Chicago, Burlington & Quincy Railroad v. Dvorak , 7 Ill. App. 555 ( 1880 )

McAllister, P. J.

Where, as in this case, the evidence is closely conflicting as to necessary elements of the plaintiff’s cause of action, we hold it to be a rule founded in the plainest principles of justice, and essential to its fair administration, that such party shall not be suffered to gain an undue advantage over the opposite party by means of defective and misleading instructions to the jury.

Of such a character is the one given for the plaintiff, and the modification by the court of the instruction asked on behalf of the defendant, complained of by the appellant. By both, the question of fact, essential to the cause of action, that the plaintiff received his personal injuries in consequence of the neglect of the engineer to ring the bell or sound the whistle, or in consequence of the train being run at a rate of speed faster than six miles an hour, is wholly excluded from the consideration of the jury. Unless the injury was the result of such neglect or breach of duty, there could be no recovery. Galena, etc. R. R. v. Dill, 22 Ill. 264; I. & St. L. R. R. v. Blackman, 63 Ill. 117; Toledo, etc. R. R. v. Jones, 76 Ill. 211. For that error, the judgment will be reversed and the cause remanded.

Beversed and remanded.