Cincinnati, LaFayette & Chicago Railroad v. Ducharme

4 Ill. App. 178, 1879 Ill. App. LEXIS 160

Opinion

Per Curiam.

Action on the case by defendant in error against plaintiff in error, for the killing of a colt of defendant in error, through the alleged neglect of the company to fence its road within six months after it was open for use.

The court below, by agreement of the parties, orally instructed the jury upon the whole case, and now it is urged for error that such charge to the jury was erroneous, in that it did not submit the question fairly to the jury, of the contributory negligence of the plaintiff below in allowing his colt to run at large contrary to law.

While we would have been better satisfied had the court submitted such question to the jury in explicit terms, as it was a question for the jury, to be determined from all the facts and circumstances in evidence, yet as the charge was oral, and upon the whole case, the plaintiff in error should have made his objection specific to that portion of the charge, and not relied upon a general objection and exception to the whole charge. Haskins v. Haskins, 67 Ill. 446.

The instruction asked by the defendant below was properly refused.

The court cannot say to the jury, as a matter of law, that the plaintiff permitting his colt to run at large was negligence which contributed to the injury complained of, as it depends upon all the surrounding circumstances, whether it was negligence or not; and whether, if negligence, it contributed to the killing.

Substantial justice was done by the verdict, and the judgment will be affirmed.

Judgment affirmed.