First National Bank v. Eitemiller , 14 Ill. App. 22 ( 1883 )

Wilson, J.

We are constrained to reverse the judgment below, by reason of errors contained in the instructions given to the jury, at the instance of the plaintiff. It is claimed by the plaintiff that, without fault on his part, he fell into an opening in defendant’s sidewalk, which the latter carelessly and negligently left uncovered, whereby he received the injury complained of. The defendant denies that it was guilty of any negligence, but that on the contrary, the accident occurred through want of care and caution on the part of plaintiff. Evidence was introduced tending to support the theories of the respective parties, as to the weight of which we express no opinion, it being sufficient to say that the facts, as shown, presented a proper case for the application of the doctrine in relation to comparative negligence, as now settled in this State. The rule, on that subject, may be stated thus: In actions for personal injuries caused by the alleged negligence of the defendant, if the negligence of the plaintiff is slight, and that of the defendant gross, and if it so appear when compared with each other, the plaintiff may recover: C. B. & Q. R. R. Co. v. Johnson, 103 Ill. 512; Chi. & N. W. Ry. Co. v. Thorson, 11 Bradwell, 631; Moody v. Peterson, 11 Id. 183. In the latter case Mr. Justice Bailey said, “ The doctrine of comparative negligence is founded upon a comparison of the negligence of the plaintiff with that of the defendant. This element of comparison is of the very essence of the rule. It must not only appear that the negligence of the plaintiff is slight and that of the defendant gross, but also that they are so when compared with each other.”

Such comparison the plaintiff’s first and seventh instruction wholly omits. Again, the jury were told by the first instruction, that if the plaintiff was exercising ordinary and usual care and prudence, the defendant was liable, if the defendant was guilty of negligence, in not remedying the defect by keeping the area safely and securely covered and guarded. This would create a liability if the defendant was guilty of any, the slightest, negligence. In other words, if the plaintiff was guilty of slight negligence, and the defendant was only guilty of equally slight negligence, the plaintiff was entitled to recover. Moreover, the jury were told by the instruction that the defendant was liable, provided they believed from the evidence that the defendant was guilty of negligence in not remedying the defect, and keeping the area safely and securely covered and guarded; using the copulative instead of the disjunctive conjunction, thus making it the duty of the defendant, not only to keep the opening safely and securely covered, but also, as the jury might understand the language, to keep it otherwise guarded. Such an instruction was liable to mislead and confuse the jury.

We see no substantial objection to the plaintiff’s second instruction. Its purpose was merely to inform the jury that the defendant could not shield itself from liability on the ground that the work was done by a contractor whom it had employed to do the work, and we think there was evidence sufficient to make it applicable to the case.

The plaintiff’s seventh instruction is replete with errors of which it will suffice to point out two or three. And first, like the first instruction, it wholly ignores the element of comparative negligence. In the next place it imposes upon the defendant a higher degree of obligation and duty in respect to the protection of the public, or persons, against injury through defects in a street or sidewalk, caused by the party sought to be made liable, than the law requires. The language used is, “ It is his duty to have the work so done as to save and protect the public and all persons using the street or sidewalk from injury,’? etc. Thus making the defendant a guarantor of the safety of persons using the sidewalk. Such is not the rule.

The defendant was required to use ordinary and reasonable care in constructing the walk and guarding against danger; such care as men of ordinary caution and prudence would use under like circumstances of peril: C. B. & Q. R. R. Co. v. Johnson, 103 Ill. supra, and cases there cited; 1 Thompson on Negligence, 102, et seq.

Again, the instruction, like the first, required the defendant to construct both proper guards and coverings. The instruction also contains several different propositions of law, so stated as to be liable to confuse and mislead rather than enlighten the jury. As was said in Baxter v. The People, 3 Gilm. 368, the object 'of instructions is to convey to the minds of the jury correct principles of law, as applicable to the evidence which has been laid before them; nothing should be given to them, unless it will promote that object.

For the reasons above indicated, the judgment of the court below is reversed, and the cause remanded for a new trial.

Beversed and remanded.