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 3 1924 032 483 632 
 
Cornell University 
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 http://www.archive.org/details/cu31924032483632 
 
THE 
 
 RAILROADS 
 
 AND THE 
 
 COURTS 
 
 By HIRAM T. GILBERT, 
 
 OF THE ILLINOIS BAB. 
 
 OTTAWA, ILL.: 
 
 PUBLISHED BY THE AUTHOR. 
 
 1885. 
 3o 
 
Entered according to Act of Congress, A. D. 1885, by 
 
 Hieam T. Gilbebt, 
 
 In the Office of the Librarian of Congress, at Washington. 
 
PREFACE. 
 
 Out of a total of seventeen judgments rendered by 
 the circuit courts against the four leading railroad 
 companies of this state, in actions which came before 
 the supreme court for review during a period of eleven 
 years, (from June, 1873, to June, 1884), and which were 
 brought for killing or injuring persons, or injuring 
 property, at railroad crossings, sixteen were reversed 
 and but one was affirmed, and that one was affirmed 
 by a divided court, after two prior judgments in the 
 same case had been reversed by the supreme court. 
 Out of a total of twenty -seven judgments rendered 
 by the circuit courts against the same companies, in 
 actions which came before the supreme court for 
 review during the same period, and which were brought 
 for injuries resulting in death, twenty-four were 
 reversed and but three affirmed, one of which was the 
 judgment above mentioned, affirmed by a divided 
 court after two prior reversals. Out of a total of sixty- 
 three judgments rendered by the circuit courts against 
 the same companies, in cases which involved the ques- 
 tion of negligence, and were tried by jury, and which 
 came before the supreme court for review during the 
 same period, fifty-three were reversed and but ten 
 affirmed, five of which were affirmed upon the first 
 trials, and the other five upon the second or third 
 trials. On the other hand, out of a total of fifty-three 
 judgments of conviction in criminal cases, reviewed by 
 the supreme court during the period covered by the 
 
IV PREFACE. 
 
 last ten volumes (101-110) of the Illinois Reports, 
 thirty-two were affirmed, and but twenty-one reversed. 
 
 These facts, taken in connection with the further 
 fact, that nearly all the judgments rendered by the 
 circuit courts, against the four railroad companies 
 referred to, are appealed from, and that a majority of 
 the judgments of conviction, in criminal cases, are 
 acquiesced in, and not attempted to be reversed upon 
 error, seemed to the author, after due consideration, 
 to be wholly inconsistent with a reasonably perfect 
 system of administering justice, and brought to mind 
 that very excellent advice, given by Lord Coke, when 
 he said: "Littleton often saith, l and the cause is,' 
 which is worthy of observation, for then we are truly 
 said to know anything, when we know the true cause 
 thereof. And therefore all students of law are to 
 apply their principal endeavor to attain thereunto." 
 To show the endeavor made by the author, and the 
 conclusions arrived at, as well as to point out suitable 
 remedies for some of the evils found to exist, is the 
 purpose of this work. 
 
 It is not to be denied that there is, on the part of 
 many, an inclination to look with disapproval upon 
 complaints made against the courts by members of 
 the legal profession. This, however, is but the result 
 of ignorance of the peculiar relations existing between 
 judges and practitioners at the bar — relations which 
 are most accurately expressed by the doctrine of fel- 
 low-servants, in force in this state. Fellow-servants, 
 according to the definition given by the supreme court 
 in the Moranda Case, 93 111. 302, and 108 111. 576, are 
 those servants of a common master, who are either 
 directly co-operating in the particular work they are 
 about, or are usually consociated in their ordinary 
 duties, so that they may exercise an influence over 
 each other promotive of proper caution. This defini- 
 
PKEFACE. V 
 
 tion, it will be observed, is very broad and comprehen- 
 sive, and admits of a very liberal construction. But 
 no liberality of construction is necessary to make it 
 appear that the judges of the supreme court and the 
 attorney are fellow-servants, for it would seem quite 
 evident that they are either directly co-operating in 
 the particular work they are about, to wit, the admin- 
 istration of justice in a cause being heard, or are 
 usually consociated in their ordinary duties, so as to 
 be able to exercise an influence over each other pro- 
 motive of proper caution ; and they serve the same 
 common master — the people. 
 
 The doctrine in question points out to the servant 
 two duties imposed upon him with respect to his 
 fellow - servant, one being to exercise an influence 
 over him promotive of proper caution for their mutual 
 safety, and the other being, as declared in the Ryan 
 Case, 60 111. 174, to report to the common master such 
 fellow-servant's delinquencies. Both of these duties 
 are discharged by just criticism, by an attorney, of the 
 opinions of a court, and if, in the performance thereof, 
 the attorney subjects himself, in turn, to criticism, it 
 must be regarded as one of the ordinary risks of the 
 service in which he is engaged. 
 
 • There may be those who will deny the propriety of 
 this application of the doctrine of fellow-servants. 
 The question, like any other controverted question of 
 law or fact that may be agitated in the courts, must 
 be admitted to be one not wholly free from doubt ; 
 but inasmuch as the judges, who have formulated the 
 doctrine, have repeatedly differed in opinion from each 
 other as to its application in cases that have arisen and 
 come before them for decision, a mistake on the part 
 of an attorney at law cannot well be regarded as 
 unpardonable. However, the judges have unanimously 
 declared in the Morgenstern Case, 106 111. 220, that 
 
YX PREFACE. 
 
 while the definition of fellow-servants may be a ques- 
 tion of law, it is always a question of fact for the jury, 
 whether a given case falls within the definition ; and 
 to the public, therefore, as the jury, this case will be 
 submitted for decision. 
 
 That the administration of justice in this state is 
 discreditable has long been a matter of common 
 notoriety, but as to who must be held responsible 
 for the injustice done in our courts, there is, of course, 
 a wide difference of opinion. The views entertained 
 by the legislature are, no doubt, correctly expressed, 
 in part at least, by a resolution lately introduced into 
 the state senate, and unanimously adopted, reciting 
 that a great many of the evils existing in the admin- 
 istration of justice, are due to ignorance of the law 
 and inefficiency of the county judges, and calling upon 
 the judiciary committee to frame a law calculated to 
 make them more enlightened and efficient. Those 
 entertained by the supreme court, as gathered from 
 their opinions, would seem to be that the blame for 
 wrongs done to litigants must rest upon the circuit 
 and other inferior judges, and jurors. Those enter- 
 tained by the judges of inferior courts, which are not, of 
 course, to be found in written opinions, but are, never- 
 theless, frequently otherwise expressed in clear aitd 
 unmistakable terms, are that the responsibility for our 
 present lamentable condition of affairs belongs, to a 
 great extent, to the supreme court ; and, it is believed, 
 the same views are entertained by the majority of the 
 intelligent members of the legal profession. Thus, 
 while among all these fellow-servants there is a con- 
 currence of opinion, that that most important business 
 of the common master, the administration of justice, 
 is badly mismanaged, there is a wide divergence of 
 views as to who are the servants at fault. 
 
PREFACE. Vll 
 
 In expressing his own views upon the subject, the 
 author has endeavored to avoid the use of any lan- 
 guage which could be fairly construed as charging the 
 judges of the supreme court with willful wrongdoing. 
 Such a charge would be not only unfounded in fact, but 
 also inconsistent with the friendly feelings entertained 
 towards them by the author. This should be borne 
 in mind in construing as well what is said with refer- 
 ence to their decisions, as the views expressed in the 
 chapter entitled " Bribery by Railway Passes." Hav- 
 ing himself formerly indulged in the practices there 
 condemned, the author has felt at liberty to discuss 
 the subject with the utmost freedom. It is one of vast 
 importance to judges, and, in view of the extraordinary 
 success of railway corporations in the higher courts, 
 it cannot well be regarded as of no concern to the 
 people. 
 
 As to the imperfections of the work, which are no 
 doubt numerous, the reader is respectfully referred to 
 the unanimous opinion of the court, in Schmidt v. 
 Sinnott, 103 111. 168, that, " as man, when representing 
 the highest state of culture and civilization, is con- 
 ceded to be imperfect, it necessarily follows, on the 
 principle a stream can never rise higher than its 
 fountain, all his works are, to some extent, imperfect ; 
 and this principle applies to instructions as well as to 
 every thing else." And it was there ruled that it was 
 not to be expected that instructions would be pre- 
 cisely accurate in every particular, but it was sufficient 
 if they were substantially so. No reason is perceived 
 why the same principle should not extend to a work 
 of this character. It would be very unjust to apply 
 to it the test applied by the supreme court to the 
 instructions in a railroad case, and condemn it for 
 error in single sentences or paragraphs. On the con- 
 trary, it should be viewed as a whole, and if, when 
 
Vlll PBEFACE. 
 
 thus viewed, it appears to do substantial justice, it 
 should not be condemned in toto because detached 
 portions may be objectionable. Certainly, when the 
 supreme court are compelled to acknowledge, as they 
 did in the Wilson Case, 94 111. 426, that in the Fergu- 
 son Case, 90 111. 510, they had unanimously overlooked 
 that provision of our constitution which declares that 
 " the circuit courts shall have original jurisdiction of 
 all causes in law and equity," the errors of an humble 
 member of the profession, whose knowledge of the law 
 is derived chiefly from the Illinois Reports, should be 
 viewed with great charity. 
 
 In the hope that, whatever may be the criticisms to 
 which detached portions may be justly subject, its 
 general scope and tendency will be found to be cor- 
 rect, and confident that, whatever may be its demerits 
 in other respects, it will be a useful collection of deci- 
 sions of the supreme court on both sides of very many 
 of the questions that daily arise in trials by jury, the 
 author respectfully submits the work to the consider- 
 ation of the public and the profession. 
 
 H. T. GILBERT. 
 Ottawa, III., April 7, 1885. 
 
TABLE OF CONTENTS. 
 
 CHAPTER I. 
 
 BAILKOAD CASES REVIEWED. 
 
 Table of cases against four leading railroad companies, 
 
 reviewed by the Supreme Court, . 5 
 
 Results of decisions of the Supreme Court in railroad 
 
 crossing cases, and in actions for causing death by 
 
 wrongful act, neglect, or default, .... 8 
 As to the propriety of an investigation, . 9 
 
 Description of cases in which the judgments of trial courts 
 
 were affirmed by the Supreme Court, 10 
 
 The Sykes Case, 20 
 
 As to questions of rhetoric, ..... 25 
 
 The Johnson Case, . '. 28 
 
 Sailing between Scylla and Charybdis, ... 31 
 
 The Clark Case, ... .... 33 
 
 Whether the knowledge of the servant as to risks, equals 
 
 that of the master, .... .36 
 
 The Warner Case, 37 
 
 Whether instructions must be precisely accurate in every 
 
 particular, ...... 46 
 
 The Moranda Case, . .... 48 
 
 Whether the question of fellow-servants is one of law or 
 
 fact, ... .... 57 
 
 The Dougherty Case, .68 
 
 Reasons for selecting for review the cases of four leading 
 
 railroad companies, ... .85 
 
 Whether justice is obtained freely and without purchase, 
 
 completely and without denial, promptly and without 
 
 delay, . . . 86 
 
 How matters might be made worse, .... 90 
 
 (ix) 
 
X TABLE OF CONTENTS. 
 
 CHAPTER II. 
 
 COMPARATIVE NEGLIGENCE. 
 
 Doctrine of contributory negligence as applied prior to 
 
 the adoption of the rule of comparative negligence, 92 
 Rule of comparative negligence as announced in the 
 
 Jacobs Case, . .95 
 
 Cases classified, . . . ^6 
 
 First Class. — Cases declaring the right of recovery, if the 
 negligence of defendant is greater, more gross, of a 
 higher or far greater degree than, or greatly in ex- 
 cess of, that of plaintiff, ... 97 
 Cases of the First Class overruled, . 104 
 Second Class. — Cases declaring the right of recovery, if 
 the negligence of plaintiff is slight as compared with 
 that of defendant, ... 107 
 Cases of the Second Class overruled, . 109 
 Third Class. — Cases declaring the right of recovery, if 
 plaintiff's negligence is slight, and that of defendant 
 gross, when compared with each other, 112 
 Miscellaneous Cases, .... 114 
 Fourth Class. — Cases declaring that the rule of compara- 
 tive negligence was adopted for the benefit of plaintiffs, 116 
 The Johnson Case, . . 120 
 Comparison of the Johnson Case with previous decisions, 127 
 Views of the Appellate Court of the First District, _ 139 
 Recapitulation, ... 147 
 Lord Coke's observation to the student, . . 149 
 
 CHAPTER in. 
 
 THE BURDEN OF PROOF. 
 
 Views of text-writers upon the question of the burden of 
 
 proof as to contributory negligence, 150 
 
 Cases declaring that the burden is upon plaintiff to prove 
 
 due care on his part, 151 
 
 Cases declaring that the burden is upon the defendant to 
 
 prove contributory negligence, . 155 
 
 Distinction between the two class-s of cases, and whether 
 
 it is a proper one to be drawn, . 158 
 
 Whether due care on the part of plaintiff should be averred 
 
 in the declaration, . . 160 
 
TABLE OF CONTENTS. XI 
 
 CHAPTER IV. 
 
 QUESTIONS OF LAW AND QUESTIONS OF FACT. 
 
 Views of text-writers as to whether negligence is a ques- 
 tion of law or a question of fact, _ . 165 
 
 Cases declaring that negligence is a question of fact for 
 
 the jury, . " 166 
 
 Cases declaring that negligence is a question of law for 
 
 the court, . _ 174 
 
 Reasons in favor of the rule making negligence a question 
 
 of fact for the jury, ..... 186 
 
 CHAPTER V. 
 
 EXCESSITE DAMAGES. 
 
 General rules guiding courts in reviewing findings of 
 
 juries as to damages, . 190 
 
 The Hazzard and McKean Cases, . 192 
 
 Elements to he considered in estimating the damages for 
 
 an injury to the person, 201 
 
 The best bime for a railroad company to cut a lawyer's leg off, 203 
 The argument of counsel for the appellee in the McKean 
 
 Case, 203 
 
 As to whether the amount of damages recoverable for an 
 
 injury resulting in death should be limited, 206 
 
 Influence of passion and prejudice upon a judge, . . 211 
 The Shannon and Weldon Cases, 212 
 
 As to the necessity of evidence as to the earnings of 
 persons for whose death damages are sought to be re- 
 covered, . 215 
 
 The McAra, Welch, Thompson and Fillmore Cases, 217 
 
 The Jackson Case, . 219 
 
 As to the damages recoverable for the loss of both legs, 220 
 
 An important question of variance, . 222 
 
 The Wilson Case, 223 
 
 The pecuniary value of a small boy, ... 225 
 
 The Manly Case, . . 227 
 
 The Austin Case, 229 
 
 As to the rules of philology, . . 233 
 The Moranda Case, ... .238 
 
 As to the rulings of the court prior to Moranda Case, 239 
 
 Whether the law should be amended, . . 247 
 
249 
 
 Xll TABLE- OF CONTENTS. 
 
 CHAPTER VI. 
 
 TRIAL BT JUEY. 
 
 Constitutional and statutory provisions regulating trial by 
 
 jury, . . . _ - 
 
 Views of the Supreme Court as to the character, intelli- 
 gence and fairness of jurors, . . 250 
 Effect upon the Supreme Court of the passion and preju- 
 dice of jurors, . . 256 
 Doctrine of contributory negligence of parents, as applied by 
 
 the Supreme Court in actions for injuries to children, 256 
 Doctrine of contributory negligence, as applied by the Su- 
 preme Court to children* under ten years of age, . 264 
 Doctrine of imputed negligence repudiated in Connecticut, i 
 Ohio, Pennsylvania, and Vermont, _ . 273 1 
 Doctrine of contributory negligence, as applied by the Su- 
 preme Court of the United States to children, 275 
 Doctrine of contributory negligence, as applied in actions 
 
 brought for killing mules, _ 278 
 
 As to the propriety of reflections by the Supreme Court 
 
 upon jurors and trial judges, . . 282 
 
 Reversing judgments without remanding causes, 284 
 
 Whether the Supreme Court may grant more than two 
 
 new trials to the same party in the same cause, 285 
 
 As to the power of the appellate court to reverse judg- 
 ments and enter findings of facts, . . 290 
 Directing a verdict for the defendant, . 302 
 Unjust verdicts and unjust judgments, 314 
 Causes of the prejudice of jurors against railway corpora- 
 tions, . . 317 
 How to preserve the right of trial by jury from destruction, 318 
 Judges and jurors compared, 320 
 Whether appellate courts should review the findings of 
 
 juries as to the facts, . ... 329 
 
 CHAPTER VII. 
 
 INSTRUCTING THE JUBT. 
 
 Origin of the statute requiring instructions tobe in writing, 38 3 
 Construction of the statute, . . 334 
 
TABLE OF CONTENTS. Xlll 
 
 Whether the statute is constitutional, . . 338 
 Rules to guide counsel in preparing, and the trial courts 
 
 in giving instructions, . 344 
 
 The belief of the jury must be founded upon the evidence, 344 
 A case may be decided upon probabilities in favor of the 
 
 side to which the weight of evidence inclines, 348 
 The jury must not speculate on probabilities, but must be 
 
 satisfied from the evidence, . . 350 
 The jury are only required "to believe," and not "to be 
 
 satisfied," from the evidence, 352 
 The jury must decide from their convictions, and not from 
 
 their inclinations, . 356 
 The court may argue the case for the plaintiff, but not for 
 
 the defendant, . 358 
 
 Each single instruction must be correct in itself, . 360 
 
 The Dimick Case reviewed, . . 363 
 
 The instructions must be considered as a whole, . 3S0 
 
 Criminal Cases reviewed, . . 380 
 
 Encumbering a good cause with a multitude of instructions, 390 
 
 Hypercritieism reduced to a fine art, 394 
 Whether an instruction must state all the law governing 
 
 the case, . 402 
 Instructions of doubtful or uncertain meaning, or sin- 
 gling out facts, 403 
 Whether the law may be stated in the language of the 
 
 statute, . 403 
 Copying from the opinions of the Supreme Court, 404 
 When to state, and when not to state the rule of compara- 
 tive negligence, 405 
 Instructing the jury to find for the defendant, 406 
 Expressions of opinion by the judge as to the weight of 
 
 the evidence, . 406 
 
 Construing contracts, v . . 407 
 
 Referring to the indictment for a description of the offense, 407 
 Referring to the declaration for a description of the cause 
 
 of action, . 408 
 Whether plaintiff's instructions must exclude every possi- 
 ble defense, ...... 408 
 
xiv TABLE OF . CONTENTS. 
 
