Mr. Justice Craig
delivered the opinion of the Court:
This was an action brought by appellee, legal representative of Jeremiah O’Connor, deceased, against the Lake Shore and Michigan Southern Railway Company, 'to recover damages for the death of O’Connor, caused, as is alleged, by the negligence of the servants of the railway company, while he was in the discharge of his duties as switchman in the company’s service. A trial of the cause before a jury resulted in a verdict and judgment in favor of the plaintiff for $5000, which, on appeal, was affirmed in the Appellate Court.
The accident which resulted in O’Connor’s death occurred at Englewood, within the town of Lake, in Cook county, which, as appears, is an incorporated town. On the trial the plaintiff offered in evidence an ordinance of the town of Lake, which provides that the speed of passenger trains shall not exceed twelve miles an hour, and that of freight trains shall not exceed eight miles an hour. The defendant objected to the introduction of the evidence, on the ground, as claimed, that the declaration makes no complaint based upon an alleged violation of the ordinance of the town of Lake. In the first, second and third counts of the declaration the ordinance regulating the rate of speed of trains is set out in hcec verba, in connection with an averment substantially as follows: That Jeremiah O’Connor was in the employment of defendant under the orders, direction and control of its servants, officers and agents; that it became his duty to couple and uncouple cars situated upon a certain track, and to give signals; that while the said O’Connor was then and there so performing said duty of coupling and uncoupling cars and giving signals, with all due care and caution and diligence on his part, all of which the defendant well knew and had notice, the defendant, by its servants, carelessly, negligently, improperly, unlawfully and wrongfully was driving and managing said engine and car attached thereto, when by and through the negligence, carelessness and improper conduct of the defendant the said locomotive engine and car then and there ran at a great and unlawful ratevof speed, and struck with great force and violence upon and against the said O’Connor, who was thereby so injured that he died; that the town of Lake is an incorporated town, by virtue of a special act approved March 26, 1869, and that section 1 of an ordinance of said town, entitled “Bailroads,” is as follows, viz.: Then follows the ordinance in hcec verba.
We do not regard the declaration well drawn or technically correct as a pleading, and had a demurrer been interposed, we have no doubt it might have been sustained; but at the same time we are inclined to hold that under the averments of the declaration it was proper to admit the ordinance in evidence. The ordinance having been set out in full, the defendant was not misled or taken by surprise. Moreover, it was alleged that the train ran at a great and unlawful rate of speed, and struck O’Connor, who was thereby injured, and died. Under these averments the defendant was notified that the plaintiff relied upon the ordinance and the running of the train contrary to its provisions, as a ground of recovery, and if the averments were not sufficient, a demurrer should have been interposed, so that the declaration might have been changed, and a specific averment inserted that the injury occurred by reason of the negligence of the defendant in running its trains at a greater rate of speed than was allowed by the ordinance.
But there is another view that may be taken of this question. The plaintiff had the right to prove the averments of her declaration. She had set out the ordinance as a part and parcel of the declaration, and the ordinance was admissible in evidence to prove the facts set out in the declaration, to-wit, the existence of an ordinance as averred. Then, after the evidence is admitted, if the sufficiency of the declaration is called in question, the answer to that position is, after verdict and judgment the, insufficiency of the declaration can not be availed of. Under the doctrine of intendment, after verdict the defect is cured. Chitty, in discussing this subject, says: “The doctrine upon this subject is founded on the common law, and is independent of any statutory enactments. The general principle upon which it depends, appears to be, that where there is any defect, imperfection or omission in any pleading, whether in substance or form, which would have been a fatal objection upon demurrer, yet if the issue joined be such as necessarily required, on the trial, proof of the facts so defectively stated, or omitted, and without which it is not to be presumed that either the judge would direct the jury to give, or the jury would have given, the verdict, such defect or omission is cured by the verdict. ”
The next error relied upon is the decision of the court refusing defendant’s instruction No. 1, which directed the jury that the evidence was not sufficient to sustain a verdict for plaintiff, and the verdict should be for the defendant. This court has sanctioned an instruction like the one in question in a proper case. Simmons v. Chicago and Tomah Railroad Co. 110 Ill. 340, is an authority in point. But this was not a case where an instruction of that character would have been proper. There was evidence before the jury upon which a verdict for the plaintiff might rest, and when such is the case it is the duty of the court to refuse such an instruction. Had there been no evidence upon which a verdict could be predicated, or if the evidence had been so slight that the court would be bound to set aside the verdict, on motion, had one been rendered for the plaintiff, the instruction would have been proper; but such was not the fact.
