Chicago, Burlington & Quincy R. R. v. Ruttka , 59 Ill. App. 56 ( 1895 )

Mr. Presiding Justice Waterman

delivered the opinion op the Court.

Appellee has moved to strike the bill of exceptions from the record, the facts upon which such motion is based being the statement that “ At the December term, 1894, an order was entered giving forty days to file a bill of exceptions. The time would expire January 24, 1895. On January 23d the time was extended ten days without notice to appellee. The bill of exceptions was filed within this ten days.”

We regard Hawes v. The People, 129 Ill. 123, and Village of Marseilles v. Howland, 136 Ill. 81, as decisive of this motion, and it is denied.'

It does not affirmatively appear that the extension of January 23d was granted without notice.

One of the principal questions upon the trial of this cause was whether the plaintiff was at the time of the accident exercising ordinary care for his own safety. •

The plaintiff asked, and the court at his instance gave, the following as an instruction:

“ bTegligence of the employer, resulting in injury to the employe, is not included in the perils incident to the employment. The negligence of the servants of the employer is the negligence of the employer, and the- employer is responsible for an injury resulting from such negligence, except when the injury is caused,by a fellow-servant of the injured party, or when the plaintiff himself is guilty of gross negligence.”

It is the settled law of this State that the plaintiff can not recover for negligence of the defendant unless he himself is in the exercise of ordinary care. Railway Co. v. Wallace, 11 Ill. 114; C., B. & Q. R. R. Co. v. Johnson, 103 Ill. 512.

The instruction clearly misstates the law and was most prejudicial to the defendant.

The judgment of the Superior Court is therefore reversed and the cause remanded.