 As to limiting the recovery to the negligence alleged in 
 
 the declaration, 409 
 
 As to curing errors in the admission of evidence, 410 
 
 As to repeating instructions, . 413 
 
 As to misleading instructions, - 414 
 
 When the jury may be instructed to find for plaintiff, 414 
 
 How the jury are presumed to understand instructions, 415 
 
 Abstract propositions of law, - _ 416 
 
 Assuming controverted facts as proven, 416 
 
 Connecting discordant propositions, _ 417 
 
 As to instructions that are involved, 417 
 
 The fortieth and only safe rule for the circuit court, 417 
 
 Difficulties surrounding the circuit judge, 418 
 
 As to exceptions to instructions, _ 419 
 
 Evils existing under the statute, 420 
 
 Proposed change of the law, with reasons in favor thereof, 423 
 
 An' oral charge, 431 
 System of written instructions, as illustrated by the 
 
 Dimick Case, . - 436 
 
 CHAPTER VIII. 
 
 THE APPELLATE COURTS. 
 
 Constitutional provision, ... 449 
 Assignment of the judges, • . 450 
 Whether the judges of the Supreme Court should be re- 
 quired to hold circuit courts, 453 
 As to allowing to plaintiffs appeals to the Supreme Court 
 
 in actions ex delicto, 454 
 The Garland and Moranda Cases compared, 455 
 As to allowing appeals to the Supreme Court from judg- 
 ments reversing and remanding, 459 
 A " positively mischievous " instruction, . . 461 
 The Shannon Case, 465 
 As to when evidence is insufficient to prove permanent 
 
 injury, 467 
 Whether the loss of an arm causes pain, or impairs the 
 
 party's ability to pursue his business, . 470 
 
TABLE OP CONTENTS. XV 
 
 Why appeals should be allowed from judgments reversing 
 
 and remanding, * _ . 472 
 As to restricting the Supreme Court to important questions 
 
 of law, . . . 474 
 
 The Morrissey Case, ... 476 
 
 A model petition for a rehearing, 477 
 Whether the apuellate courts should write opinions in all 
 
 cases, ... 485 
 
 As to remanding causes, . . 486 
 
 As to the terms of the appellate courts, ... 487 
 
 CHAPTER IX. 
 
 BBIBEKT BY BAILWAT PASSES. 
 
 Arguments against, and in favor of the free pass system, 489 
 
 As to who complain of the free pass system, 490 
 Corruption condemned by " the wisest, brightest, meanest 
 
 of mankind," . 491 
 Whether immoral practices are excusable because many 
 
 are guilty of them, . _ 491 
 
 Importance of the free pass question to tbe people, . 492 
 
 As to the purpose for which free passes are given, . 494 
 
 As to the effect of free passes upon their recipients, 495 
 Rules laid down by judges as necessary to be' applied to 
 
 jurors, . 496 
 How the judges of an appellate court might stultify 
 
 themselves, . 498 
 Whether judges are justified in using free passes because 
 
 they travel upon public business, . - 499 
 Whether judges of the supreme and circuit courts, in ac- 
 cepting free passes, violate the constitution, 501 
 As to the effect of the free pass system upon the public, 502 
 The sermons of Hugh Latimer, . - 503 
 How Cambyses disposed of the bribe-taker, 504 
 " It will never be merry in Illinois till we have the skins 
 
 of such." 506 
 
XVI TABLE OF CONTENTS. 
 
 CHAPTER X. 
 
 BEMEDIES. 
 
 Abolishment of the free pass system, . 507 
 
 As to the salaries of public officials, . _ 508 
 
 Amendment of the statute in relation to costs, 509 
 
 As to the effect of the present statute as to costs, _ . 510 
 Whether the successful party should pay costs occasioned 
 
 • by the errors of trial courts, 512 
 Amendment of the statute requiring instructions in writ- 
 ing, . .513 
 Amendment of the statute allowing the overruling of a 
 
 motion for a new trial to be assigned for error, 514 
 Amendment of the statute requiring compensation for 
 
 causing death by wrongful act, neglect, or default, 516 
 As to the propriety of allowing damages for injuries 
 
 resulting in death, -_ 517 
 Whether appellate courts should review questions of law 
 
 or of fact, affecting the amount of damages, - 520 
 Whether contributory negligence should be a defense, 522 
 As to the burden of proof as to contributory negligence, 
 and whether contributory negligence should be a de- 
 fense to an action for an injury to an infant, _ 526 
 Amendment of the law in relation to master and servant, 528 
 As to the doctrine of fellow-servants, _ 529 
 Whether notice to the servant, of risk should relieve the 
 
 master from liability for negligence, _ 551 
 
 As to limiting the number of new trials, _ 554 
 
 As to the finding of facts by the appellate court, . _ 555 
 
 As to appeals from the appellate courts, _ 558 
 
 As to comparative negligence, _ . 560 
 
 The best remedy — the abandonment of technicalities, 561 
 
TABLE OF CASES. 
 
 Abend v. T. H. & I. R. R. Co., Ill 111. 206 536 
 
 Adams v. Smith, 58 111. 418 390 
 
 Aurora Br. R. R. Co. v. Grimes, 13 111. 585 93, 143 
 
 Austin v. C, R. I. & P. R. R. Co., 91 111.35 7, 231 
 
 Bailey v. Godfrey, 54 111. 509 414 
 
 Bandalow v. The People, 90 111. 220 416 
 
 Beers v. Housatonic R. R. Co., 19 Conn. 566 95 
 
 Beldent). Woodmansee, 81 111.28 347, 407 
 
 B. & I. R. R. Co. v. Snyder, 18 Ohio St. 408 — . 273 
 
 Brown v. City of Aurora, 109 111. 166 295 
 
 Brown v. The People, 4 Gilm. 441 7 334 
 
 Buchanan v. Dodds, 6 Brad. 25 355 
 
 Burling v. I. C. R. R. Co., 85 111. 19 .._. 7 
 
 Butterfield v. Forrester, 11 East. 60 94 
 
 Camp Point Mfg. Co. «>.-Ballou, 71 111. 417. 372 
 
 C. & A. R. R. Co. v. Becker, 84 111. 484.... ._ 225 
 
 C. & A. R. R. Co. v. Bonifield, 104 111. 224 170 
 
 C. & A. R. R. Co. v. Bragonier, 11 Brad. 522 460 
 
 C. & A. R. R. Co. v. Gregory, 58 111. 227 258 
 
 C. & A. R. R. Co. v. Gretzner, 46 111.83 75, 80, 99, 116 
 
 C. & A. R. R. Co. v. Hogarth, 38 DL 428 98 
 
 C. & A.R. R. Co. v. May, 108 111 - 530, 535 
 
 C. & A. R. R Co. v. McKenna, 14 Brad. 472 291 
 
 C. & A. R. R. Co. v. Mock, 72 111. 141 409 
 
 C. & A. R. R. Co. v. Murray, 62 111. 329 
 
 101, 108, 264, 275, 278, 360, 527 
 
 C. & A. R. R. Co. v. Pennell, 94 111. 448 144, 168 
 
 C. & A. R. R. Co. v. Pondrom, 51 111. 337 107, 116, 119 
 
 (xvii) 
 
Xviii TABLE OF CASES. 
 
 C. & A. R. E. Co. v. Shannon, 43 111. 346 212, 214, 240 
 
 C. & A. R. R. Co. v. Sullivan, 63 111. 294 108 
 
 C. & A. R. R. Co. v. Wilson, 63 111. 170 _„_ 223 
 
 C. & N. W. R'y Co. v. Button, 68 El. 409 5 
 
 C. & N. W. R'y Co. v. Chisholm, 79 111. 584 6 
 
 C. & N. W. R'y Co. r. Clark,70Ill. 276—5,8, 104, 109, 849, 357 
 
 C. & N. W. R'y Co. v. Coss, 73 111. 394 6, 162, 178 
 
 C. & N. W. R'y Co. v. Dimi'ck, 96 111. 42 
 
 6, 8, 106, 114, 325, 363, 392, 403, 408, 436, 481 
 
 C. & N. W. R'y Co. v. Donahue, 75 111. 106 6 
 
 C. & N. W. R'y Co. v. Fillmore, 57 111. 267 219 
 
 C. & N. W. R'y Co. v. Hatch, 79 111. 137 6, 8, 181, 355 
 
 C. & K W. R'y Co. v. Jackson, 55 111. 493 219 
 
 C. & N. W. R'y Co. v. Moranda,93 111. 302 ; 108111. 576. .. 
 
 6, 8, 49, 58, 88, 208, 238, 293, 
 299, 458, 475, 520, 529, 535, 543, 5E8 
 
 C. & N. W. R'y Co. v. Ryan, 70 111. 212 ■_ 7, 11 
 
 C. & N. W. R'y Co. v. Scates, 90 111. 586 6, 183 
 
 C. & N. W. R'y Co. v. Swett, 45 111. 197 49 
 
 C. & N. W. R'y Co. v. Taylor, 69 111. 462 7, 8, 10 
 
 C. & E. I. R. R. Co. v. O'Connor, 13 Brad. 63 394 
 
 C. & R. I. R. R. Co. v. McKean, 40 111. 238 
 
 196, 203, 209, 211, 250, 289, 318, 355, 380 
 
 C. & R. I. R. R. Co. v. Still, 19 111. 508 78, 99 
 
 C. & St. L. R. R. Co. v. Woolsey, 85 111.. 373 157 
 
 C. &Tomah R. R. Co. v. Simmons, 11 Brad. 150 310 
 
 C, B. & Q. R. R. Co. v. Avery, 109 111. 314 7, 19, 87, 300 
 
 C, B. & Q. R. R. Co. v. Bryan, 90111 126 6 
 
 C, B. & Q. R. R. Co. v. Cauffman,"38 111. 428 79, 99 
 
 C, B. & Q. R. R. Co. v. Clark, 2 Brad. 600 56 
 
 C, B. & Q. R. R. Co. v. Damarell, 81 111. 450 6, 8, 175 
 
 C, B. & Q. R. R. Co. v. Dickson, 88 111. 431 7, 18 
 
 C, B. & Q. R. R. Co. v. Dougherty, 110 111. 521 
 
 6, 8, 20, 68, 88, 142, 300 
 C, B. & Q. R. R. Co. v. Dunn, 52 111. 453; 61 111. 387... 101, 107 
 
 C, B. & Q. R. R, Co. v. Gregory, 58 111. 282 107^ 153 
 
 C, B. & Q. R. R. Co. v. Hale, 83 111. 360 ' 6 
 
 C, B. & Q. R. R. Co. v. Harwood, 80 111. 88; 90 111. 425 
 
 6, 8, 110, 134, 152, 359, 362, 368 
 
TABLE OF CASES. xix 
 
 C, B. & Q. R. R. Co. v. Hazzard, 26 111. 377 
 
 161, 192, 201, 211, 252, 315 
 
 C, B. & Q. R. R. Co. v. Johnson, 103 111. 512 
 
 6, 8, 20, 28, 65, 69, 88, 97, 120, 
 137, 163, 263, 298, 379, 397, 417, 468 
 
 C, B. & Q. R. R. Co. v. Lee, 87 111. 455; 68 111. 576 
 
 5, 7, 8, 15, 16, 101, 118, 361 
 
 C, B. & Q. R. R. Co. v. McLallen, 84 111. 109 7, 8, 14 
 
 C, B. & Q. R. R. Co. v. Parks, 18 111. 469 251 
 
 C, B. & Q. R. R. Co. v. Payne, 49 111. 503; 59 111. 541____ 
 
 100, 374, 408, 480 
 
 C, B. & Q. R. R. Co. v. Rosenfeld, 70 111. 272 5, 8 
 
 C, B. & Q. R. R. Co. v. Stumps, 55 111. 374; 69 111. 410 
 
 5, 144, 168, 284 
 
 C, B. & Q. R. R. Co. v. Sykes, 96 111. 162 
 
 6, 8, 20, 88, 298, 405, 417, 558 
 C, B. & Q. R. R. Co. v. VanPatten,74I11.91; 64111. 512... 
 
 .6, 8, 114, 118, 129, 154, 176, 183, 255, 325 
 
 C, B. & Q. R. R. Co. v. VanHagen, 2 Brad. 602 294 
 
 C, B. & Q. R. R. Co. v. Warner, 108 111. 540 
 
 6, 20, 37, 88, 299, 470, 558 
 Chicago, Milwaukee & St. P. R'y Co. v. Ross, 112 U. S. 377. . . 
 
 543, 547 
 
 C, R. I. & P. R. R. Co. v. Austin, 69 111. 426 
 
 5, 8, 229, 246, 520 
 
 C, R. I. & P. R. R. Co. v. Bell, 70 111. 102 5, 8, 284 
 
 C, R. I. & P. R. R. Co. v. Clark,108I11.114;llBrad.l05.- 
 
 6, 8, 20, 31, 33, 88, 154, 162, 299, 405, 552, 558 
 
 C, R. I. & P. R. R. Co. v. Lewis, 109 111. 121 7, 19, 300 
 
 C, R. I. & P. R. R. Co. v. McAra, 52 111. 297 216 
 
 C, R. I. & P. R. R. Co. v. McKittrick, 78 111. 619.. 6 
 
 C, .R. I. & P. R. R. Co. v. Payzant, 87 111. 125 6 
 
 C, R. I. & P. R. R. Co. v. Riley, 74 111. 70 6 
 
 C. W. D. R'y Co. v. Bert, 69 111. 388 101 
 
 City of Bloomiugton v. Chamberlain, 104111. 273... 171 
 
 City of Bloomington v. Goodrich, 88 111. 558... 409 
 
 City of Chicago v. O'Brennan, 65 111. 160 244 
 
 City of Chicagot). Powers, 42 111. 173 239, 244 
 
 City of Chicago v. Scholten, 75 111. 470. 215, 469 
 
xx TABLE OF CASES. 
 
 City of Chicago v. W. & L. 0. & L. Mfg. Co., 14 Brad. 3 24. . 383 
 
 City of Freeport v. Isbell, 83 111. 443 345, 357, 403 
 
 City of Joliet v. Seward, 86 111. 406 105 
 
 City of Peoria v. Simpson, 110 111. 304 360 
 
 Clark v. C, B. & Q. R. R- Co., 92 111. 42 7, 44, 293 
 
 Cole v. The People, 84 111. 216 372 
 
 Continental Improvement Co. v. Stead, 95 U. S. 165 44, 327 
 
 Cook v. Hunt, 21 111. 550 337 
 
 Cox v. The People, 109 111. 459 356 
 
 Crabtree v. Reed, 50 111.207 348, 353 
 
 Crowley v. Crowley, 80 111. 469 303, 312 
 
 Daily v. Daily, 64 111. 334 ,,- - — 410 
 
 Dickson v. C, B. & Q. R. R. Co. 77111. 331. _ 18 
 
 Dimick v. C. & N. W. R'y Co., 80 111. 338 7 
 
 Dougherty v. C, B. & Q. R. R. Co., 86 111. 467 7 
 
 Doyle v. Jessup, 29 111. 462 1 518 
 
 Dunn v. The People, 109 111. 635 _. 385 
 
 Durham v. Goodwin, 54 111.471 416 
 
 Dyer v. Talcott, 16 111. 300 151 
 
 E. St. L. P. & P. Co. v. Hightower, 92 HI. 141 111 
 
 Eubanksfl. The People, 41 111.486 380 
 
 Ewingtf. C. & A. R. R. Co., 72 111. 26. 155 
 
 Ewing v. Runkle, 20 111. 464 ...344, 402 
 
 First Nat. Bank v. Eitenmiller, 14 Brad. 26 141, 146, 398 
 
 Fisher v. Stevens, 16 111.397 391 
 
 Foster v. C. & A. R. R. Co., 84 111. 168. 133 
 
 Frames Badger, 79 111.446... 406 
 
 Fraser*;. Howe, 106 111, 573.. 306 
 
 G. & C. U. R. R. Co. v. Dill, 22 111. 271 97, 167, 176 
 
 G. & C. U. R. R. Co. v. Jacobs, 20 111. 440 92, 95, 143, 334 
 
 G. & C. U. R. R. Co. v. Yarwood, 17 111. 509 166, 183 
 
 Garland v. C. & N. W. R'y Co., 8 Brad. 571 455 
 
 Gizler v. Witzel, 82 111. 325 346 
 
 Graves v. Colwell, 90 111. 618 "_ 353 
 
 Great Western R. R. Co. v. Haworth,39 111. 346.. 138, 144, 168 
 
TABLE OF CASES. Xxi 
 
 Herrick v. Gary,83 111. 85 352 
 
 Hessingu. McCloekey, 37 111. 351... 402 
 
 Hill v. Ward, 2 Gilm. 293 ". 419 
 
 Houston v. Williams, 13 Cal. 24 338, 342 
 
 Howe Machine Co. v. Rosine, 87 111. 106... 411 
 
 Hubner v. Feige, 90 111. 212 414 
 
 I. C. R. R. Co. v. Baches, 55 111. 389 117, 241, 858, 392, 520 
 
 I. C. R. R. Co. v. Benton, 60 111. 174 5, 8 
 
 I. C. R. R. Co. v. Bull, 72 111. 537 6 
 
 I. C. R. R. Co. v. Chambers, 71 111. 519 ____5, 284 
 
 I. C. R. R. Co. v. Cragin, 71 111. 177 5,' 8, 109, 130, 284 
 
 I. C. R. R. Co.V Ebert, 74 111. 399 7, 13 
 
 I. C. R. R. Co. v. Frelka, 110 111. 498 7, 19, 87, 300 
 
 I. C. R. R. Co. v. Goddard, 72 111. 567 ,6 8, 112, 175, 326 
 
 I. C. R. R. Co. v. Godfrey, 71 I1L 500 5 
 
 I. C. R. R. Co. v. Green, 81 111. 19 6, 284 
 
 I. C. R. R. Co. v. Hall, 72 111. 222 6, 114, 284 
 
 I. C. R. R. Co. v. Hammer, 72 111.347; 85 111. 526.. 6, 109, 118 
 
 I. C. R. R. Co. v. Hetherington, 83 111. 510.. 6, 8 
 
 I. C. R. R. Co. v. flouck, 72 111. 285 6, 8, 284 
 
 I. C. R. R. Co. v. Keen, 72 111. 512 6, 8, 53, 284 
 
 I. C. R. R. Co. v. Lutz, 84 111. 598 6, 284 
 
 .1. C. R. R. Co. v. Maffit, 67 111. 434 115, 361 
 
 I. C. R. R. Co. v. Middlesworth, 43 111. 66 ; 46 111. 496.... 
 
 97, 128, 253, 278, 523, 562 
 
 I. C. R. R. Co. v. Modglin, 85 111. 481.. G 
 
 I. C. R. R. Co. v. Parks, 88 111. 374 7. 114 
 
 I. C. R. R. Co. v, Patterson, 69 111. 650 ; 93 111. 290.. .. 
 
 5, 6, 284, 287, 289 
 
 I. C. R. R. Co. v. Schultz, 64 111. 176. 114 
 
 I. C. R. R. Co. v. Simmons, 38 111. 243 161 
 
 I. C. R. R. Co. v. Welch, 52 111. 188 217, 254 
 
 I. C. R. R. Co. v. Weldon, 52 111. 295... 213, 214, 234, 240, 246 
 
 I. C. R. R. Co. v. Whittemore, 43 111. 420 63 
 
 I. & St. R. R. Co. v. Evans, 88 111. 65 _ 119, 152, 162 
 
 I. & St. R. R. Co. v. Morganstern, 106 111. 220. 172, 543 
 
 I. & St. R. R. Co. v. Stables, 62 111. 213 82, 108, 118 
 
xxii TABLE OF CASES. 
 
