Chicago North Shore St. Ry. Co. v. McCarthy , 1896 Ill. App. LEXIS 778 ( 1896 )

Mr. Justice Waterman

delivered the opinion of the Court.

• A car going at the rate of twenty miles an hour will move seventy-five feet in about three seconds.

The deceased 'took a great risk in attempting to cross in • front of a rapidly approaching car, when it was but seventy-five feet away. The car was in plain sight as he rode toward it, there was nothing to obstruct his view, and his attempt, under the circumstances, to cross in front of this car, was a failure to exercise ordinary care.

When a jury is instructed “ that if they believe the plaintiff has made out his case as laid in his declaration, then the finding must be for the plaintiff,” a fair presumption is that the jury, as it has a right, takes the declaration to its room when it retires to consider as to its verdict. Else how is it to know what is charged in the declaration ?

In the present case, upon three of the counts of the declaration as filed, there could be no recovery. So far as appears, the jury knew nothing about the sustaining of a demurrer to two counts, or the withdrawal of a third.

It was error to instruct the jury as above set forth. Grand Tower Mfg. Co. v. Ullman, 89 Ill. 244; U. S. Rolling Stock Co. v. Chadwick, 35 Ill. App. 474.

The judgment of the Circuit Court is reversed and the cause remanded.