West Chicago St. R. R. v. Egan ( 1898 )

Mr. Justice Sears

delivered the opinion of the Court.

This suit was brought against appellant for alleged negligence in causing the death of a child, appellee’s intestate. Verdict and judgment were obtained by appellee.

The evidence was conflicting, and such as might support a verdict for either litigant.

The only errors assigned, worthy of attention, are as to the giving of the first and second instructions for plaintiff below.

By the first instruction the care required of the child’s mother, who was with her at the place and time of the injury, was stated as “ at the time of the accident.” It is objected that this is exclusive of a time just prior to the accident, when she might be held to a like exercise of care. But the objection is disposed of by Lake S. & M. S. Ry. Co. v. Ouska, 151 Ill. 232.

The second instruction is as follows: “The jury are instructed that although they may believe from the evidence that Jennie Egan, deceased, just prior to her death, was placed in a dangerous situation through her own or her mother’s negligence, yet if the jury further believe from the evidence that her dangerous situation was known to the employes of the defendant in charge of the grip car in question, or that it might have been known to said employe by the exercise of ordinary care and prudence, and that after such dangerous situation of said child was known or could have been known by said employe by the exercise of ordinary care, said employe could have avoided the injury and death of said child by the exercise of ordinary care, then the jury will find the defendant guilty.”

This instruction, we think, was inaccurate, in that it relieved the mother of the intestate from any result of contributory negligence on her part, not only in case the jury 1 found that the gripman actually saw the child and'willfully ran his car upon her, but as well if they found that the grip-man did not see her at all, but might, in the exercise of ordinary care, have discovered her dangerous situation, and by such care have avoided the injury. In other words, it left the jury free to find for the plaintiff, although they might find that there was only such negligence by defendant as amounted to a want of ordinary care, and although there was contributory negligence by plaintiff.

In a case where the evidence is conflicting, we can not assume that this instruction may not have worked prejudice to appellant.

The judgment is reversed and the cause remanded.