 Keeler v. Stuppe, 86 HI. 311 413 
 
 Kendall v. Brown, 86 111. 387 389 
 
 Kennedy v. The People, 40 111. 489 381, 410 
 
 Keokuk Packet Co. v. Henry, 50 111. 269 98 
 
 Kepperly v. Ramsden, 83 111. 357 151, 336 
 
 Kerr v. Forgue, 54 111. 484 ' 270 
 
 Kinnard v. Burton, 12 Shepley, 39 95 
 
 Kinney v. The People, 108 111. 527 384 
 
 Kiibjv. Wilson, 98 111. 244 404 
 
 L., B. & M. R. R,Co. v. Winslow, 66 111. 222 410 
 
 Lander ». The People, 104 111. 248 3*4 
 
 Lawrence v. Hagerman, 56 111. 76 '. 388 
 
 Leigh v. Hodges, 3 Scam. 17 419 
 
 Logg v. The People, 92 111.603 408 
 
 Manrose v. Parker, 90 111. 581 337 
 
 Martin v. Johnson, 89 111. 538 346 
 
 Mass. M. L.Ins. Co. v. Robinson, 98 111.331 415 
 
 McCutcheon v. The People, 69 111.604 369 
 
 McNamara v. King, 2 Gilm. 436 192, 224 
 
 Merritt v. Merritt, 20 111. 80 402 
 
 Moody v. Peterson, 11 Brad. 185 147 
 
 Moore v. Wright, 90 111. 473 403 
 
 Murphy v. The People, 37 111. 458 380 
 
 Murray v. McLean, 57 111. 380 145 
 
 New Orleans R. R. Co. v. Burke, 53 Miss. 2C0 67 
 
 North Chicago Rolling Mill Co. v. Morrissey (unreported) 
 
 476, 510, 557 
 
 Nudd v. Burrows, 91 U. S. 441 339 
 
 O. & M. R. R. Co. *. Irvin, 27 111. 179 400 
 
 O. & M. R. R. Co. v. Shanefelt, 47 111. 499 100. 
 
 O., 0. & F. R. V. R. R. Co. v. McMath, 4 Brad. 356 355 
 
 Park®. Ross, 11 Howard, 362 305 
 
 Parker v. Fisher, 39 111. 171 345 
 
 Parker v. The People, 97 111. 37 407 
 
 Pawling v. United States, 4 Cranch. 221 305 
 
TABLE OP CASES. XXlli 
 
 Peak fl. The People, 76 111. 295 350 
 
 Pennsylvania Co. v. Conlan, 101 111. 96 
 
 41, 144, 169, 188, 236, 305 
 
 Pennsylvania Co. v. Lynch, 90 111. 334 551 
 
 Pennsylvania Co. v. Rudel, 100 111. 603 174 
 
 Peoria Bridge Association v. Loomis, 20 111. 251 97 
 
 Peoria, P. & J. R. R. Co. v. Siltman, 67 111. 72 73, 76, 238 
 
 P., C. & St. L. R'y Co. v. Shannon, 11 Brad. 222 465 
 
 P., C. & St. L. R'y Co. v. Thompson, 56 111. 143 218 
 
 P., Ft. W. & C. R. R. Co. v. Bumstead, 48 111. 224 256 
 
 Phillips v. Dickerson, 85 111. 15 305 
 
 Poleman v. Johnson, 84 111. 270 304 
 
 Protection Life Ins. Co. v. Dill, 91 111. 174 354 
 
 Quincy Coal Co. v. Hood, 77 111. 71__. -— 242 
 
 Qninn v. Donovan, 85 111. 196 • 417 
 
 Railroad Company v. Gladmon, 15 Wall. 401 275, 431, 527 
 
 Ray v. Wooters, 19 111. 82 .. 335 
 
 Ree&v. Derfed, 8 Allen, 524 305 
 
 Ritzman v. The People, 110 111. 370 387 
 
 R., R. I. & St. L. R. R. Co. v. Delaney, 82 111. 198.113, 270, 278 
 
 R., R. I. & St. L. R. R. Co. v. Hillmer, 72 111. 240 79 
 
 Ryan v. C. & N. W. R'y Co., 60 111. 171.. •_ 11 
 
 Ryan*?. Donelly, 71 111. 10S 46, 416 
 
 St. L., A. & T. H. R. R. Co. v. Manly, 58. 111. 306 
 
 112, 117, 227, 255, 320 
 
 St. L., A. & T. H. R. R. Co. v. Todd, 36 111. 414 98 
 
 St. L. & S. E. R'y Co. v. Britz,72Ill. 260 131 
 
 Schmidt v. C. & N. W. R'y Co., 83 111. 405 7 
 
 Schmidt v. Sinnott, 103 111. 160 46, 142, 462 
 
 Scott v. Shepherd, 2 Blackstone, 892... 546 
 
 Silsbe v. Lucas, 53 111. 481 -'-285, 288 
 
 Simmons v. Ch. & T. R. R. Co. 110 111. 340... 63, 307, 313, 406 
 
 Smalley v. Smalley, 81 111. 71 519 
 
 Smith a. Gillett, 50 111. 300 - 302 
 
 Stanherry v. Moore, 56 111. 473 287, 289 
 
 Steamboat New World v. King, 16 How. 474 - 29 
 
XXIV TABLE OF CASES. 
 
 Sterling Bridge Co. v. Pearl, 80 111. 256 131 
 
 Stratton v. Cent. City Horse R'y Co., 95 111. 25. 134, 354 
 
 Stumps v. Kelley, 22 111. 142 335, 406 
 
 T., P. & W. R'y Co. v. Bray, 57 111. 514 144 
 
 T., W. & W. R'y Co. v. Grable, 88 111. 443 105, 260, 178 
 
 T., W. & W. R'y Co. v. Harmon, 47 111. 304 561 
 
 T., W. & W. R'y Co. v. Ingraham, 77 111. 309 389 
 
 T., W. & W. R'y Co. v. Lockhart, 71 111. 629 347 
 
 T., W. & W. R'y Co. v. O'Connor, 77 111. 391 49 
 
 T., W. & W. R'y Co..Spencer, 68 111. f 28 _ 114 
 
 Town of Fox v. Town of Kendall, 97 111. 72 373, 403 
 
 Town of Grayville v. Whittaker, 85 HI. 441 133 
 
 Upstonew. The People, 109 111. 169 385 
 
 Wabash Railway Co. v. Hencks, 91 111. 406 83, 405 
 
 W., St. L. & P. R'y Co. v. Moran, 13 Brad. 75 44, 139, 398 
 
 W., St. L. & P. R'y Co. v. Wallace, 110 111. 117 236 
 
 W., St. L. & P. R'y Co."t>. Shacklet, 105 111. 370 163 
 
 WoJbrecht v. Banmgarten, 26 111. 291 285, 289 
 
 Warners Crandall, 65 111. 195 _, 350 
 
 Warner v. Dunavan, 23 111. 380 145 
 
 Western Union Tel. Go. v. Quinn, 56 111. 320 A01, 560 
 
 Wilson d. McKenna, 52 111. 43 i _„ 510 
 
RAILROADS AND THE COURTS. 
 
 CHAPTER I. 
 
 RAILROAD CASES REVIEWED. 
 
 The reports of the Supreme Court of Illinois show 
 that from the commencement of its June term, 1873, 
 to the commencement of its June term, 1884, there 
 were submitted to and decided by the court fifty-six 
 cases, in all, of appeals taken by the four leading rail- 
 road companies of the state in cases involving the law 
 of negligence in which there had been jury trials in 
 the circuit courts. In the following forty-six of these 
 cases the supreme court reversed the judgments of the 
 lower courts: 
 
 C. & N. W. R'y Co. v. Button, 68 111. 409. 
 C, B. & Q. R. R. Co. v. Lee, 68 111. 576. 
 C, B. & Q. R. R. Co. v. Stumps, 69 111. 410. 
 I. C. R. R. Co. v. Benton, 69 111. 174 
 C, R. I. & P. R. R. Co. v. Austin, 69 111. 426. 
 I. C. R. R. Co. v. Patterson, 69 111. 650. 
 C, R. I. & P. R. R. Co. v. Bell, 70 111. 102. 
 C, B. & Q. R. R. Co. v. Roseneeld, 70 111. 272. 
 5 
 
RAILROAD CASES REVIEWED. 
 
 C. & N. W. R'y Co. v. Clark, 70 111. 276. 
 
 I. C. R. R. Co. v. Cragin, 71 111. 177. 
 
 I. C. R. R. Co. v. Godfrey, 71 111. 500. 
 
 I. C. R. R. Co. v. Chambers, 71 111. 519. 
 
 I. C. R. R. Co. v. Hall, 72 111. 222. 
 
 I. C. R. R. Co. v. Houck, 72 111. 285. 
 
 I. C. R. R. Co. v. Hammer, 72 111. 347. 
 
 I. C. R. R. Co. v. Keen, 72 111. 512. 
 
 I. C. R. R. Co. v. Bull, 72 111. 537. 
 
 I. C. R. R. Co. v. Goddard, 72 111. 567. 
 
 C. & N. W. R'y Co. v. Coss, 73 111. 394 
 
 C, R. I. & P. R. R. Co. v. Riley, 74 111. 70. 
 
 C, B. & Q. R. R. Co. v. Van Patten, 74 111. 91. 
 
 C. & K W. R'y Co. v. Donahue, 75 111. 106. 
 
 C, R. I. & P. R. R. Co. v. McKittrick, 78 111. 619. 
 
 C. & N. W. R'y Co. v. Hatch, 79 111. 137. 
 
 C. & N. W. R'y Co. v. Chisholm, 79 111. 584. 
 
 C, B. & Q. R. R. Co. v. Harwood, 80 111. 88. 
 
 I. C. R. R. Co. v. Green, 81 111. 19. 
 
 C, B. & Q. R. R. Co. v. Damerell, 81 111. 450. 
 
 C, B. & Q. R. R. Co. v. Hale, 83 111. 360. 
 
 I. C. R. R. Co. v. Hetherington, 83 111. 510. 
 
 I. C. R. R. Co. v. Lutz, 84 111. 598. 
 
 I. C. R. R. Co. v. Modglin, 85 111. 481. 
 
 I. C. R. R. Co. v. Hammer, 85 111. 526. 
 
 C, R. I. & P. R. R. Co. v. Payzant, 87 111. 125. 
 
 C, B. & Q. R. R. Co. v. Bryan, 90 111. 126. 
 
 C, B. & Q. R. R. Co. v. Harwood, 90 111. 425. 
 
 C. & N. W. R'y Co. V Scates, 90 111. 586. 
 
 I. C. R. R. Co. v. Patterson, 93 111. 290. 
 
 C. & N. W. R'y Co. v. Moranda, 93 111. 302. 
 
 C. & N. W. R'y Co. v. Dimick, 96 111. 42. 
 
 C, B/& Q. R. R. Co. v. Sykes, 96 111. 162. 
 
 C, B. & Q. R. R. Co. v. Johnson, 103 111. 512 
 
 C, R. I. & P. R. R. Co. v. Clark, 108 111. 114. 
 
 C, B. & Q. R. R. Co. v. Warner, 108 111. 540. 
 
 C. & N. W. R'y Co. v. Moranda, 108 111. 576. 
 
 C, B. & Q. R. R. Co. v. Dougherty, 110 111. 521. 
 
RAILROAD CASES REVIEWED. 7 
 
 In the following ten cases the judgments of the 
 lower courts were affirmed: 
 
 G. & N. W. R'y Co. v. Taylor, 69 111. 462. 
 
 C. & N. W. R'y Co. v. Ryan, 70 111. 212. 
 
 I. C. R. R. Co. v. Ebeet, 74 111. 399. 
 
 C, B. & Q. R. R. Co. v. McLallen, 84 111. 109. 
 
 C, B. & Q. R. R. Co. v. Lee, 87 111. 455. 
 
 C.,-B. & Q. R. R. Co. v. Dickson, 88 111. 431. 
 
 I. C. R. R. Co. v. Parks, 88 111. 374. 
 
 C, R. I. & P. R. R. Co. v. Lewis, 109 111. 121. 
 
 C, B. & Q. R. R. Co. v. Avery, 109 111. 314. 
 
 I. C. R. R. Co. v. Frelka, 110 111. 498. 
 
 Of these 'fifty-six cases nine were appeals from the 
 appellate courts, in six of which the judgments were 
 reversed and in three affirmed. In these nine cases 
 there were sixteen judgments rendered against the 
 railroad companies by the circuit courts, of which 
 three, as before stated, were affirmed, and the remain- 
 ing thirteen were reversed by the appellate and 
 supreme courts. 
 
 On the other hand, there were during the same 
 period of time six cases of the same class in which 
 these same railroad companies appear as appellees. 
 In the following four of these cases the supreme court 
 affirmed the judgments of the lower courts: 
 
 Burling v. I. C. R. R. Co., 85 111. 19. 
 Dougherty v. C, B. & Q. R. R. Co., 86 111. 467. 
 Austin v. C, R. I. & P. R. R. Co., 91 111. 35. 
 Clark v. C, B. & Q. R. R. Co., 92 111. 43. 
 
 In the following two the judgments of the lower 
 courts were reversed: 
 
 Dimick v. C. & N. W. R'y Co., 80 111. 338. 
 Schmidt v. C. & N. W. R'y Co., 83 111. 405. 
 
8 RAILROAD CASES REVIEWED. 
 
 In the preparation of the foregoing lists great care 
 has been taken to secure accuracy, and it is believed 
 no case has been omitted. However, any errors that 
 may have intervened would not materially change 
 the proportion of reversals to affirmances above shown. 
 There are several other cases in which the railroad 
 companies named were parties involving the law of 
 negligence* but as there were no trials by jury in them 
 they have been omitted from the lists. 
 
 The Bell Case, 70 111. 102, the Cragin Case, 71 111. 
 177, the Goddard Case, 72 111. 567, the Van Patten Case, 
 74 111. 91 (also 64 111. 512), the Harwood Case, 80 111. 
 88, and 90 111. 425, the Dimick Case, 96 111. 42, the 
 Dougherty Case, 110 111. 521 (also 12 Brad. 181), the 
 Lee Case, 87 111. 454 (also 60 111. 501 and 68 111. 576), 
 the Benton Case, 69 111. 174, the Rosenfeld Case, 70 111. 
 272, the Hatch Case, 79 111. 167, and the Damerell 
 Case, 81 111. 450, were actions brought against the 
 railroad companies for injuries occasioned by collisions 
 at highway and street crossings, resulting, in the first 
 eight cases, in death, and in the last four the injuries 
 being merely to the person of the plaintiff or to per- 
 sonal property. In these twelve actions seventeen 
 judgments were rendered against the defendants in 
 the circuit courts, of which one was reversed by the 
 appellate court and fifteen were reversed by the 
 supreme court. But one was affirmed by the supreme 
 court, being that in the Lee Case, 87 111. 454, which 
 was affirmed by a divided court, after two prior judg- 
 ments had been reversed. 
 
 The Taylor Case, 69 111. 463, the McLallen Case, 84 
 111. 109, the Austin Case, 69 111. 426, the Clark Case, 70 
 111. 276, the Houck Case, 72 111. 285, the Keen Case, 72 
 111. 512, the Hetherington Case, 83 111. 510, the Moranda 
 Case, 93 111. 302, (also 108 111. 576,) the Sykes Case, 96 
 111. 162 (also 1 Brad. 520), the Johnson Case, 103 111. 
 
RAILROAD OASES REVIEWED. 9 
 
 512, and the Clark Case, 108 111. 117 (also 11 Brad. 
 105), were actions brought against the railroad com- 
 panies for injuries occasioned at places other than 
 highway and street crossings and resulting in death. 
 In these eleven cases fourteen judgments were ren- 
 dered against the defendants in the circuit courts, of 
 which two were reversed by the appellate court, ten 
 by the supreme court, and but two were affirmed by 
 the supreme court, to wit, the Taylor and McLallen 
 Cases. Thus out of a total of twenty-seven judgments 
 rendered by the circuit courts against the defendants 
 in the nineteen cases in which death resulted from 
 the injuries, three were reversed by the appellate 
 court, twenty-one by the supreme court, and but three 
 were affirmed by the supreme court. 
 
