Chicago West Division Railway Co. v. Haviland , 12 Ill. App. 561 ( 1883 )

Bailey, P. J.

We think the court below" erred in refusing to give or even to examine any of the instructions asked on behalf of the defendant. The statute requires- that all instructions to the petit jury be reduced to writing; and that the judge, when instructions are asked, write “ Given” on the margin of such as he approves, and “Befused” on the margin of such as he can not give. This statute of course contemplates the preparation of instructions by counsel, and it has accordingly been the practice, recognized and enforced by a long line of judicial decisions, to give to the jury such instructions as may be submitted by the respective counsel, provided they are based upon the evidence, and announce correct propositions of law applicable to the case, in clear, concise and intelligible language, and are not argumentative nor misleading, nor a repetition of other instructions given. Where instructions of this character are asked, it is the legal duty of the court to give them.

There is doubtless a limit to the number of instructions which a party has a right to require the court to give. This follows from what has already been said, since the number of distinct legal propositions arising in any one case is necessarily limited. But as to every proposition of law actually involved, the statement of which would in any way aid the jury in the performance of their functions, a party has an undoubted right to have the jury properly instructed.

This privilege of asking instructions is of course liable to abuse. Their number may be unnecessarily multiplied, thus imposing upon the judge a useless burden if he undertakes to examine them all, and confusing rather than aiding the jury, perhaps, if they are given. But we are unable to perceive how the fact that too many instructions are asked, exempts the judge from the duty of examining any of them. He may, perhaps, after duly considering a reasonable number, decline to proceed farther, but he should pass upon and give or refuse as many instructions as the party asking them is reasonably entitled to.

The judge, it is true, gave, in this case, an instruction prepared by himself, and if that instruction had stated to the-jury correctly all the legal propositions arising in the case upon which the défendant’s counsel desired to have them instructed, the defendant would have' had no ground of com-plaint. This, however, it did not do. Various material propositions upon which the defendant, had a right to have the jury instructed were omitted; and as to those matters the jury were compelled to find their verdict without instructions.

_ But we think the instruction given by the court, was itself obnoxious to serious criticism. After holding that the only ground upon which the plaintiff could recover would be, that the car driver was guilty of wanton and reckless misconduct, the instruction left it to the jury to determine from the evidence whether “ the car was being driven so rapidly as to be dangerous to others, and as to show that the driver was wantonly and recklessly regardless of the safety of persons on the street.” We have examined the record, with care, and fail to find any evidence upon which this portion of the instruction could be based. The misconduct to which the attention of the jury was here called, related merely to the rate of speed at which the car was being driven. On this subject we have the testimony of the plaintiff and four other witnesses. Of these, the plaintiff testifies merely that the car was being driven rapidly, but does not attempt to indicate more definitely the rate of speed. His own admissions, however1, as well as the other evidence in the case, show conclusively that he neither saw nor heard the car or horses, until they were within a few feet of him, and that his testimony as to the rate of speed is wholly unreliable. Of the remaining four witnesses, two, the driver and man who was riding with him on the platform, testify that the horses were walking. Another testifies that the car was going neither fast nor slow, but at the usual rate. The fourth testifies that it was going faster than usual, and in another place, that it was going very fast, but confesses his inability to give the rate of speed, and furnishes us ' with no data from which the rate can be estimated even approximately. How, even if we take the testimony of the last mentioned witness as true, it comes far short, when all his testimony so preserved by the record is considered together, of showing that the driver was “wantonly and recklessly regardless of the safety of persons on the street.” He may have driven faster than usual, or at the rate which the witness sees proper to term “ very fast,” without being liable to the imputation of general malice toward the public. This portion of the instruction, then, having no evidence to support it, should not have been given.

The theory of the instruction doubtless was that the evidence conclusively showed the plaintiff to have been guilty of a want of ordinary care, and therefore that the only ground upon which a recovery was possible, was proof of such wanton and reckless misconduct on the part of the car driver as would raise a legal presumption that the plaintiff’s injury was willfully inflicted. The assumption that the plaintiff was guilty of a want of ordinary care, was, in our opinion, justified by the evidence. The conclusion drawn from this assumption that the plaintiff could recover only upon proof that the injury was willful, was doubtless correct. Upon these propositions the jury must be deemed to have been guided by the instruction; and their verdict must be held to be a finding that the car driver was shown by the evidence to have been wantonly and recklessly regardless of the safety of persons on the street. Such finding is not only against the clear preponderance of the evidence, but is wholly without evidence, and should for that reason have been set aside.

The instruction also, in submitting to the jury the question of the plaintiff’s negligence, limits them to a consideration of his conduct after he saw his danger. The negligence, however, with which the evidence tends to charge him, is to be found mainly in his conduct before he saw his danger. It consisted in standing where he did without looking or listen7 ing, or taking any other precaution to ascertain whether danger was approaching. As he himself testifies, he was not thinking of danger until it was too near for him to escape. The attention of the jury should have been directed to his entire conduct on the occasion, and they should have been

permitted to consider his conduct as well before he discovered the approach of the car and horses, as after.

In determining this question also, the jury were instructed to disregard the fact that the plaintiff was an old man. This, too, was error. The fact that he was an old man, and. laboring, presumably, under the infirmities of old age, was a material circumstance ¡bearing upon the question of his contributory negligence, and it should therefore have been considered by the jury in determining whose negligence caused the injury.

We are furthermore of the opinion that the amount of the verdict was excessive. Giving the evidence for the plaintiff all the weight that can be legitimately claimed for it, his injury is not shown to have been of such a character as to justify a recovery of $10,000. Many cases are to be found in this State where even smaller verdicts for injuries equally severe have been set aside by the Supreme Court as excessive. With precedents of that character before us, we can not permit this verdict to stand.

For the various errors above pointed out, the judgment will be reversed and the cause remanded.

Judgment reversed.