It is next claimed that the court erred in refusing the defendant’s third instruction, which, in substance, directed the jury, as a matter of law, that when the engineer in charge of the train which struck the deceased, saw the lanterns of the switchmen upon or near the track upon which he was running, he had the right to assume they would get out of the way of his engine before he reached them, and had the right to manage his engine on that supposition. Under the facts as established by the evidence we do not regard the instruction correct. ' The evidence tends to prove that the engineer was running his train at a rate of speed prohibited by law,— at the rate of twenty miles an hour, when he only had the right to run at the rate of eight miles an hour. It may be if the engineer had been running at a slow rate of speed, that he might then have assumed that the deceased might see the approach of his train, and get out of the way; but when he was running at a high rate of speed, at a place where the deceased was authorized to believe the approaching train would run only at the rate of eight miles an hour, the engineer had no right to assume that the deceased would get out of the way.
It is also claimed that the court erred in refusing defendant’s eighth instruction, which, in substance, directed the jury that it was the duty of deceased to exercise constantly the highest diligence and caution, and if, at the time of the accident, he was not in the exercise of such care and diligence, plaintiff could not recover.
Free access — add to your briefcase to read the full text and ask questions with AI
Mr. Justice Craig
delivered the opinion of the Court:
This was an action brought by appellee, legal representative of Jeremiah O’Connor, deceased, against the Lake Shore and Michigan Southern Railway Company, 'to recover damages for the death of O’Connor, caused, as is alleged, by the negligence of the servants of the railway company, while he was in the discharge of his duties as switchman in the company’s service. A trial of the cause before a jury resulted in a verdict and judgment in favor of the plaintiff for $5000, which, on appeal, was affirmed in the Appellate Court.
The accident which resulted in O’Connor’s death occurred at Englewood, within the town of Lake, in Cook county, which, as appears, is an incorporated town. On the trial the plaintiff offered in evidence an ordinance of the town of Lake, which provides that the speed of passenger trains shall not exceed twelve miles an hour, and that of freight trains shall not exceed eight miles an hour. The defendant objected to the introduction of the evidence, on the ground, as claimed, that the declaration makes no complaint based upon an alleged violation of the ordinance of the town of Lake. In the first, second and third counts of the declaration the ordinance regulating the rate of speed of trains is set out in hcec verba, in connection with an averment substantially as follows: That Jeremiah O’Connor was in the employment of defendant under the orders, direction and control of its servants, officers and agents; that it became his duty to couple and uncouple cars situated upon a certain track, and to give signals; that while the said O’Connor was then and there so performing said duty of coupling and uncoupling cars and giving signals, with all due care and caution and diligence on his part, all of which the defendant well knew and had notice, the defendant, by its servants, carelessly, negligently, improperly, unlawfully and wrongfully was driving and managing said engine and car attached thereto, when by and through the negligence, carelessness and improper conduct of the defendant the said locomotive engine and car then and there ran at a great and unlawful ratevof speed, and struck with great force and violence upon and against the said O’Connor, who was thereby so injured that he died; that the town of Lake is an incorporated town, by virtue of a special act approved March 26, 1869, and that section 1 of an ordinance of said town, entitled “Bailroads,” is as follows, viz.: Then follows the ordinance in hcec verba.
We do not regard the declaration well drawn or technically correct as a pleading, and had a demurrer been interposed, we have no doubt it might have been sustained; but at the same time we are inclined to hold that under the averments of the declaration it was proper to admit the ordinance in evidence. The ordinance having been set out in full, the defendant was not misled or taken by surprise. Moreover, it was alleged that the train ran at a great and unlawful rate of speed, and struck O’Connor, who was thereby injured, and died. Under these averments the defendant was notified that the plaintiff relied upon the ordinance and the running of the train contrary to its provisions, as a ground of recovery, and if the averments were not sufficient, a demurrer should have been interposed, so that the declaration might have been changed, and a specific averment inserted that the injury occurred by reason of the negligence of the defendant in running its trains at a greater rate of speed than was allowed by the ordinance.