 In view of the fact that the reports of all the cases 
 decided by the supreme court show that the judgments 
 affirmed greatly exceed in number those reversed, and 
 that the last ten volumes of reports (101 to 110, both 
 inclusive) show that, in criminal cases involving the 
 life or the liberty of the citizen, and in which the 
 defendant is entitled to the benefit of every reasonable 
 doubt, three judgments out of five have been affirmed, 
 the reasons why these four railroad companies have 
 been so successful in their appeals to that court, in the 
 class of cases under consideration, must certainly be 
 regarded as worthy of investigation. This remarkable 
 success of these corporations does not, of itself alone, 
 authorize us to assume that they enjoy any advantages, 
 so far as the court is concerned, not enjoyed by other 
 litigants, but it does, upon its very face, warrant the 
 inference that there is something wrong somewhere, 
 and it furnishes a sufficient justification for an en- 
 deavor to ascertain, if possible, whether our machinery 
 for the administration of justice is, in truth and in 
 fact, so perfect that, in suits of the above character in 
 
10 RAILROAD CASES REVIEWED. 
 
 all our courts, the respective parties "receive the same 
 measure of justice that is meted out in a suit between 
 John Doe and Richard Roe." The purpose of the 
 people in the establishment of the circuit courts was, 
 no doubt, to provide tribunals which should correctly 
 decide cases according to the law and the evidence 
 and do even-handed justice between the parties liti- 
 gant, and while it is not expected that they can always 
 decide correctly and a reasonable number of errors on 
 their part might be regarded as unavoidable; yet if, 
 in a particular class of cases, five out of six of their 
 judgments rendered against the defendants are erro- 
 neous, it is obvious that there are serious defects in 
 their organization, or in their modes of procedure, 
 which ought to be remedied. On the other hand, the 
 supreme court was created for the correction of sub- 
 stantial errors, tending to defeat the right, committed 
 by inferior courts, and not for the reversal of just and 
 proper judgments; and if, in any class of cases, judg- 
 ments are reversed which ought to be affirmed, and 
 this is a matter of frequent occurrence, it is equally 
 obvious that there are defects in the organization or 
 modes of procedure of the court of last resort, which 
 should be promptly removed by appropriate action on 
 the part of the legislature or of the people. 
 
 To review all the cases above cited would involve 
 great labor and serve no useful purpose, and for that 
 reason only a sufficient number of those in which the 
 railroad companies were appellants will be commented 
 on to show the practical workings of our system of 
 trial by jury and the general character of the decisions 
 of the supreme court in this class of cases. The cases 
 in which the judgments were affirmed will first be 
 briefly described. 
 
 The Taylor Case, 69 111. 463, was an action brought 
 to recover damages for negligence resulting in the 
 
RAILROAD CASES REVIEWED. 11 
 
 death of the plaintiff's intestate. There was a verdict 
 and judgment for $5,000 in the court below in favor of 
 the plaintiff. The deceased was employed by the rail- 
 road company as station agent and switchman, and 
 was run over and killed while in the discharge of his 
 duty as switchman. The court found that the evidence 
 fully established negligence on the part of the com- 
 pany and the exercise of proper caution on the part 
 of the deceased, and that the instructions were substan- 
 tially correct, and placed the law of the case fairly be- 
 fore the jury, and for these reasons affirmed the judg- 
 ment. 
 
 The Ryan Case, 70 111. 212, was an action brought 
 by the plaintiff to recover for personal injuries occa- 
 sioned February 22, 1868, by his being run over by 
 a switch engine. Upon the first trial the jury found 
 a verdict for the defendant, and the judgment entered 
 thereon was reversed by the supreme court because 
 the circuit court had instructed the jury that, if the 
 plaintiff was in the employment of the defendant, he 
 could not recover, no matter whether there was negli- 
 gence on the part of defendant or not. (Ryan v. 
 C. & N. W. Railway Co., 60 111. 171.) Upon the 
 second trial there was a verdict and judgment in the 
 court below for $3,500 in favor of the plaintiff. The 
 supreme court, Mr. Justice Craig delivering the opin- 
 ion, in disposing of the case at the September term, 
 1873, say: 
 
 " On the evening the accident happened, appellee, on the 
 blowing of the six o'clock whistle, which gave notice to the em- 
 ployes to quit work, started from the shops to go to his resi- 
 dence. The track was only a few steps from the shop door. He 
 testifies, and upon this he is uncontradicted, that he looked up 
 and down the track, and saw that it was clear, no train or 
 engine in sight; he then turned north, and had only proceeded a 
 few steps when the engine came around the curve, behind him, 
 
12 EAILROAD CASES REVIEWED. 
 
 from the direction of the round-house, and he was struck. When 
 Ryan looked up and down the track and saw that no train or 
 engine was in sight, he might reasonably conclude that it was 
 safe to proceed, and if an engine was upon the track, and not in 
 sight, he would he warned of its approach by the^ sound of the 
 bell or whistle, and having used this precaution, it cannot with 
 propriety be said he was guilty of negligence. 
 
 "In regard to the conduct of the servants of appellant in 
 charge of the engine, the evidence, on some points, is conflicting. 
 Appellee testifies that the bell was not rung or the whistle 
 sounded, that the engine was running at a high rate of speed. 
 
 "The switchman, who saw the accident, says the engine was 
 running at the speed of about six miles per hour; he could not 
 tell whether the bell was rung or whistle sounded. He says 
 the six o'clock whistle was blowing at the time, and he could 
 not hear the bell or whistle on the engine. The fireman and 
 engineer and one other witness testify the bell was rung. 
 
 " The jury, under the instructions on behalf of appellant, 
 found, by a special verdict, that the bell was rung carelessly, 
 before and after the accident, but was not ringing at the time 
 it occurred. There are, however, some undisputed facts in this 
 case which would warrant the jury in arriving at the conclusion 
 those in charge of the engine were guilty of gross carelessness 
 and negligence. 
 
 " It is shown that appellee was not seen at all by the engineer 
 or fireman on the engine, and they did not know that he had 
 been struck until they were stopped by a signal from the switch- 
 man. It further appears that a boy was on the engine, occupy- 
 ing the seat of the fireman, who was not in the employ of the 
 company, and that he had charge of the bell-rope, and if the 
 bell was rung at all, the ringing was done by the boy by way of 
 amusement. 
 
 " Appellee testifies that at the time the engine passed over 
 him he saw the engineer and fireman, and they were laughing. 
 This is not contradicted by any one, and, when considered in 
 connection with the fact that Ryan was not seen by either of 
 them when the accident occurred, and the additional fact that 
 the boy was in the seat of the fireman in charge of the bell, 
 shows, or at least tends very strongly to show, that the engine 
 
BAILR0AD CASES KEVIEWED 13 
 
 was not properly managed, and those whose duty it was to be on 
 the watch, to guard against the destruction of limb and life, were 
 amusing themselves, while a boy on the engine, for mere sport, 
 was the only person giving any attention to it or the destruction 
 it might cause to those who might be passing from the shops to 
 their homes at that particular hour. 
 
 " These facts were all before the jury, and it was for them, 
 from the facts proven, to determine whether the injury received 
 by appellee was caused by his negligence or that of the servants 
 of appellant in charge of the engine, and, as has been repeatedly 
 held, we will not disturb the verdict,unless it is manifestly against 
 the weight of evidence. As was said in Chicago & Alton 
 Railroad Co. v. Shannon, 43 111. 338, the law intrusts the trial of 
 issues of fact to a jury, and there the court must leave it, except 
 so far as it may be necessary to interfere to prevent a plain 
 perversion of justice. 
 
 " In' this case, the issue formed was fairly presented to the 
 jury, and we cannot say, from a careful inspection of the whole 
 record, that the verdict is clearly against the weight of evidence. 
 
 " It is claimed by appellant that the court erred in giving 
 appellee's first, sixth, fourth and seventh instructions. The first, 
 although inartificially drawn, is, in substance, correct. It con- 
 forms to the law, as declared in this case when it was before this 
 court at the September term, 1871. (Ryan v. C. & K W. Rail- 
 way Co., 60 111. 172). The only objection made to the sixth instruc- 
 tion is, that it is not properly guarded. Upon an examination of 
 it, we think the word " solely," contained in the instruction, prop- 
 erly qualifies it, and that it is correct as given by the court. The 
 only point raised as to the fourth and seventh instructions is, 
 the word "fault" is used where the words "ordinary care" 
 ■ should have been used. This is very technical. "We do not see 
 how the use of the words insisted upon could change the 
 meaning or sense of the instructions." 
 
 The Ebert Case, 74 111. 399, was an action brought 
 by the plaintiff to recover damages for personal inju- 
 ries. The jury rendered a verdict in his favor for $10- 
 000, of which $6,000 was remitted and judgment ren- 
 
14 RAILROAD OASES REVIEWED. 
 
 dered for the balance. The supreme court, Mr. Justice 
 Breese delivering the opinion, after stating that the 
 evidence justified a verdict in favor of the plaintiff, 
 make the following comments upon the amount of 
 damages awarded by the jury: 
 
 "Were the damages properly assessed in the case? Do the 
 facts justify a finding so heavy? $10,000 is a very large sum of 
 money, in the possession of which very few can boast. It is a 
 small fortune, which few acquire in a life of incessant labor. 
 This the jury awarded to one whose prospects in life did not 
 extend beyond his wages as a day laborer, and who has not been, 
 by the negligence of the defendants, wholly disabled. It is true 
 the company were at fault, but not so greatly as to aggravate it 
 to willfulness. Compensatory damages were all the jury were 
 justified in awarding, under the evidence. A verdict for $10, 
 000 is so enormous as to justify the inference the jury were 
 actuated by prejudice and passion, not listening to the dictates 
 of cool judgment. The enormity of the finding so shocked the 
 sense of justice of the plaintiff's counsel that they at once remit- 
 ted more than one half of the amount. We cannot but think 
 the verdict was the result of passion and prejudice, and it is none 
 the less so after the remittitur, for the incentives to the finding 
 abide as Well in what remains as in the original amount found. 
 The verdict was for $10,000. That verdict was the result of passion 
 and prejudice. If those incentives prompted the verdict they 
 vitiate the verdict and it should have been set aside. But a prac- 
 tice has found place in our jurisprudence which sanctifies an out- 
 rageous verdict by entering a remittitur, and it has so often 
 received the sanction of this court that it may be too late now 
 to displace, it." 
 
 The McLallen Case, 84 111. 109, and the Parks Case, 
 88 111. 374, were actions brought to recover damages 
 for injuries resulting, in the former case, in death, 
 and, in the latter, in permanent physical and mental 
 disability of the plaintiff. In each the injuries were 
 caused by a collision of trains, and the liability of 
 
RAILROAD CASES REVIEWED. 15 
 
 the defendant was established beyond all reasonable 
 doubt. The only real question presented in the latter 
 was whether the damages were excessive, the plaintiff, 
 a lady of education, and by profession a teacher, hav- 
 ing been awarded $8,958 for a permanent injury to 
 the spine that rendered her incapable of effective 
 labor, either physical or mental. Her injury occurred 
 in September, 1873; the trial, in the circuit court 
 in March, 1875, and the affirmance of the judgment at 
 the January term, 1878, of the supreme court. 
 
 The Lee Case, 87 111. 454, was an action brought to 
 recover damages for negligence resulting in the death 
 of plaintiff's intestate, in November, 1869. The first 
 trial of the case resulted in a judgment in favor of the 
 plaintiff, which was reversed by the supreme court, 
 (60 111. 502,) for errors of the court below in the ad- 
 mission of evidence and in instructing the jury as to 
 the doctrine of comparative negligence. The instruc- 
 tion held erroneous declared in substance that if the 
 defendant neglected to ring the bell or sound the 
 whistle, plaintiff could recover, "unless the jury shall 
 believe from the evidence that Lee was guilty of a 
 greater degree of negligence which contributed to his 
 death." In reference to the clause of the instruction 
 quoted, Mr. Justice Sheldon, in delivering the opinion 
 of the court, said: 
 
 " The instruction was not properly qualified in regard to the 
 ■ degree of negligence on the part of the deceased which would 
 allow a recovery. The effect of the instruction in this respect 
 was, that if the defendant was guilty of negligence the plaintiff 
 could recover, although the deceased was also guilty of negli- 
 gence, if his negligence was not greater than that of the defendant, 
 which would allow a recovery if the negligence of both parties 
 was equal. But a recovery could not be had in such case, under 
 the rule as laid down by this court, nor unless the contributory 
 negligence of the deceased was far less in degree than that of 
 
16 RAILROAD CASES REVIEWED. 
 
 the defendant. C. B. &• Q. R. R. Co. v. Dunn, 52 111. 452 ; Keokuk 
 Packet Co. v. Henry, 50 111. 264; C. & N. W. R. R. Co. v. Swee- 
 ney, 52 111. 325." 
 
 The second trial of the cause likewise resulted in 
 a judgment for the plaintiff, which was also reversed 
 by the supreme court because the court below again 
 incorrectly stated to the jury the doctrine of com- 
 parative negligence, and because the verdict was con- 
 trary to the evidence, (68 111. 578.) The defendant 
 offered an instruction to the effect that the plaintiff 
 could not recover if Lee failed to exercise ordinary 
 care, which the court modified by adding the words 
 " unless the negligence of the defendant was greater 
 than plaintiff's." Of this Mr. Justice Scott, in deliver- 
 ing the opinion of the court, said: 
 
 " This modification was unwarranted by the law as announced 
 in the previous opinion' in this case and in numerous decisions 
 of this court. The law in regard to the comparative negligence 
 of the parties has been so repeatedly explained, it would now be 
 a work of supererogation to restate it. It never has been held 
 to be the law that the plaintiff could recover simply because the 
 defendant was guilty of greater negligence in that which pro- 
 duced the injury. The adjudged cases all declare the reasonable 
 doctrine, if the plaintiff was alone guilty of negligence, or if the 
 negligence of the parties was equal, there could be no recovery. 
 Formerly it was the rule, if the negligence of the plaintiff con- 
 tributed to the injury, however slight, it would bar an action. 
 This rule has been modified by more recent decisions, and it is 
 now the settled law, the plaintiff may recover notwithstanding 
 he may have been guilty of contributory negligence, if bis neg- 
 ligence is slight and that of the defendant is gross. It is an 
 essential element to the right of action in all cases, the plaintiff 
 or party injured must himself exercise ordinary care, such as a 
 reasonably prudent person will always adopt for the security of 
 his person or property." 
 
RAILROAD CASES REVIEWED. 17 
 
 The third trial of the cause resulted in another 
 judgment for the plaintiff, which was affirmed. Mr. 
 Justice Walker, in delivering the opinion of the court, 
 among other things, says: 
 
 " When the first and second trials were had, the only negli- 
 gence averred in the declaration was, the failure to sound a 
 whistle or ring a hell at the crossing where Lee was killed. In 
 the counts since filed the additional negligence averred is, that 
 the company permitted a huilding to stand upon its grounds near 
 the track, and suffered weeds and hrush to grow and stand upon 
 its grounds, so as to obstruct the view of deceased as he ap- 
 proached the road, and that the train was run at an unusually 
 high rate of speed, and no bell was rung or whistle sounded, and 
 that deceased was killed by reason of such negligence. 
 
 " On the last trial there were three additional witnesses, who 
 testified they were in a position to hear, and had an opportunity 
 to hear, a whistle sound or a bell ring, but did not, and they 
 believe no such signal was given. 
 
 "From the entire evidence, we are clearly of opinion the 
 train was behind time, and was running at a very high rate of 
 speed when the accident occurred ; and there seems to be no 
 doubt the view of the approaching train was obstructed by the 
 house, brush and weeds, until a person was almost on the track; 
 and the evidence was conflicting as to whether the bell was rung 
 or the whistle sounded until the instant the collision occurred. 
 The jury found the signal was not given. 
 
 "The speed of the train, the fact that it was behind its 
 regular time, and the obstruction to the view by the house, brush 
 and weeds, if not conceded, are established, we think, beyond 
 doubt ; and the principal disputed fact is, whether the signal 
 was given. We are satisfied' the evidence, as it stands in this 
 record, warranted the jury in reaching the conclusion that it 
 was not given. 
 
 "The policy of our system of jurisprudence is, that, as the 
 jury system was established and is maintained for the finding of 
 disputed facts at common law, it is the province of the jury to 
 do so, uncontrolled by the court, if the evidence tends to support 
 their finding. It is only by force of our statute that we have 
 
18 RAILROAD CASES REVIEWED. 
 
 power to review their finding, and, under long established 
 practice, we will not, unless compelled from the want of 
 evidence, or its too manifest weakness and insufficiency to sus- 
 tain the finding, reverse, because the finding is against the 
 evidence. Here are three juries who have concurred in finding 
 negligence on the part of appellant. If there was any inherent 
 weakness in the evidence, we could hardly presume that such a 
 number of ordinarily intelligent men would all have failed to 
 detect it. Even if it appeared to us to be slight, still that does 
 not require a reversal. We will not lightly disturb the finding 
 of a jury, whose province it is to find facts, and the circuit judge 
 who heard the evidence and approved the finding by refusing to 
 set aside the verdict. Hence we must refuse to set aside the 
 verdict because it is not sustained by the evidence. 
 
 " There is no error in the instructions. They announce the 
 law correctly, and this leaves it purely a question of fact for the 
 determination of the jury, and we must decline to interfere." 
 
 From this opinion Mr. Justice Scott dissented and 
 said: 
 
 " The facts in the present record are substantially as they 
 were when the case was before us on a former appeal, and, 
 according to authorities in this and other courts, that decision is 
 conclusive of the rights of the parties. For a fuller expression 
 of my views as to the merits of the case, reference is made to 
 our former opinion, — Chicago, Burlington & Quincy Railroad 
 Co. v. Lee, 68 111. 576." 
 
 The Dickson Case, 88 111. 431, was an action brought 
 to recover damages for a personal injury. The cause 
 of action accrued in 1870 and the suit was commenced 
 in 1874. The defendant pleaded two special pleas, 
 which, on demurrer, were held good and judgment 
 was entered against the plaintiff, which upon appeal 
 to the supreme court was reversed (Dickson v. C. B. & 
 Q. R R. Co., 77 III 331). Upon being remanded, the 
 cause was tried upon its merits and judgment rendered 
 
RAILROAD OASES REVIEWED. 19 
 
 for the plaintiff for $6,500. The supreme court found 
 that the evidence sustained the verdict, and, as a 
 remittitur of $2,500 was entered, the judgment as to 
 the remaining $4,000 was affirmed. 
 
