’s argument; but. if the jury are correctly instructed, in other respects, in regard to the doctrine of negligence, it will be sufficient. It must appear that the plaintiff has observed due care, and that he was injured by the negligence of the defendant; and if this does appear, it will authorize a recovery. If the defendant wishes the jury further instructed in regard to the comparative negligence of the parties, the counsel for that side should solicit the instructions. Calumet Iron and Steel Co. v. Martin, 115 Ill. 374.
But it is again objected, that this instruction excludes the idea that it should appear that the injury was caused by the negligence of the defendant. This is a misapprehension. In the introductory part of the instruction, the jury are told that the plaintiff seeks to recover on the ground that the defendant so negligently, carelessly and improperly drove and managed its locomotive engine and train, on the occasion in question, that the deceased, Jeremiah O’Connor, while in the exercise of ordinary care, suffered certain injuries; and in.the body of the instruction the jury are again told that the right of recovery is dependent upon their finding, from the evidence and under the instructions of the court, that “the defendant is guilty of having somegligently, carelessly and improperly driven and managed its locomotive engine and train on the occasion in question, that the deceased, Jeremiah O’Connor, while in the exercise of ordinary care, suffered certain injuries thereby, as alleged in the declaration.”
Seventh—It is objected that the court erred in refusing to give to the jury the defendant’s third and fourth instructions. The third instruction asked by the defendant reads thus: “In this' case, if you find, from the evidence, that the decedent, O’Connor, was injured solely by his making a mistake as to which track the train was coming on, then the. plaintiff can not recover, and you shall find a verdict for the defend-ant. ” This implies that if O’Connor made a mistake as to which track the train was coming on, it must, inevitably, have been either because he did not possess the knowledge in relation to the situation of the tracks and the running of the trains thereon, or because he did not exercise the care or skill in' this respect which the duties he had assumed to perform required, to ascertain on which track the'train was coming; ■but it is manifest this is untenable, because the failure of the defendant to ring. a bell, or to otherwise give warning of the approach of the train, or the peculiar manner in which the train was operated, may have caused O’Connor to make a mistake as to which track the train was coming on, notwithstanding that he was, at the time, in the exercise of due care. To mistake,—that is, to err in judgment or opinion,—does not necessarily imply a failure in duty on ■ the part of the person mistaken. He may have judged accurately, or, at .least, reasonably, in view of the lights before him, and yet he may have been mistaken,—his judgment wrong, through no fault of his,—because those lights were illusory and deceptive. Whether, here, assuming that O’Connor was mistaken in the respect indicated in the instruction, that mistake was because of some failure in duty on his part, or because of some failure in duty on the part of the defendant, was, under the evidence as preserved in the record, a question of fact for the jury. The court could not declare, as a matter of law, that it was because of a failure in duty on the part of O’Connor. It is only "when the conclusion of negligence necessarily results from the statement of fact, that the court can be called upon to say to the jury that a fact establishes negligence, as a matter of law. If the conclusion of negligence, under the fact stated, may or may not result, as shall depend on other circumstances, the question is one of fact for the jury. The fourth instruction asked by the defendant is repeated in the defendant’s twelfth and thirteenth instructions, which were given, and there was no necessity for further repetition.
Eighth—The sixth instruction was properly refused, because, in the first place, it seeks to put the court in the place of the jury, and require it to draw the conclusions of fact for the jury, instead of leaving them to be drawn by the jury; and, in the second place, the idea intended to be conveyed is fully expressed in the defendant’s fourteenth instruction, which was given. What was said by this coprt, supposed by counsel for the appellant to be pertinent, in Lake Shore and Michigan Southern Railroad Co. v. Hart, 87 Ill. 534, was in regard to travelers about to cross over railroad tracks, and is irrelevant to a case like the present, where an employe of a railroad company is injured in the performance of duties on or about railroad tracks.
Ninth—The defendant asked to have the jury instructed to the effect that the relation of co-servant existed between O’Connor and his foreman, and that if O’Connor was injured through the negligence of his foreman to give him warning, this would be the ■ negligence of a fellow-servant, and there could be no recovery. O’Conner and his foreman were in the employ of the Western Indiana Railroad Company. This suit is against the Chicago and Eastern Illinois Railroad Company, charging it with negligence. It is not pretended that O’Connor’s foreman had anything to do with the running and. management of the defendant’s trains, and hence the case is not one wherein the doctrine applicable to cases in which one servant is injured by the negligence of a co-servant, is pertinent. The questions are, did O’Connor observe due care to avoid the injury, and, if so, was he, while observing such care, injured by the defendant’s negligence. O’Connor could not, and it was not claimed that he should, ■ be absolved from his duty to observe clue care because he was under the control of a foreman. Of course, if he was injured solely in consequence of the negligence of his foreman, he was not injured in consequence of the negligence of the defendant; but this is only equivalent to saying, that if O’Conner was not injured by the defendant’s negligence, there could be no recovery. If not thus injured, it was immaterial how otherwise he was injured, and in this respect the jury was sufficiently instructed.
We are of opinion that there is no error in the ruling of the court upon any question of law presented by the record, which would justify us in reversing the judgment below.
The judgment is affirmed.
Judgment affirmed.
Subsequently, on the 22d of March, 1887, on an application for rehearing, the following additional opinion was filed:
Per Curiam:
We have carefully considered the petition filed herein, for a rehearing, but find no sufficient reason for granting its prayer. The petition is predicated upon the assumption that what is held in the foregoing opinion in respect of the right of recovery being for precisely the same injuries for which the intestate could have recovered had he lived, is in conflict with the ruling in Holton v. Daly, 106 111. 133, sustaining an instruction limiting the plaintiff’s right , to recover to damages sustained before the death of the intestate. This is a misapprehension. The subjects are not the same. In the present case we are speaking only of the cause of action, —that cause of which there may be a recovery,—but the instruction in that case, and the remarks therein referred to, relate to the extent of the recovery. Injuries for which there may be a recovery, is one thing, and the damages that may be recovered, is another and different thing. And so, although there may be, in different contingencies, the right of recovery in different parties for the same injuries, it does not follow that their measure of recovery,—i. e., the dayiages which, in legal estimation, they l)ave sustained,—is the same.