Chicago & Alton Railroad v. Pelligreen , 1896 Ill. App. LEXIS 1017 ( 1896 )

Me. Justice Scofield

delivered the opinion of the Court.

This case was before us at the February term, 1895, and the judgment of the lower court in favor of Martha Pelligreen was reversed and the cause was remanded because we were dissatisfied with the verdict of the jury under the evidence. 59 Ill. App. 558.

The cause has been tried again and another verdict has been rendered in favor of the appellee. Even if the judgment should be sustained under the evidence there is one error of law, the giving of appellee’s third instruction, which -would necessitate a reversal of the judgment. This instruction is as follows :

“ The court instructs the jury that when witnesses are otherwise equally credible, and their testimony otherwise entitled to equal weight, greater weight and credit should be given to those whose means of information were superior, and also to those who swear affirmatively to a fact, rather than to those who swear negatively, or to want of knowledge.”

There were abundant opportunities for the jury to misuse this instruction to appellant’s prejudice, both as to the manner in which the alleged injury was received, and as to the nature and extent of the injury. "With this instruction before the jury, there arose a necessity for another instruction clearly defining affirmative and negative testimony. The uninstructed mind would probably conclude that a sentence which contains the word not is negative, and that every other is affirmative. This being true the testimony of appellee would be accorded more weight than would be given to the testimony of any one who might deny her assertions. And yet the use of the word not is not the invariable test of negative testimony. "Where one man swears that A struck B and another swears that A did not strike B, and both had equal opportunity to see and know the facts, the testimony of each of the witnesses is affirmative in the legal signification of the term. So the testimony of the brakeman in this case that he did not, on this occasion, pusbi appellee, or any other woman," violently up the steps in.helping her on the train, is not to be regarded as having less weight than appellee’s testimony on that point simply because it is couched in negative terms. C., B. & Q. R. R. Co. v. Cauffman, 38 Ill. 424; R. R. I. & St. L. R. R. Co. v. Hillmer, 721 Id. 235; C., B. & Q. R. R. Co. v. Lee, 87 Id. 454.

The judgment is reversed and the cause is remanded.