 The Lewis Case, 109 111. 121, the Avery Case, 109 
 111. 314, and the Frelka Case, 110 111. 498, were appeals 
 from the appellate courts, which had affirmed the 
 judgments of the courts below, two previous judgments 
 in the Avery Case, and one in the Frelka Case, having 
 been reversed by the appellate courts. The first judg- 
 ment in the Avery Case was reversed by the appellate 
 court because the doctrine of comparative negligence 
 had been incorrectly stated in the plaintiff's instruc- 
 tions (8 Brad. 134), and the second because the dam- 
 ages awarded by the jury were excessive (10 Brad. 210). 
 The first judgment in the Frelka Case was reversed by 
 the appellate court for errors in the instructions (9 
 Brad. 611). 
 
 From this brief description of these cases it appears 
 that, out of a total of fifty-one actions thus passed 
 upon by the supreme court, there were but five in 
 which the judgments rendered upon the first trials in 
 the circuit courts were sustained. Of the remaining 
 five in which the judgments were finally affirmed, 
 two underwent two investigations by the circuit court 
 and two by the supreme court, another two in the 
 circuit court, two in the appellate court and one in the 
 supreme court, another three in the circuit court and 
 three in the supreme court, while, in the other, three 
 trials in the circuit court, three in the appellate court 
 and one in the supreme court were made necessary to 
 enable the respective parties to obtain right and 
 justice freely and without being obliged to purchase 
 it, completely and without denial, promptly and with- 
 out delay. 
 
 Of the cases in which the judgments were reversed 
 
20 RAILROAD CASES REVIEWED. 
 
 it will be sufficient, for the present, to examine the 
 Sykes Case, 96 111. 162, the Johnson Case, 103 111. 512, 
 the Clark Case, 108 111. 114, the Warner Case, 108 111. 
 540, the Moranda Case, 108 111. 576, and the Dougherty 
 Case, 110 111. 521, all of which were appeals from the 
 appellate courts, for we may reasonably expect that 
 the opinions in these cases are at least equal in merit 
 to those delivered by the supreme court in reviewing 
 the judgments of the circuit courts prior to the or- 
 ganization of the appellate courts. Some of the cases 
 of the latter class will, however, be discussed in sub- 
 sequent chapters of this work. 
 
 THE SYKES CASE. 
 
 This was an appeal from the Appellate Court of 
 the Second District. The action was brought to recover 
 damages from the railroad company for causing the 
 death of plaintiff's intestate, F. M. Sykes, who was 
 killed on the 26th day of May, 1876. Upon the first 
 trial of the case plaintiff recovered a judgment of 
 $4,250. Upon appeal to the appellate court this judg- 
 ment was reversed and the cause remanded (1 Brad. 
 525). The opinion of that court disposed of all the 
 questions then presented by the record and carefully 
 laid down the principles of law to be observed by the 
 circuit court upon the next trial, and upon retrying 
 the cause the latter court complied in all respects 
 with the rules so laid down. The result of the second 
 trial was a verdict for the plaintiff and a judgment 
 thereon for $5,000, which was subsequently affirmed 
 by the appellate court. This judgment was reversed 
 by the supreme court (96 111. 162), on the ground that 
 the circuit court erred in giving the following instruc- 
 tion: 
 
THE SYKES CASE. 21 
 
 " The jury are instructed that if they believe, from the evi- 
 dence, that on May 26, 1876, a freight train of the defendant 
 was permitted to stand, by one Anderson, the conductor thereof, 
 he being then and there an employe of the defendant, in charge 
 and control of said train, on and over a public highway and 
 sidewalk thereon, being a public street in the city of Knoxville, 
 Illinois; that said train stood on and over said street, between 
 said city of Knoxville and the passenger depot there situate, and 
 the main track of the defendant's road, on which passenger 
 trains passed and repassed; that Francis M. Sykes, deceased, was 
 then and there passing from said city of Knoxville to embark on 
 a passenger train then at said depot; that said freight train was 
 then and there coupled together, entirely blocking up said street 
 and sidewalk, and for so great a distance on each side thereof 
 that it was apparently impossible for said Sykes to go round the 
 same in time to reach and embark on said passenger train; 
 that, before attempting to pass under said freight train, said 
 Anderson, so being conductor and in charge of said train, without 
 separating the same, said to the deceased, ' Come on under, Mr. 
 Sykes, you will have plenty of time,' and that deceased did, in 
 accordance with and in consequence of said direction of said 
 conductor, and relying upon the same, without negligence on 
 his part, and under such circumstances (under all the evidence 
 in the case) as would induce an ordinarily prudent and careful 
 man to believe that he could pass such train in safety — attempt to 
 go through under said freight train, using such care and diligence 
 as an ordinarily careful and prudent man would use, under all 
 the circumstances, in accepting and acting upon such direction, 
 and that while deceased was then and there so passing under 
 said freight train, using all possible care, caution and diligence 
 to pass the same, said train suddenly started without the ringing 
 of bell or sounding of whistle to give notice thereof, and ran 
 over the foot of the deceased, inflicting an injury which was the 
 direct cause of the death of the deceased, then the jury may, if 
 such facts are proven, find the defendant guilty, and assess 
 plaintiffs damages at some amount not exceeding the sum of 
 $5,000 claimed in the plaintiff's declaration." 
 
22 RAILROAD OASES REVIEWED. 
 
 Of this instruction, Mr. Justice Walker, in deliver- 
 ing the opinion of this court, says: 
 
 " This instruction is not clear in its statement of the facts 
 upon which the jury were required to act. It is involved, and 
 its meaning is not readily perceived by persons not in the habit 
 of carefully examining written language. It, to present the 
 question whether the deceased had the right to act upon what 
 the conductor said, refers to many other circumstances, but not 
 to all. It is argumentative, and is hot explicit in announcing 
 the rule of law it sought to present to the jury. But, treating 
 it as though it had been explicit, does it announce a correct 
 legal proposition? It will not, we presume, be contended that 
 a conductor may willfully or recklessly invite or direct passengers 
 or other persons to assume dangerous risks, or to go into danger 
 without any care by such personSj so as to bind the company. 
 Whilst passengers may, to some extent, rely on the superior 
 experience and knowledge of conductors, they, at the same time, 
 are not thereby entirely absolved from the exercise of care and 
 prudence on their part. 
 
 11 In this case there clearly was negligence by both parties. 
 It was negligent on the part of appellant to leave the freight train 
 across the sidewalk without opening it so as to permit persons to 
 pass without obstruction. Again* it was negligent for deceased 
 to pass under the end of the freight car. And although he may 
 have been invited or directed by the conductor of that train to 
 pass under, if the act was dangerous and would be considered so 
 by prudent persons generally, it was for the jury to say whether 
 his negligence was slight, and that of the agents of the company 
 gross. Now this instruction ignores this element entirely. 
 That it was important to be considered must be apparent. We 
 have seen that deceased was under no obligation to act on the 
 suggestion of the conductor, nor was he justified in doing so if it 
 was clear that he thereby incurred great hazard. And it was for 
 the jury to determine whether, under the invitation of the con- 
 ductor, if it was given, and the fact that he had charge of and 
 command over his train, the negligence of deceased was slight; 
 and whether leaving the train across the public sidewalk and 
 
THE SYKES CASE. 28 
 
 thus obstructing the free passage of the street, and in the 
 conductor saying to deceased to come through, if they found he 
 did, was gross negligence. The questions are prominently and 
 undeniably presented by the evidence, and they should have been 
 presented to the jury by this. instruction, and failing to do so, 
 it was erroneous and should have been refused or modified. 
 
 "The instruction is inaccurate in telling the jury that, if 
 they found defendant guilty, they might assess plaintiffs dam- 
 ages at some amount not exceeding $5,000, the amount claimed 
 in the declaration. This part of the instruction leaves the jury 
 at liberty to find any amount not exceeding the amount claimed, 
 without the slightest reference to any proof of the amount of 
 damages sustained. It amounted to an uncontrolled license to 
 find any sum under the limit that they might choose, and, as 
 they have found, to the full limit, it may be, and probably they 
 did, exercise the liberty the instruction gave them, without 
 reference to the evidence on that question. In this class of 
 cases, instructions should be accurate and precise in reference 
 to the finding of damages. This may have misled, and proba- 
 bly did mislead, the jury in assessing damages." 
 
 In a subsequent portion of the opinion the learned 
 judge says: 
 
 "Did the court err in refusing instructions asked by appel- 
 lant ? The third of appellant's instructions, as asked, informed 
 the jury that it is gross negligence for any intelligent person 
 familiar with railroad travel to pass under a train with an engine 
 attached, with steam up and liable to start at any moment; and 
 if deceased was such a person, and he did go under this train, 
 and it was so situated, that he was then guilty of gross negli- 
 gence, and plaintiff could not recover. Before it was given, 
 the court modified it so as to read, if he did go under such car 
 ' uninvited/ that then he was guilty of gross negligence. This 
 presents the question whether the conductor had power to 
 authorize him to pass under the car. It may be doubted 
 whether any employe of the company, with the engineer or 
 conductor having charge of the train, could bind the company 
 
24 RAILROAD OASES REVIEWED. 
 
 by such permission. But, as we understand the operation of 
 these roads, the conductor of each train has control over it. 
 He can require the engineer to start and stop at pleasure, unless 
 it be in direct violation of regulations governing the engineer. 
 In this case, if the conductor had such power, as we suppose he 
 had, then deceased undeniably had the right to rely and act 
 on the invitation, unless he had reason to suppose it was 
 hazardous. Deceased could not suppose, after saying, 'Come 
 on, you will have plenty of time,' he would require his train 
 to start until he had got from under the train. He, therefore, 
 had the clear right to suppose, from what the conductor said, if 
 it is proved he made the statement, as he had ample power to 
 control the train, and was present and could, and did, know he 
 was in a dangerous position, the train would not be started. 
 
 " It may, however, be said that this was outside of and 
 beyond the duty of the couductor. This is, perhaps, true. 
 But he had wrongfully obstructed the passway to the depot. 
 He should have opened it to permit persons to pass through, 
 but this he neglected. And being in the wrong in that regard, 
 what more natural than to suppose he would hold his train 
 until deceased had passed ? Any person would have so sup- 
 posed, especially after being invited to pass. He was then in 
 the employment of the company, and in the transaction of its 
 business. And this order or invitation, if it was given, was not 
 wholly outside of its performance. It was his duty to have 
 opened his train, and, failing to do so, he undertook to perform 
 that duty in another mode, by directing deceased to pass under 
 the end of the car. But even if not so endeavoring, he was 
 engaged in the performance of his duty to the company, and 
 was, in this matter, not so acting as though engaged in his own 
 private affairs. Although injury resulted from an act he was 
 not required by the company to perform, it was connected with 
 the business of the company, and in the performance of which 
 he was engaged. 
 
 " The act was no more disconnected from the business of 
 the company than the wanton discharge of steam by an 
 engine driver to frighten a team that ran away and injured the 
 owner. In such a case the company was held liable for his acts, 
 
THE SYKES CASE. 25 
 
 as in sounding a whistle for a like purpose, whereby both per- 
 sons and property were injured. Toledo, Wabash & Western 
 Railway Co. v. Harmon, 47 111. 298; Chicago, Burlington & 
 Quincy Railroad Co. v. Dickson, 63 id. 151. These cases govern 
 this question. 
 
 " It is insisted that the court erred in refusing to give appel- 
 lant's thirteenth instruction. It announces that deceased was 
 not warranted in passing under the car, although he might 
 have been unable to take the east-bound passenger train, and 
 although the conductor might have told him to ' Come on, you 
 have plenty of time.' This entirely ignores the fact that 
 the conductor had control of the train, and that deceased, for 
 that reason, had a right to suppose he would hold it until he 
 had passed through. For this reason the instruction was pro- 
 perly rejected." 
 
 The objections taken by the court to the instruction 
 are apparently three in number, one being to its form 
 and the other two to its substance. They will each be 
 considered in the order in which they are made in the 
 opinion. 
 
 To the objection that the instruction is not clear in 
 its statement of the facts, that it is involved and its 
 meaning not readily perceived by persons not in the 
 habit of carefully examining written language, that 
 it refers to many circumstances, but not to all, and 
 that it is argumentative, there are two answers. The 
 first is, that such an objection is merely grammatical 
 criticism and should not be indulged in when the 
 judgment of an appellate court is under review. If 
 questions of rhetoric are proper matters for considera- 
 tion at all, it ought to be sufficient for the circuit 
 judge to satisfy the appellate court, which it is often 
 t extremely difficult to do. The supreme court is autho- 
 rized to re-examine cases brought before it from the 
 appellate courts as to questions of law only, and, if an 
 instruction states a correct proposition of law applica- 
 
26 RAILROAD CASES REVIEWED. 
 
 ble to the facts of the case, it ought to be approved by 
 that tribunal, although the court might deem its 
 language such as not to be readily understood by 
 jurors. The question of style in judicial compositions 
 is one of taste merely, and, as different judges have 
 different tastes, it would greatly embarrass a circuit 
 judge if he were compelled to so frame his instructions 
 as to suit the tastes of the judges of two reviewing 
 courts. 
 
 The second answer is, that the instruction, though 
 somewhat lengthy, can be readily understood by intel- 
 ligent readers, "of sound judgment, well informed, 
 and who understand the English language," and 
 therefore competent jurymen, as stating the proposi- 
 tion that if an individual, seeing a freight train 
 entirely blocking up a street so that it is apparently 
 impossible for him to go around it in time to reach 
 and embark upon a passenger train, and being invited 
 by the conductor having full charge and control of the 
 freight train, to pass under it, and being told he could 
 do so without danger, accepts such invitation, and in 
 so accepting and acting upon it, is not guilty of any 
 negligence, and while he is attempting to pass through 
 and is exercising proper care, the train without warning 
 starts up, runs over and kills him, the railroad com- 
 pany is liable for damages. And not only would they 
 so understand it, but they would consider that, if it 
 were not a sound proposition of law, it would at least 
 be a sound proposition of common sense and in accord- 
 ance with the principles of natural justice. 
 
 To the objection that the instruction, though 
 treated as explicit, does not announce a correct propo- 
 sition of law, there are likewise two answers. One is, 
 that the question whether it was negligent in Sykes 
 to pass under the car upon the invitation of the con- 
 ductor was one of fact for the jury to determine and 
 
THE SYKES CASE. 27 
 
 not one of law for the court. The second answer, and 
 the most conclusive one, is given by the learned judge 
 himself, who delivers the opinion; for although in one 
 part of the opinion it is declared that there was clearly 
 negligence by both parties, and that it was negligent 
 for the deceased to pass under the end of the car, yet 
 in another part of the opinion we find a most convinc- 
 ing argument to show that any man, after being invited 
 by the conductor in charge and control of the train 
 to pass under it, would have done so. There was, 
 therefore, no negligence on the part of the deceased 
 with which to compare that of the defendant. The 
 propriety of the ruling that it is error in the trial 
 court not to submit to the jury the question of com- 
 parative negligence, when the evidence tends to show 
 negligence on the part of the plaintiff, or person injured, 
 will be further considered hereafter in connection with 
 the Johnson Case. 
 
 The objection to that portion of the instruction 
 relating to the question of damages might have some 
 force, were it not for the fact that the judgment was 
 entered more than three years after the injury occurred, 
 and after a former jury, two years before, under 
 instructions not objected to as tending to mislead in 
 that respect, had rendered a Verdict for $4,250. Under 
 such circumstances* and especially when the appellate 
 court, with power to review the finding of the jury as 
 to the facts, had, by the affirmance of the judgment, 
 determined that the error, which was as apparent to 
 them as to the supreme court, did no harm, it seems a 
 harsh rule that requires a widow to submit to a third 
 trial by jury and another appeal to the appellate and 
 supreme courts and to the payment of several hundred 
 dollars in costs and expenses, for an error so trivial, 
 when, no matter what her pecuniary loss may be, she 
 cannot recover but $5,000, and this only after five 
 years' litigation. 
 
28 KAILROAD CASES REVIEWED. 
 
 This reversal of the judgment leaves the case with 
 its merits wholly undetermined. The only thing, aside 
 from the grammatical criticism of the instruction, 
 accomplished by two trials by jury, two in the appel- 
 late court and one in the supreme court, is to inform 
 the trial court that, if a man attempts to pass under a 
 freight car on the invitation of the conductor having 
 full charge and control of it, and, while he is so doing 
 and exercising due care, and doing what any reason- 
 able man would do, the train suddenly and without 
 warning starts up, runs over and kills him, a judgment 
 in favor of his widow and children and against the rail- 
 road company is vitiated and must be annulled if the 
 jury are not told that the negligence of the deceased 
 must be found to have been slight and that of the 
 defendant gross before a verdict against the defendant 
 can properly be rendered. Thus, and thus only, can the 
 respective parties obtain right and justice freely and 
 without being obliged to purchase it, completely and 
 without denial, promptly and without delay. 
 
 THE JOHNSON CASE. 
 
 This case, also an appeal from the Appellate Court 
 of the Second District, will be more fully discussed 
 hereafter in the chapter entitled " Comparative Neg- 
 ligence." For present purposes it is sufficient to con- 
 sider the first portion of the separate opinion of Mr. 
 Justice Dickey (103 111. 512), in which he says : 
 
 " I concur in the judgment rendered in this case. While 
 the evidence tends to charge the defendant with palpable negli- 
 gence, still, in my judgment, there is no evidence tending to 
 show gross negligence on the part of defendant, and the 
 turning question in the case in fact seems to be whether the 
 plaintiffs intestate used ordinary care. In such a case, I think 
 
THE JOHNSON CASE. 29 
 
 it error to submit to the jury the rule of law as to comparative 
 negligence. On this ground the judgment ought to be re- 
 versed." 
 
 At first reading, this opinion seems quite harmless, 
 but when carefully considered and digested, it occa- 
 sions a feeling of surprise that so much mischief could 
 be expressed in so few words. It will be briefly 
 discussed, first, as to its effect when considered by 
 itself, and second, when considered in connection with 
 other decisions of the supreme court. 
 