But there is another view that may be taken of this question. The plaintiff had the right to prove the averments of her declaration. She had set out the ordinance as a part and parcel of the declaration, and the ordinance was admissible in evidence to prove the facts set out in the declaration, to-wit, the existence of an ordinance as averred. Then, after the evidence is admitted, if the sufficiency of the declaration is called in question, the answer to that position is, after verdict and judgment the, insufficiency of the declaration can not be availed of. Under the doctrine of intendment, after verdict the defect is cured. Chitty, in discussing this subject, says: “The doctrine upon this subject is founded on the common law, and is independent of any statutory enactments. The general principle upon which it depends, appears to be, that where there is any defect, imperfection or omission in any pleading, whether in substance or form, which would have been a fatal objection upon demurrer, yet if the issue joined be such as necessarily required, on the trial, proof of the facts so defectively stated, or omitted, and without which it is not to be presumed that either the judge would direct the jury to give, or the jury would have given, the verdict, such defect or omission is cured by the verdict. ”
The next error relied upon is the decision of the court refusing defendant’s instruction No. 1, which directed the jury that the evidence was not sufficient to sustain a verdict for plaintiff, and the verdict should be for the defendant. This court has sanctioned an instruction like the one in question in a proper case. Simmons v. Chicago and Tomah Railroad Co. 110 Ill. 340, is an authority in point. But this was not a case where an instruction of that character would have been proper. There was evidence before the jury upon which a verdict for the plaintiff might rest, and when such is the case it is the duty of the court to refuse such an instruction. Had there been no evidence upon which a verdict could be predicated, or if the evidence had been so slight that the court would be bound to set aside the verdict, on motion, had one been rendered for the plaintiff, the instruction would have been proper; but such was not the fact.
It is next claimed that the court erred in refusing the defendant’s third instruction, which, in substance, directed the jury, as a matter of law, that when the engineer in charge of the train which struck the deceased, saw the lanterns of the switchmen upon or near the track upon which he was running, he had the right to assume they would get out of the way of his engine before he reached them, and had the right to manage his engine on that supposition. Under the facts as established by the evidence we do not regard the instruction correct. ' The evidence tends to prove that the engineer was running his train at a rate of speed prohibited by law,— at the rate of twenty miles an hour, when he only had the right to run at the rate of eight miles an hour. It may be if the engineer had been running at a slow rate of speed, that he might then have assumed that the deceased might see the approach of his train, and get out of the way; but when he was running at a high rate of speed, at a place where the deceased was authorized to believe the approaching train would run only at the rate of eight miles an hour, the engineer had no right to assume that the deceased would get out of the way.
It is also claimed that the court erred in refusing defendant’s eighth instruction, which, in substance, directed the jury that it was the duty of deceased to exercise constantly the highest diligence and caution, and if, at the time of the accident, he was not in the exercise of such care and diligence, plaintiff could not recover. Where a person is engaged to work in a dangerous place, it is clearly his duty to exercise a high degree of care, in view of the dangers to which he may be exposed; but does the law require a person engaged in such service to exercise the highest diligence and caution? We think ordinary care and diligence, in view of the perils to which the person is exposed, is all that should be required,— such care and diligence as a prudent person would ordinarily exercise for his safety under like circumstances. If the rule indicated by the instruction was adopted, a person could not recover if he was guilty of any negligence, however slight. We do not understand this to be the law. We have held in many cases, that a person guilty of slight negligence may recover when the negligence of the defendant is gross in comparison with that of the plaintiff, which is slight. The instruction does not announce a correct legal principle. It is in conflict with the rule indicated in Wabash Railway Co. v. Henks, 91 Ill. 413, and in our opinion the court ruled correctly in refusing it.
The court refused defendant’s sixteenth instruction, and the decision is claimed to be erroneous. The instruction, in substance, declares that it was the duty of deceased to keep a constant lookout for his safety, and if they find, from the evidence, that at the time of the accident he was not keeping a lookout, and that the injury occurred, wholly or in part, from such omission, plaintiff can not recover. It is no doubt true that common prudence required the deceased to keep a constant lookout for his safety, but whether he did so or not was a question of fact for the jury, and not one of law to be determined by the court. The instruction, in effect, directed the jury that certain facts made out a case of negligence against the deceased, which precluded a recovery, when it was the province of the jury to determine that fact for themselves from the evidence. The ninth instruction is liable to the same objection, and for that reason, if for no other, it was properly refused.
It is also claimed that the court erred in refusing instructions Nos.- 11, 14, 17 and 18, respectively. It will not be necessary to go over these instructions in detail, and point out the objections to them. There is one fatal objection to each one of them, and that is, that they each and all ignore the fact that the defendant was required to exercise care and caution in running its train. Under the instructions no care was required from the defendant whatever.
But independent of what has been said in regard to the refused instructions, there is no valid ground for claiming that the jury was improperly instructed, or that the defendant was prejudiced by the ruling of the court in the instructions.' No instructions whatever were asked or given for the plaintiff, but on behalf of the defendant the court gave to the jury eight well prepared instructions, which presented all the law involved in the case, fairly before the jury. Under such circumstances, if the court had committed slight error in refusing some of the defendant’s refused instructions, such errors would afford no ground for reversing the judgment.
So far as appears, after a careful examination of the whole record, the defendant has had a fair trial, and we perceive no good reason for disturbing the judgment of the Appellate Court.
The judgment will be affirmed.
Judgment affirmed.