 As is well known, great doubt has been expressed 
 by eminent law writers and judges whether the 
 distinctions in different degrees of negligence are 
 useful or praticable. Thus in note 1 to section 17 of 
 Story on Bailments we find it said: 
 
 " In some modern cases adoubt has been intimated whether 
 these nice distinctions in the different degrees of negligence are 
 useful or practicable. Thus in Wilson v. Brett, 11 Meeson & 
 Welsby, 113, Baron Rolfe declared he could see no difference 
 between negligence and gross negligence; that it was the same 
 thing, with the addition of a vituperative epithet. And in 
 another case (Hinton v. Dibbin, 2 Queen's Bench, 650) Lord 
 Denman said: ' It may well be doubted whether between gross 
 negligence and negligence merely, any intelligible distinction 
 exists.' And this remark was cited with approbation by Cress- 
 well, J., in the late case of Austin v. The Manchester Railway 
 Co., 11 Eng. L. & Eq. 513 * * * In Lord v. Midland Rail- 
 way Co., Law Rep., 2 C. P. 344, Willes, J., said : 'Any 
 negligence is gross in one who undertakes a duty and fails to 
 perform it.' " 
 
 In Steamboat New World v. King, 16 Howard, 474, 
 also cited in note 1 to section 17 of Story on Bail- 
 ments, Mr. Justice Curtis says : 
 
 " The theory that there are three degrees of negligence, 
 described by the terms slight, ordinary and gross, has been 
 
30 RAILROAD OASES REVIEWED. 
 
 introduced into the common law from some of the commenta- 
 tors on the Roman law, It may be doubted if these terms can 
 be usefully applied in practice. Their meaning is not fixed, or 
 capable of being so. One degree thus described, not only may 
 be confounded with another, but it is quite impracticable 
 exactly to distinguish them. Their signification necessarily 
 varies according to circumstances, to whose influence the courts 
 have been forced to yield, until there are so many real excep- 
 tions that the rules themselves can scarcely be said to have a 
 general operation. In Storer v. Gowen, 18 Maine, 177, the 
 supreme court of Maine say: ' How much care will, in a given 
 case, relieve a party from the imputation of gross negligence, 
 or what omission will amount to the charge, is necessarily a 
 question of fact depending on a great variety of circumstances 
 which the law cannot exactly define.' Mr. Justice Story 
 (Bailments, section 11) says: 'Indeed, what is common or 
 ordinary diligence,, is more a matter of fact than of law. 1 If 
 the law furnishes no definition of the terms gross negligence 
 or ordinary negligence which can be applied in practice, but 
 leaves it to the jury to determine, in each case, what the duty 
 was, and what omissions amount to a breach of it, it would 
 seem that imperfect and confessedly unsuccessful attempts to 
 define that duty had better be abandoned. Recently the judges 
 of several courts have expressed their disapprobation of these 
 attempts to fix the degrees of diligence by legal definitions, and 
 have complained of the impracticability of applying them. 
 * * * It may be added that some of the ablest commentators 
 on the Roman law, and on the civil code of France, have 
 wholly repudiated this theory of three degrees of diligence, 
 as unfounded in principles of natural justice, useless in practice, 
 and presenting inextricable embarrassments and difficulties." 
 
 Yet we are told by the Supreme Court of Illinois 
 that before a circuit judge instructs the jury he must 
 decide for himself whether the negligence of the 
 defendant, shown or attempted to be shown by the 
 evidence, is of the kind that is legally to be denomi- 
 nated "gross" or is only "palpable," whatever that 
 
THE JOHNSON CASE. 31 
 
 may be. This, manifestly, he could not hope to do 
 successfully unless he were very much wiser than the 
 eminent judges above named, nor even then unless 
 the judges of the reviewing courts were as wise as 
 himself, for if they happened to be a little more or a 
 little less wise than himself, most of his judgments 
 would be reversed. The doctrine of the court, there- 
 fore, when considered by itself, is one which, if adhered 
 to, must render, as it has rendered, the proper trial of 
 actions for negligence impracticable. 
 
 But the doctrine thus laid down by Mr. Justice 
 Dickey, approved as it is by the whole court in the 
 Clark Case, 108 111. 114, when considered in connection 
 with the ruling in the Sykes Case, supra, that, when the 
 evidence tends to show negligence on the part of the 
 plaintiff, or person injured, it is error in the trial court 
 not to submit to the jury the question of comparative 
 negligence, places the circuit judge in a position some- 
 what similar to that of the ancient navigator sailing 
 between Scylla and Charybdis. If the evidence tends to 
 show negligence on the part of the person injured, the 
 judge must submit to the jury the question of compara- 
 tive negligence, but if it does not tend to show gross 
 negligence on the part of the defendant, he must not 
 submit it. Imagine, then, his embarrassment if the 
 evidence^tendedto show negligence in both parties, but 
 not gross negligence on the part of the defendant. 
 The combined wisdom of a Marshall, a Story and a 
 Curtis would be unequal to the exigencies of such a 
 situation. 
 
 Cases rarely occur in which there is not some evi- 
 dence tending to show negligence, slight though it 
 may be, on the part of the plaintiff, or person injured, 
 and those in which the evidence tends to show negli- 
 gence, that may clearly be held to be gross, on the part 
 of the defendant are alsaest equally rare. Hence it 
 
32 RAILROAD CASES REVIEWED. 
 
 follows that the rigid application of these two rules 
 would necessarily result in the reversal of nearly all the 
 judgments rendered in this class of cases, notwith- 
 standing they might otherwise be free from error. 
 Indeed, in the Johnson Case, it is apparent the only 
 debatable question was whether the deceased exer- 
 cised ordinary care ; and had the question of comparative 
 negligence not been submitted to the jury, the judg- 
 ment would have been reversed under the ruling in 
 the Sykes Case. The same may be said of the Clark 
 Case. 
 
 In view of the fact that it is so difficult, and often 
 impossible, to draw the nice distinctions between 
 " slight," " ordinary " and " gross " negligence, it is 
 easy to perceive that the position of the circuit judge 
 is a very embarrassing one. Thus it might happen 
 that, upon the trial of a cause, the judge believing the 
 evidence did not tend to show negligence on the part 
 of the plaintiff, or person injured, would omit to 
 instruct the jury as to the question of comparative 
 negligence. If the judgment that followed came for 
 review before an appellate court, it might be reversed, 
 because, in the opinion of the judges of that court, the 
 evidence did tend to show negligence on the part 
 of the plaintiff, or person injured, and therefore the 
 question of comparative negligence ought to have 
 been submitted. If, upon retrying the cause, the judge 
 should submit to the jury the question of comparative 
 negligence, and the judgment that followed should be 
 affirmed by the appellate court, the supreme court 
 might reverse it, because, in their opinion, the evi- 
 dence did not tend to show gross negligence on the 
 part of the defendant, and it was therefore error to 
 submit the question. That such differences of opinion 
 are likely to occur between the appellate and supreme 
 courts is evidenced by the Sykes and Clark Cases. 
 
THE CLARK CASE. 33 
 
 Such is one of the peculiar phases of the doctrine 
 of comparative negligence, for a more particular 
 description and history of which the reader is 
 respectfully referred to the succeeding chapter. 
 
 THE CLARK CASE. 
 
 This was also an appeal from the Appellate Court 
 of the Second District. The action was brought to 
 recover damages from the railroad company for caus- 
 ing the death of plaintiff's intestate, who was fatally 
 injured by being caught between moving cars and a 
 stone platform on July 2, 1879. Upon the first trial 
 there was a verdict and judgment for the plaintiff, 
 which judgment, upon appeal to the appellate court, 
 was reversed (11 Brad. 105). Upon the second 
 trial, judgment again went for the plaintiff, and it was 
 affirmed by the appellate court. From the judgment 
 of affirmance the railroad company appealed to the 
 supreme court. Mr. Justice Walker, in delivering the 
 opinion of the court (108 111. 114), among other things, 
 says : 
 
 " It is first insisted that the circuit court erred in admitting 
 evidence of the habits of deceased as to care, prudence and 
 sobriety. Appellee, in her declaration, averred, as she was 
 required to do, that deceased was in the exercise of due care at 
 the time he sustained the injury of which he died, and, as no 
 person was present, or knew how the accident occurred, we 
 think this evidence tended to prove that averment. If he was 
 habitually prudent, cautious and temperate, it tended to prove 
 he was so at the time of the injury, which, with the instinct of 
 self-preservation, would be evidence for the consideration of 
 the jury in determining whether he was in the exercise of care. 
 Had there been witnesses who saw the infliction of the injury, 
 the jury could then have determined, from such evidence, 
 whether he was careful or negligent, and in such case this evi- 
 dence would not be admissible." 
 
84 RAILROAD CASES REVIEWED. 
 
 Further on the learned judge says : 
 
 " The fourth of appellee's instructions is flatly contradic- 
 tory, and calculated to confuse and mislead. It asserts that if 
 the track and platform were dangerous, and the company, by 
 reasonable care, could have learned the fact, and deceased was 
 without knowledge, and could not, by reasonable care, have 
 learned it was dangerous, and deceased received his injury 
 thereby, they should find the defendant guilty. If deceased 
 could not learn that the place was dangerous by reasonable 
 care, how can appellant be held liable because it did not learn 
 the fact? Reasonable care only could, when exercised by the 
 company, reach the same results that would be attained by the 
 use of the same care used by deceased. If his care and diligence 
 could not learn that it was dangerous, it is unreasonable to 
 hold appellant liable when, by the use of the same care, it could 
 not learn there was danger. 
 
 " The seventh of appellee's instructions is loosely drawn, 
 and is not accurate in its statement of the law. It first asserts 
 that if appellant was guilty of negligence, as averred in the 
 declaration, and if deceased was guilty of negligence (if they 
 found from the evidence that appellant was guilty of gross 
 negligence), then it cannot relieve itself from liability by show- 
 ing that deceased was also guilty of negligence if his negli- 
 gence was slight as compared with that of appellant. The 
 instruction speaks of negligence, and also of gross negligence, 
 of appellant, and then refers to slight negligence of deceased as 
 compared with appellant's negligence. Which degree of neg- 
 ligence of appellant are the jury to compare with negligence of 
 deceased ? But above and beyond this, there was no evidence 
 tending to show gross negligence of appellant. There was 
 therefore no evidence upon which to base the instruction. It 
 was therefore error to give it." 
 
 The rule of evidence stated by the learned judge in 
 this opinion is not supported by any known work on 
 that branch of jurisprudence. Greenleaf, in his trea- 
 tise on Evidence, section 82, says : 
 
THE CLARK CASE. 35 
 
 " A fourth rule, which governs in the production of evi- 
 dence, is that which requires the best evidence of which the case 
 in its nature is susceptible. This rule does not demand the 
 greatest amount of evidence which can possibly be given of any 
 fact, but its design is to prevent the introduction of any 
 which, from the nature of the ease, supposes that better evi- 
 dence is in the possession of the party. It is adopted for the 
 prevention of fraud ; for when it is apparent that better evi- 
 dence is withheld, it is fair to presume that the party had some 
 sinister motive for not producing it, and that, if offered, his 
 design would be frustrated. The rule thus becomes essential 
 to the pure administration of justice. In requiring the pro- 
 duction of the best evidence applicable to each particular fact, 
 it is meant that no evidence shall be received which is merely 
 substitutionary in its nature, so long as the original evidence 
 can be had. The rule excludes only that evidence which itself 
 indicates the existence of more original sources of information. 
 But where there is no substitution of evidence, but only a 
 selection of weaker instead of stronger proofs, or an omis- 
 sion to supply all the proofs capable of being produced, the 
 rule is not infringed." 
 
 The supreme court evidently viewed the proof 
 as to the habits of the deceased as in the nature of 
 secondary evidence, and as not admissible when the 
 testimony of an eye-witness, which they seem to have 
 regarded as primary, was obtainable. If such were 
 the rule, the testimony of a lying eye-witness might 
 defeat an action, no matter how strong the circum- 
 stantial evidence showing care and prudence might 
 be. Indeed, the same principle, if applied, would 
 exclude all circumstantial evidence in any case where 
 the facts might be testified to by an eye-witness, and 
 so in a case of murder proven by an eye-witness, cir- 
 cumstantial evidence in corroboration or in contradic- 
 tion of that witness would not be admissible. Testi- 
 mony proving the habits of a deceased person as to 
 
36 RAILROAD CASES REVIEWED. 
 
 care, prudence and sobriety is always admissible in an 
 action of the character of the one under consideration, 
 and the jury are authorized to consider it as bearing 
 upon the question of the care he exercised at the time 
 of the injury, and upon the amount of damages to be 
 awarded, and it is none the less admissible because 
 other proofs are capable of being produced. 
 
 It will also be observed that the court undertake 
 to determine, as a matter of law, that the railroad 
 company was in no better position to learn that the 
 track and platform were dangerous than the deceased 
 who was a brakeman in their employ. Now, in the 
 first place, that is not a question of law for the court, 
 but a question of fact for the jury to determine from 
 all the evidence as to the means of knowledge of the 
 respective parties. In the second place, it is not true 
 as a matter of fact. The railroad company, for the 
 purpose of ascertaining the condition of its track and 
 other property, is presumed to have the benefit of the 
 knowledge of all its employes ; and to assert, there- 
 fore, that the knowledge of a single brakeman as to 
 the condition of the railroad track is necessarily equal 
 to that of the .company, is to assert that knowledge 
 possessed by a single individual is necessarily equal to 
 the combined knowledge of hundreds, and perhaps 
 thousands. Such reasoning as that adopted by the 
 court would necessarily preclude any employe from 
 recovering damages for injuries caused by defects in 
 the construction of a railroad, or in its machinery. 
 
 What is said as to the seventh instruction for 
 appellee would seem to be hypercriticism. . If the 
 instruction is correctly described by the court, it is 
 quite evident that no twelve men, "of sound judg- 
 ment, well informed, and who understand the English 
 language," could be found, who could understand the 
 instruction as conveying any other meaning than that 
 
THE WARNER CASE. 37 
 
 if the negligence of deceased was slight and that of 
 defendant gross in comparison with each other, the 
 defendant would be liable. The instruction was evi- 
 dently not remarkable for elegance of diction, but that 
 fact did not authorize its being adjudged erroneous; 
 for the supreme court, as before intimated, is a court 
 for the correction of errors of law only, and not for 
 the correction of errors of grammar. 
 
 In this case, the most important results of two 
 trials by jury, two in the appellate court and one in 
 the supreme court, must be said to be the announce- 
 ment of a rule of evidence contrary to both reason and 
 authority, and a decision that the law conclusively 
 presumes that a brakeman knows, or by exercising 
 ordinary care can know, as much about the defects in 
 a railroad and its machinery as all the officers and 
 agents of the corporation combined. 
 
 THE WARNER CASE. 
 
 This was an appeal from the Appellate Court of the 
 First District. The action was brought to recover 
 damages from the railroad company for personal inju- 
 ries received by the plaintiff while in its employment 
 on the 20th day of August, 1875. The trial in the 
 circuit court resulted in a verdict and judgment for 
 $5,000 in favor of the plaintiff, which was subse- 
 quently affirmed by the appellate court. Mr. Justice 
 Mulkey, in delivering the opinion, of the court (108 111. 
 540), among other things, says : 
 
 " The accident giving rise .to the present suit occurred about 
 two o'clock in the morning of the 20th of August, 1875, at 
 Buda, Bureau county, this state, on the main track of the com- 
 pany's road. Appellee had been in the company's service about 
 six years— the first four as brakeman and the last two as freight 
 conductor. At the time of the accident he had charge of a 
 
38 RAILROAD CASES REVIEWED. 
 
 freight train, and was proceeding to uncouple and detach a car 
 therefrom, the train at the time being in motion. For this 
 purpose, by means of steps running up the side and near the 
 end of the car, he had climbed about half way up to the top, 
 when, standing upon one round of the steps and holding with 
 one hand to another, he threw himself round the corner 
 of the car, expecting to get hand and foot hold on similar steps 
 on the other side, from whence he could easily have passed to the 
 deadwood in the center of the end of the car, where the un- 
 coupling had to be made; but it so happened the car in question 
 had no such steps on it, and there being nothing there which 
 he could take hold of, appellee lost his balance and fell between 
 the rails of the track, the moving train passing over his body. 
 In doing so, the iron rods under the center of the brake-beam 
 came in contact with his left arm, crushing and mangling it 
 from the fingers up to within about four or five inches of the 
 shoulder, where, by reason of the injury thus received, it was 
 subsequently amputated. 
 
 " The negligence with which the company is charged, and 
 which is relied on for a recovery by appellee, is the company's 
 failure to provide the car in question with end-steps or ladder 
 to be used in making couplings and uncouplings, and for other 
 purposes. It is alleged in substance, in each of the three counts 
 of the declaration, that it was the duty of the defendant ' to pro- 
 vide only properly and carefully constructed ears, with end-lad- 
 ders, side-handles and steps thereto attached, 1 and that by reason 
 of its failure to do so the injury in question occurred. A direct 
 issue was formed upon this averment in the declaration by the 
 defendant's plea, and the same has been conclusively settled 
 against the appellant. It remains, therefore, to inquire what, 
 if any, errors of law appear of record requiring a reversal." 
 
 After a discussion of the question whether the fact 
 that the plaintiff's arm was 'crushed and mangled so 
 that it had to be amputated was evidence from which 
 the jury might infer the extent it impaired his ability 
 to pursue his business and caused him pain and suffer- 
 ing, and after disposing of all the other questions pre- 
 
THE WARNER CASE. 39 
 
 sented in favor of the appellee, the opinion concludes 
 as follows : 
 
 " It is also objected that the trial court erred in refusing to 
 give appellant's second instruction as asked, and also in modi- 
 fying it and giving it to the jury as modified. From the proofs 
 in this case there is little, if any, ground to doubt the appellant 
 was using on its road other cars without' end-steps or ladders 
 besides the one in question, and there is also evidence tending 
 to show this fact was known to the appellee. Assuming that a 
 part of the appellant's cars then in use were of that kind, and 
 that the appellee had knowledge of the fact, it was clearly his 
 duty, before attempting to pass from the side to the end of the 
 car in the manner he claims he did, for the purpose of uncoup- 
 ling it, to have ascertained whether it was one of that kind or 
 not, and if he found it was, it certainly would have been negli- 
 gence on his part to attempt to make the coupling in the man- 
 ner he did. Now, with a view of directing the attention of the 
 jury specially to this aspect of the case, appellant's counsel 
 asked the court to give the jury the following instruction, being 
 the one just alluded to : 
 
 " ' The jury are instructed, as a matter of law, that it was 
 the duty of the plaintiff, before attempting to uncouple the car 
 in question, to use ordinary and reasonable care to ascertain 
 whether it was safe to do so, or not, while the train was in 
 motion ; and if the jury believe, from the evidence, that it was 
 not safe for the plaintiff to uncouple said car at the time he 
 attempted it, and that the plaintiff knew, or might by the 
 exercise of ordinary care have known, that it was not safe to 
 attempt it, then the plaintiff cannot recover, and the verdict 
 should be for the defendant.' 
 
 " Which the court refused to do, but gave as a substitute 
 for it the following : 
 
 "' The jury are instructed, as a matter of law, that it was 
 the duty of the plaintiff, in attempting to uncouple the car in 
 question, while the train was in motion, to exercise great care 
 and caution to prevent being injured ; and if the jury believe, 
 from the evidence, that it was not safe for the plaintiff to 
 uncouple said car at the time he attempted it, and that the 
 
40 RAILROAD OASES REVIEWED. 
 
 plaintiff knew, or might by the exercise of ordinary care have 
 known, that it was not safe to attempt it, then the plaintiff 
 cannot recover, and the verdict should be for the defendant.' 
 
 " We perceive no objection to the instruction as originally 
 asked. As drawn, it would have accomplished the object for 
 which it was prepared ; the substitute did not. The original 
 told tbe jury in plain, unequivocal terms, ' it was the duty of 
 the plaintiff, before attempting to uncouple the car in question, to 
 use ordinary and reasonable care to ascertain whether it was 
 safe to do so, or not, while the train was in motion.'' Now, this 
 proposition (the leading one in the instruction, and which, under 
 the proofs, is entirely accurate) is not found in the substitute, 
 nor is its equivalent. To tell the jury, as was done in the sub- 
 stitute, ' that it was the duty of the plaintiff, in attempting to 
 uncouple the car while the train was in motion, to exercise 
 great care and caution to prevent being injured,' is quite a 
 different thing from telling them that it was his duty, before 
 attempting to uncouple the car, to use ordinary and reasonable 
 care to ascertain whether it was safe to do so, or not, while the 
 train was in motion. The care and diligence contemplated by 
 the original instruction, on the part of the plaintiff, was 
 required to be exercised before attempting to uncouple the car ; 
 that contemplated by the substitute, while attempting to un- 
 couple. The two ideas are radically distinct, as will fully appear 
 from a moment's thought. Under the substitute, so far as the 
 first proposition in it is concerned, the jury might very well 
 have concluded, that however rash and grossly negligent the 
 undertaking may have been, yet if the plaintiff used due care 
 and caution while the coupling was being attempted, he might 
 nevertheless recover ; and conceding this view is modified by 
 the latter branch of the instruction, still the instruction, as a 
 whole, was sufficiently uncertain as to have misled the jury ; 
 at any rate, it did not state the proposition of law announced 
 by the original instruction, and cannot, in any legal sense, be 
 regarded as its equivalent. 
 
 " We are of opinion the court erred in refusing the'instruc- 
 tion as asked, and the judgment should have been reversed by 
 the appellate court for that reason. An error of this kind, as 
 is well known, does not, and ought not, always to reverse ; but 
 
THE WARNER CASE. 41 
 
 every case in this respect must depend upon its own circum- 
 stances. Where the reviewing court can see the case has been 
 fairly tried, and that the judgment is clearly right upon the 
 facts, and that consequently another trial must necessarily 
 result the same way, it will not reverse on the ground an erro- 
 neous instruction may have been given, or a proper one has 
 been refused. Quite a different rule prevails where the case is 
 a close one on the facts. In such a case, where the evidence is 
 about evenly balanced, the reviewing court will reverse for any 
 substantial error in the trial court on a material question that 
 may have turned the scale in favor of the successful party. 
 The present case we regard as coming within this rule. 
 
 " The judgment of the appellate court is reversed, and the 
 cause remanded, with directions to reverse the judgment of the 
 circuit court and remand the cause for further proceedings in 
 conformity with this opinion." 
 
 Is it true, as a matter of law, that it was the duty 
 of the appellee, before attempting to pass from the 
 side to the end of the car for the purpose of uncoup- 
 ling it, to ascertain whether it was one of the kind 
 without end-steps or ladders, or is that simply true as 
 a matter of fact ? If it is true as a matter of law, 
 then it will be conceded there is some force in the 
 reasoning of the court, but if it is simply true as a 
 matter of fact, there was no error in refusing the in- 
 struction, for it is the duty of the court to decide only 
 matters of law, and it is the province of the jury to 
 determine questions of fact. Whatever doubts may 
 formerly have existed as to the respective provinces of 
 court and jury in this class of cases were apparently 
 solved by the decision of the court in Pennsylvania 
 Co. v. Conlan,' 101 111. 96, in which Mr. Justice Schol- 
 field, in delivering the opinion of the court, says : 
 
 "In Great Western R. R. Co. v. Haworth et aZ., 39 111. 353, 
 this court ruled, ' negligence is not a legal question, but is one 
 of fact, and must be proved like any other'; and this was fol- 
 
42 RAILROAD CASES REVIEWED. 
 
 lowed in Chicago & Alton R. R. Co. r. Pennell, 94 111. 448. Of 
 course this does not mean that the definition of negligence is 
 one of fact, and that the jury shall be left to their own fancies 
 to determine what, in each case, shall be the measure to which 
 the proof shall be applied in determining whether there is 
 negligence, but, simply the general rule being declared as mat- 
 ter of law, the jury must determine whether such facts have 
 been proved as bring the case within that general rule. Thus, 
 in the Haworth Case, supra, negligence was defined to be ' the 
 opposite of care and prudence, the omission to use the means 
 reasonably necessary to avoid injury to others,' and it was left 
 • to tbe jury to determine, from all the evidence, whether the 
 party charged with the negligent act was thus guilty; that is, 
 whether the party had failed to exercise care and prudence, or, 
 in other words, omitted to use the means reasonably necessary 
 to avoid injury to the other party." 
 
 As is stated in the introductory part of the opinion, 
 the negligence of the defendant in not providing pro- 
 perly constructed cars, with end-ladders, side-handles 
 and steps thereto attached, was conclusively settled 
 against appellant, and the only question presented by 
 the instruction held proper by the court was as to the 
 measure of care required of the plaintiff. From the 
 statement of the court, it appears there was evidence 
 tending to show the defendant was using on its road 
 other cars without end-steps or ladders, besides the 
 one in question, and that this fact was known to the 
 plaintiff. Whether, however, this was known to the 
 plaintiff was not a question of law for the court, but a 
 question of fact for the jury. If it was known to him, 
 it might properly be said that it was his duty to use 
 reasonable and ordinary care to ascertain whether it 
 was safe to attempt to uncouple the car. But if, on 
 the contrary, it was not known to him, it was for the 
 jury to say, under all the circumstances shown by the 
 evidence, whether it was his duty to use ordinary care 
 
THE WAENEE CASE. 43 
 
 to ascertain whether it was safe to attempt the uncoup- 
 ling, or whether he might not, without examination, 
 assume it was safe, and yet not be guilty of a want of 
 ordinary care. If it is true, and the jury have so 
 found, that the defendant was guilty of negligence in 
 having such a car in the train, and without such neg- 
 ligence the injury to plaintiff would not have occurred, 
 the plaintiff could not have been expected to antici- 
 pate such negligence and guard against it. But to 
 absolutely require of him, before attempting to un- 
 couple the car, to use ordinary care to ascertain 
 whether it was safe to do so, is equivalent to requir- 
 ing him, before discharging his duty, to ascertain 
 whether the company had discharged its duty. This 
 is more than any man ought to be required to do. At 
 least, whether it is or not is a question of fact for the 
 jury, rather than a question of law for the court. 
 
 This may have been the view taken by the circuit 
 judge. He may have supposed the instruction as 
 offered would have a tendency to mislead the jury 
 into the belief that the law required of the plaintiff, 
 before attempting to uncouple the cars, to pause and 
 hesitate for the purpose of deliberating upon and 
 determining the question whether it was safe to do so, 
 and that, as a matter of law, he had no right to assume 
 the defendant had provided proper cars, but that the 
 law required him to act upon the assumption that 
 such duty had been neglected. If such was the judge's 
 view, he was but exercising one of the prerogatives of 
 the judicial office in modifying the instruction so as to 
 obviate the objection and state the law in the manner 
 that seemed to him most proper to enlighten the jury 
 without misleading them. In support of the propriety 
 of his action, it will not be out of place to repeat what 
 is said by Mr. Justice Bradley, in delivering the opin- 
 
44 RAILROAD CASES REVIEWED 
 
 ion of the court, in Continental Improvement Com- 
 pany v. Stead, 95 U. S. 165, where he says : 
 
 " Perhaps some of the abstract propositions of the defen- 
 dant's counsel contained in the instructions asked for, based on 
 the facts assumed therein, if; such facts were conceded or found 
 in a special verdict, would be technically correct. But a judge 
 is not bound to charge upon assumed facts in the ipsissima 
 verba of counsel, nor to give categorical answers to a juridical 
 catechism based on such assumption. Such a course would 
 often mislead the jury instead of enlightening them, and is 
 calculated rather to involve the case in the meshes of technicality 
 than to promote the ends of law and justice. It belongs to the 
 judicial office to exercise discretion as to the style and form in 
 which to expound the law and comment upon the facts. If a 
 judge states the law incorrectly, or refuses to state it at all, on 
 a point material to the issue, the party aggrieved will be enti- 
 tled to a new trial. But when he explains the whole law 
 applicable to the case in hand, as we think was done in this 
 case, he cannot be called upon to express it in the categorical 
 form based upon assumed facts which counsel choose to present 
 to him." 
 
 But the instruction as drawn and as given by the 
 court states the law more favorably to the defendant 
 than it had any right to expect^ for it forbids a re- 
 covery for the plaintiff, if he "knew, or might by the 
 exercise of ordinary care have known," that it was not 
 safe to attempt to uncouple the car. So, if there was 
 a mere possibility that plaintiff, by the exercise of 
 ordinary care, would have discovered it was unsafe, he 
 could not recover. This may be hypercriticism, but it 
 is warranted by the ruling of the Appellate Court of 
 the First District in W., St. L. & P. R'y Co. v. Moran, 13 
 Brad. 75. In that case the court below gave the fol- 
 lowing instruction: 
 
 " The jury are instructed, as matter of law, that the 
 defendant would not be liable for an injury resulting from a 
 
THE WABNEB, CASE. 45 
 
 defect which, by the exercise of ordinary and reasonable care, 
 it could not have discovered and corrected, and if an injury 
 occurs from a defect in a car in their train, which, by the exer- 
 cise of reasonable and ordinary care, it could have discovered 
 and corrected, then the defendant would be liable for any 
 injury resulting therefrom to a pers6n who was at the time in 
 its employ in the line of his duty under such employment, and 
 who at the time of such injury was in the exercise of reason- 
 able and ordinary care and prudence himself, and ignorant of 
 said defect." 
 
 Of this instruction the court, per Bailey, P. J., say : 
 
 " Another criticism which may properly be made to the 
 instruction is, that it holds the defendant liable if the defect 
 causing the injury was one which, by the exercise of reasonable 
 and ordinary care, could have been discovered and corrected. 
 The language here employed is more objectionable than that 
 commented upon and disapproved by this court in Moody v. 
 Peterson, 11 Bradwell, 180, and what was said there applies 
 with even greater force here. It would be difficult to conceive 
 of a defect in machinery not entirely latent, and hidden beyond 
 the range of ordinary observation or inspection, which could 
 not, as a matter of possibility, be discovered by reasonable and 
 ordinary care. But that is not the criterion by which the 
 exercise of reasonable and ordinary care is to be determined. 
 The jury should have been left to say what in their judgment 
 would have been discovered by the exercise of ordinary care, 
 not what could have been thus discovered." 
 
 If this opinion be sound, and no doubt it is, for the 
 law, as will hereafter be shown, conclusively pre- 
 sumes that an appellate court never makes a mistake 
 when it reverses a judgment of a circuit court, the 
 learned judge who tried the Warner Case in the court 
 below was justified in refusing the instruction offered. 
 Hence the defendant could not complain of its modi- 
 fication, if, as modified, it stated a proposition of law 
 which was not prejudicial to defendant. Such was 
 
46 RAILROAD CASES REVIEWED. 
 
 the ruling of the court in Ryan v. Donnelly, 71 111. 
 103, where Mr. Justice Craig, in delivering the opinion 
 of the court, says: 
 
 "We are inclined to the opinion that these instructions 
 should not have been given to the jury at all, as there was not 
 evidence sufficient upon which to base them, and for this rea- 
 son defendants are not in a position to complain of their modi- 
 fication." 
 
 But if it be conceded that it would have been 
 proper for the court to tell the jury it was the duty of 
 plaintiff, before attempting to uncouple the car, to 
 exercise ordinary care to ascertain whether it was 
 safe to do so, and that the instruction as offered was in 
 all other respects proper, does it follow that its refusal 
 and the giving of the substitute should be a sufficient 
 ground for the reversal of the judgment by the supreme 
 court? If so, what becomes of that formerly much 
 talked of discretion vested in the trial judge and in 
 the appellate court of determining, after a careful 
 consideration of the whole case, whether the trial of 
 the cause has not been as fair and just as can Reason- 
 ably be expected under a system of administering 
 justice created by human beings? In delivering the 
 opinion of the court, in Schmidt v. Sinnott, 103 111. 
 160, Mr. Justice Mulkey very aptly said: 
 
 " As man, when representing the highest state of culture 
 and civilization, is conceded to be imperfect, it necessarily 
 follows, on the principle a stream can never rise higher than its 
 fountain, all his works are to some extent imperfect; and this 
 principle extends to instructions as well as everything else. It 
 is not to be expected they will be precisely accurate in every 
 particular. It is sufficient if they are substantially so. The 
 administration of the law is intended to be practicable, ana to 
 reverse cases and set aside the verdicts of juries merely because 
 the highest degree of accuracy has not been attained in the 
 
THE WARNER CASE. 47 
 
 preparation of the instructions, when the court can see sub- 
 stantial justice has been done, would not only be defeating the 
 chief object of judicial investigations, but would bring the court 
 into deserved disrepute." 
 
 The circuit judge usually is, and certainly should 
 be presumed to be a man of integrity and ability. He 
 ought to be credited with a disposition to treat both 
 parties fairly. When a motion for a new trial is made 
 before him and some trivial error is called to his 
 notice and he declares it to be insufficient to warrant 
 the' granting of a new trial, it ought to be presumed 
 that he has carefully considered the whole case and 
 honestly arrived at the conclusion that the error in 
 nowise affected the result, but that the verdict would 
 have been the same had the error not been committed. 
 His facilities for determining this question are far 
 superior to that of any appellate tribunal, and such 
 tribunal ought not to overrule his decision without 
 first being satisfied that the error must have pre- 
 j udiced the party against whom it was made. Especially 
 should this be the rule in the supreme court, when it 
 appears that the exercise by the circuit judge of his 
 discretion has been approved by an able appellate 
 court. 
 
 The error of the supreme court, however, in the 
 case in question, if it was an error, was one which was 
 made after a careful consideration of the whole case; 
 and whatever may be the criticism to which it is 
 justly liable, the opinion is in one respect highly com- 
 mendable. It disposes of all the questions presented 
 by the record, thus informing the trial court which of 
 its rulings were correct and which incorrect; and in 
 this respect it is a marked departure from the vicious 
 habit into which the appellate and supreme courts 
 have fallen of reversing a judgment upon a single 
 
48 RAILROAD CASES REVIEWED. 
 
 point and leaving the other questions presented un- 
 decided. The form of expression which those courts 
 generally adopt in such a case is about, as follows: 
 "Other questions have been raised and argued by 
 appellant's counsel, but we do not think it necessary 
 to remark upon them here. The point indicated is 
 decisive of the judgment, and the other questions 
 argued will not be likely to arise on another trial, 
 and hence it is not necessary to consume time in the 
 discussion of them here." To dispose of an important 
 cause in such a way is not doing justice either to the 
 trial court, the counsel, the parties, or the public. 
 Interest reipublicce ut sit finis litium is a maxim which 
 should be kept in mind in such a case. An appellate 
 court, and especially a court of last resort, should, 
 when they reverse a judgment, decide all the questions 
 presented by the record upon which their opinion 
 is asked, to the end that it may not be possible for 
 the trial court, upon retrying the cause, to commit any 
 error that may have been committed upon the former 
 trial, and that after a reasonable number of trials 
 and reversals it may be possible to secure a trial with- 
 out error. 
 
 THE MORANDA CASE. 
 
 This was also an appeal from the Appellate Court of 
 the Second District. The action was brought to recover 
 from the railroad company for an injury resulting in 
 the death of plaintiff's intestate. Moranda was the 
 foreman of a party of track repairers, and while 
 engaged in his duty was killed by a large lump of 
 coal carelessly cast by the fireman from the tender 
 attached to the locomotive of a passing express train. 
 The first trial of the cause resulted in a verdict and 
 judgment of $4,000 for the plaintiff. An appeal was 
 
THE M0RANDA CASE. 49 
 
 taken to the supreme court, where the judgment was 
 reversed and the cause remanded, on the sole ground 
 that the court below permitted the plaintiff to prove 
 that the widow and children of the deceased " had no 
 other means of support save that arising from his daily 
 earnings,"— a ruling the propriety of which will be 
 discussed in a subsequent chapter. 
 
 The case is reported in 93 111. 303. The opinion of 
 the court was delivered by Mr. Justice Dickey, and is 
 an exhaustive discussion of the law of fellow-servants. 
 The conclusion of the court was, that the appellant 
 could not be sustained in the proposition that the ac- 
 tion was barred because of the relation of Moranda 
 and the fireman as fellow-servants. A large number 
 of cases were cited in support of this view, in two of 
 which it was expressly decided by the supreme court 
 that a fireman and a track repairer were not fellow- 
 servants within the meaning of the rule, C. & N. W. 
 Railway Co. v. Swett, 45 111. 197; T. W. & W. Railway 
 Co. v. O'Connor, 77 111. 391. Among other things, the 
 court say: 
 
 ' " An examination of the decisions of this court upon this 
 question will show that the judgments are all in full and strict 
 accord with these views, and it is believed no case can be found 
 in our own reports where the common master has been held 
 exempt from liability for injury to one servant by the neglect 
 of another, where it does not appear that the servants were either 
 strictly co-operating in the particular work they were about or 
 were usually consociated in their ordinary duties." 
 
 The last trial of the cause in the circuit court was 
 had before the Hon. Joseph M. Bailey, one of the judges 
 of the Appellate Court of the First District. At the 
 request of the plaintiff the judge gave the following 
 instruction: 
 
50 RAILROAD CASES REVIEWED. 
 
 " The jury are instructed that a man employed by a railroad 
 company in the capacity of a section foreman, having charge 
 and oversight of repairs upon a certain portion of its track, is 
 not engaged in the same line of duty with an engineer and fire- 
 man running such company's locomotive engines, and is there- 
 fore not within the rule which exempts the common employer 
 from liability to one of its employes for damages resulting from 
 the fault, carelessness or, negligence of a fellow-servant or co- 
 employe." 
 
 Mr. Justice Scholfield, in delivering the opinion of 
 the supreme court (108 111. 576), with reference to this 
 instruction and certain testimony admitted upon the 
 trial, says: 
 
 " Even if, when the case was here before, we had found, on 
 the facts then before us, that the intestate and fireman and en- 
 gineer were not so co-operating or consociating at the time of 
 the injury as to exempt the common master from liability for 
 injury received by the one in consequence of the negligence of 
 the other, this instruction ought not to have been given. 
 Whether they were so co-operating or consociating is a question of 
 fact for the jury, and not of law for the court. (Wabash Rail- 
 way Co. v. Elliott, 98 111. 481; Pennsylvania Co. v. Conlan, 101 
 id. 93; Chicago & Alton R. R. Co. v. Bonifield, 104 id. 223; Indi- 
 anapolis & St. Louis Railroad Co. v. Morgenstern, 106 id. 2f6). 
 In the last named case we said : ' The definition of fellow-servants 
 may be a question of law, but it is always a question of fact, to be 
 determined from the evidence, whether the particular case falls 
 within the definition.' 
 
 " In the former opinion in this case, ubi supra, we held that in 
 order to constitute servants of the same master 'fellow-servants,' 
 within the rule respondeat superior, it is not enough they are 
 engaged in doing parts of some work, or in the promotion of 
 some enterprise carried on by the master, not requiring co-opera- 
 tion nor bringing the servants together or into such personal 
 relations that they can exercise an influence upon each other 
 promotive of proper caution in respect of their mutual safety, 
 but it is essential that they shall be, at the time of the injury, 
 directly co-operating with each other in the particular business 
 
THE MORANDA CASE. 51 
 
 in hand, or that their usual duties shall bring them into habitual 
 consociation, so that they may exercise an influence upon each 
 other promotive of proper caution. We feel constrained to 
 adhere to this ruling, notwithstanding the very ingenious and 
 able argument of counsel for appellant in favor of its modifica- 
 tion. 
 
 " But it is essential, not only that the rule shall be given to 
 the jury with substantial accuracy, but also that the jurors shall 
 thereupon be left free to form and declare, from the evidence 
 before them, their opinion upon the question of fact.. Because 
 the evidence upon a former trial may have justified a particular 
 conclusion of fact, it does not follow that the evidence on this 
 trial justifies the same conclusion, and it is for the jury to deter- 
 mine, and not for the court to assume, what is the conclusion 
 authorized by the evidence. Under our practice it is not admissi- 
 ble for the court to express any opinion to the jury on questions 
 of fact, and it is no less so because the opinion expressed may 
 be in conformity with a previously expressed opinion of this 
 court upon reviewing a question of fact. Where there is evi- 
 dence before a jury upon which it is legally admissible there may 
 be difference of opinion, it is error to allow any opinion of judge 
 or court to be obtruded upon the jurors to influence their deter- 
 mination. There was here such evidence, in our opinion, and 
 the giving of the instruction was, therefore, clearly erroneous. 
 
 " On the trial the appellee was permitted to ask of a witness, 
 and the witness was permitted to answer over appellant's objec- 
 tion, what the witness considered a safe distance to retire from 
 
 7 % 
 
 the track when the trains are passing. This was error. The 
 matter is not such as requires the opinion of an expert. We 
 cannot conceive that it can be better known to a man familiar 
 with the operation of railroads, than to one who is not, that 
 the safe distance is always beyond, and the unsafe' distance is 
 always within, the line of danger, and whether the line of dan- 
 ger is at one distance rather than another depends upon 
 facts, not upon opinions. If there is danger from passing cars, 
 the questions naturally arise, what is its nature? — How far 
 does it extend? And the jury being enlightened in these re- 
 spects determine for themselves what is a ' safe distance.' The 
 witness is not to be allowed to usurp their functions. Hopkins 
 
52 RAILROAD CASES REVIEWED. 
 
 v. Indianapolis & St. Louis Eailroad Co., 78 111. 32; Pennsylvania 
 Co. v. Conlan, supra. 
 
 " A witness occupying the position of roadmaster of a por- 
 tion of appellant's road at the time the intestate was injured, 
 being called on behalf of appellant, testified that he had given 
 the intestate instructions a number of times about getting out 
 of the way of trains, etc. Appellee thereupon, in rebuttal, 
 called the other men, or at least several of them, who worked 
 under the intestate at that time, and was permitted by the court, 
 over appellant's objection, to prove by them severally that the 
 roadmaster gave them no such instructions. This was improper. 
 The roadmaster had not testified that he gave these individuals 
 such instructions; and because he did not do so, or because they 
 did not hear him so instruct the intestate, it does not follow that 
 his testimony is untrue." 
 
 It may be conceded that in giving the instruction 
 the circuit court committed an error. . But the learned 
 judge, who presided at the trial, undoubtedly had in 
 mind the opinion of the supreme court declaring that 
 "it is believed no case can be found in our own 
 reports where the common master has been held ex- 
 empt from liability for injury to one servant by the 
 neglect of another, where it does not appear that the 
 servants were either strictly co-operating in the par- 
 ticular work they were about, or were usually conso- 
 ciated in. their ordinary duties." He also had in mind 
 the fact that in two prior decisions the supreme court 
 had expressly declared that a fireman and a track 
 repairer were not fellow-servants within the meaning 
 of the rule. In his judgment, fortified as it was by 
 these opinions, no doubt could exist in the mind of a 
 reasonable man that Moranda and the fireman were 
 neither strictly co-operating in the particular work 
 they were about, nor were they usually consociated in 
 their ordinary duties, and hence were not fellow-ser- 
 vants within the meaning of the rule, and that conse- 
 
THE MORANDA CASE. "53 
 
 quently the question whether they were such fellow- 
 servants was not a controverted question of fact that 
 need be submitted to a jury, but that the attention of 
 the jury ought to be directed to the really controverted 
 questions of fact in the case, and to no others, to the 
 end that they might not be needlessly confused. 
 
 The trial judge was also undoubtedly familiar with 
 the ruling of the supreme court in I. C. R. R. Co. v. 
 Keen, 72 111. 512, where Mr. Justice Scholfield, in de- 
 livering the opinion of the court, says: 
 
 " This action was brought against the defendant for negli- 
 gence in killing the plaintiff's intestate. He was a brakeman on 
 a water train running between Centralia and Big Muddy, and 
 was killed by the explosion of the boiler of the engine, on the 
 11th of December, 1871, a few miles south of Centralia. There 
 is no question but that he and the engineer, Houck, who was 
 also killed at the same time, were fellow-servants, in the same 
 branch of employment, and if the defendant's death was caused 
 by the carelessness of Houck, there can be no recovery. The 
 case of Illinois Central Railroad Co. v. Houck, Admr., ante, page 
 285, presenting the question of Houck's negligence on that 
 occasion, was argued in connection with the present case, and 
 we have considered them together. In that case we were of 
 opinion, and so held, that the evidence clearly shows that the 
 explosion resulted from Houck's negligence in running with 
 more steam than the rules of the company allowed, and in not 
 keeping his boiler properly supplied with water. 
 
 " The same view of the evidence must apply to the present 
 case, and the result necessarily is, that the judgment must be 
 reversed, and judgment will be given in behalf of appellant for 
 costs in this court and in the court below." 
 
 Having in mind the saying that it is a poor rule 
 that won't work both ways, the judge believed, no 
 doubt, that if it was proper for the supreme court to 
 deprive a plaintiff of the right of trying by jury the 
 question whether a brakeman and an engineer were 
 
54 RAILROAD CASES REVIEWED. 
 
 fellow-servants, it could not be any the less proper for 
 the circuit court to deprive a defendant of the right 
 of trying by jury the question whether a track repairer 
 and a fireman were fellow-servants. If it be conceded 
 that his action was an unlawful assumption of power 
 which he could not rightfully exercise, how much more 
 unlawful and unwarranted was it than that of the 
 supreme court, when they not only determined for 
 themselves the controverted questions of fact whether 
 the engineer was guilty of negligence and -whether the 
 engineer and brakeman were fellow-servants, but also 
 reversed the two judgments without remanding the 
 causes and entered judgments against the appellees 
 for costs in both courts, thus leaving both plaintiffs 
 out of court and depriving them of the right of trial 
 by jury? 
 
 Again, it may not have seemed clear to Judge Bai- 
 ley that the question whether Moranda and the engi- 
 neer were fellow- servants was purely a question of 
 fact. It would very likely have appeared to him that 
 it was a question of law, if he was familiar with the 
 ruling of the supreme court in Clark v. C. B. & Q. B. R. 
 Co., 92 111. 46. In that case there was a verdict and 
 judgment in favor of the plaintiff in the circuit court, 
 but the appellate court reversed the judgment and 
 entered a verdict and judgment of their own against 
 the plaintiff under a peculiar provision of the practice 
 act to be hereafter considered. The finding of facts 
 was in substance that plaintiff, a locomotive engineer 
 in defendant's service, was, without fault on his part, 
 injured by a collision with a train of another railroad 
 company, a lessee of defendant, which collision was 
 caused by the negligence of the conductor of that 
 train. Mr. -Justice Scott, in delivering the opinion of 
 the supreme court, says : 
 
THE MORANDA CASE. 55 
 
 " It is certified to us, the appellate court found ' the facts as 
 stated in its opinion, 1 which is made apart of the record; and as 
 such finding, under our statute, is conclusive, there can be no 
 disagreement in this court as to the facts. 
 
 " Two propositions of law arising on the facts as found have 
 been discussed: First, was plaintiff engaged in a common em- 
 ployment with Gage, the conductor of the ' wild train ' whose 
 negligence or willfulness was the proximate cause of the injury 
 to plaintiff ; and second, was plaintiff injured by one of the 
 ordinary perils of the service in which he was engaged? 
 
 "As an affirmative answer to the second question will be 
 conclusive of the case, no discussion need be had on the first 
 proposition." 
 
 And after reciting the circumstances set forth in 
 the finding of facts, the opinion concludes as follows: 
 
 "The running of trains is known to be a dangerous occupa- 
 tion, and that in which plaintiff was engaged was, no doubt, 
 rendered' more so by reason of the fact trains were run over the 
 same track by two distinct companies. But it cannot, with 
 any show of reason, be claimed that plaintiff was injured by 
 anything that defendant did to render the service more dangerous 
 than it was known to him to be before he engaged in it. Op- 
 portunity was afforded him to ascertain and become familiar 
 with the work to be performed and the peculiar dangers to 
 which he would be exposed, and knowing them as well as he 
 did, the law is well settled, he assumed all the ordinary risks 
 incident to his engagement. The negligence of the employes 
 of the lessee company is one of the hazards against which, it 
 must be presumed, 'he contracted. There is no warrant in law, 
 or in any consideration that concerns the public welfare, for 
 the proposition that defendant impliedly contracted with 
 plaintiff that the employes of the lessee company would observe 
 strictly the rules adopted to secure safety in the running of 
 trains over the road in which both companies were engaged. 
 Experience teaches that in no service do the employes always 
 observe due care. In railroad, as well as other hazardous labor, 
 every cautious person cannot but anticipate that there may be 
 
56 RAILROAD CASES REVIEWED. 
 
 omissions of duty on the part of employes that might expose 
 co-employes to injuries. Such are among the ordinary ex- 
 posures, and if a party is unwilling to assume such risks he 
 must not engage in the service. It is a matter of no con- 
 sequence whether plaintiff was in a common employment with 
 the servant of the lessee company whose negligence or willful- 
 ness caused the injury. Plaintiff was not injured by any cause 
 outside of the ordinary perils of the service in which he was 
 engaged. He was exposed to no new dangers by any negligent 
 conduct of defendant that he could not have anticipated before 
 he entered upon the performance of his engagement. The 
 cases in this court are conclusive of this view of the law. In- 
 dianapolis, Bloomington & Western Railroad Co. v. Flanigan, 
 77 111. 365; Chicago & Northwestern Railroad Co. v. Ward, 61 
 id. 131. The judgment must be affirmed." 
 
 If we examine the opinion of' the appellate court 
 referred to as containing the finding of facts (see C. B. 
 & Q. R. R. Co. v. Clark, 2 Brad. 600), we learn that the 
 court, per Davis, J., say: 
 
 "But in this case the question to be determined is, what 
 relation did Gage, the conductor of the Wabash train, sustain 
 to the C. B. & Q. road, and to the appellee, at the time of the 
 collision ? Was he a servant of the appellant, and fellow-ser- 
 vant of appellee, or was he a servant of the Wabash road ? 
 
 " The same track being used by the two companies, a due 
 regard for the safety of the traveling public and the proper 
 dispatch of business required that one of the two should have 
 the sole control and government of all trains running over it ; 
 and to that end the agreement entered into between the two 
 roads in 1859 permitted the Wabash to run its trains over the C. 
 
 B. & Q. road on the time-table of the latter, and subject to the 
 orders, rules and regulations, and under the sole control, of the 
 
 C. B. & Q., and although the employes of the Wabash road were 
 engaged and paid by that company, yet from the time they 
 entered with their trains upon, and while they remained on, the . 
 road of appellant, the management and control of such trains 
 and employes passed to and devolved upon the C. B. & Q. road, 
 and it became liable for all damages which might result from 
 
THE M0RANDA CASE. 57 
 
 injury caused by the negligence or mismanagement of the 
 same. We think appellant must be regarded as the common 
 master of appellee and of Gage, the Wabash conductor. Both 
 were under the orders and control of appellant, so far as the 
 road was operated between Quincy and Camp Point. 
 
 " In the operation of that portion of appellant's road, appel- 
 lee and Gage were fellow-servants, both controlled and directed 
 by a common head, and required to obey a common will. The 
 Wabash road had no charge of, or control over, the wild train 
 while on appellant's road, and the employes in charge were, as to 
 the management of such train, tbe servants of, and subject to, 
 the orders of appellant alone. Gage, as the conductor of the 
 wild train, and appellee as engineer of the passenger train, knew 
 what their respective duties were, and what and whose orders 
 they were required to obey. They both knew it was their duty 
 to serve and obey the orders of the C. B. & Q., and that they 
 were under the control and management of the same master 
 while running between Camp Point and Quincy ; and while 
 they were acting under common orders and in the discharge of 
 common duties the accident occurred." 
 
 From these opinions of the appellate and supreme 
 courts the following facts appear : First, the jury "left 
 free to form and declare, from the evidence before 
 them, their opinion " upon the questions of fact, found 
 that Clark and Gage were not fellow-servants, and that 
 Clark was not injured by one of the ordinary perils of 
 the service in which he was engaged. Second, the ap- 
 pellate court reversed this finding, and, assuming the 
 functions of a jury, found that Clark and Gage were 
 fellow-servants and that the injury to Clark was 
 caused by one of the ordinary perils of the service in 
 which he was engaged. Third, the supreme court 
 held it to be a question of law whether Clark and 
 Gage were fellow-servants, and also a question of law 
 whether Clark was injured by one of the ordinary 
 perils of the service in which he was engaged. Fourth, 
 the supreme court held that conceding Clark and Gage 
 
58 ' BAILROAD CASES REVIEWED. 
 
 were not fellow-servants, yet, as a matter of law, the 
 injury to a servant of a railroad' company through a 
 collision of trains caused by the negligence of another 
 servant of the company, not a fellow-servant, was an 
 injury caused by one of the ordinary perils of the 
 service. 
 
 Notwithstanding all this, the judgment in the 
 Moranda case was reversed, because, in giving an in- 
 struction stating that a track repairer and a fireman 
 were not fellow-servants, the trial judge had usurped 
 the province of the jury by deciding that which was 
 purely a question of fact upon which it was essential 
 that the jurors should be left free to form and declare 
 their own opinion. Had the decision of the supreme 
 court been placed upon the ground that, as a matter 
 of law, Moranda and the fireman were fellow-servants 
 and that the injury to Moranda was caused by one of 
 the ordinary perils of the service in which he was 
 engaged, it would have been apparently consistent 
 with ruling in the Clark Case, supra, but it could 
 scarcely have been reconciled with the opinion of the 
 court delivered by Mr. Justice Dickey, upon the first 
 appeal in the Moranda Case, 93 111. 320, as would 
 appear from the following extract therefrom : 
 
 " When, therefore, it is said in this connection, that a servant 
 assumes, by entering the service of his master, any given hazard, 
 it is merely another form of saying that, under all the circum- 
 stances, the law imposes that hazard upon him. Remembering, 
 then, that in this state it is held that the law does not impose upon 
 the servant the risk as to the neglect of all the servants of his 
 master engaged in the same general enterprise, but confines that 
 risk to cases where he and the offending servant are, in a proper 
 sense, fellow.s, it will readily be perceived that these general 
 words are to be understood as applying to the cases in which 
 they are used — applying to cases where this court holds that 
 the law does impose the hazard upon the servant. In other 
 
THE MOEANDA CASE. 59 
 
 words, the servant, by engaging in the service, by an implied 
 promise takes upon him all risks which the law imposes upon, 
 him, and no others: and these are not improperly called 'ordi- 
 nary risks,' and embrace the exceptional negligence of careful 
 servants who are his fellow-servants within the law of this state, 
 but do not embrace the acts of negligence of other servants 
 of the same master who are not properly his fellows, although 
 engaged in parts of the same general enterprise of the common 
 master. 
 
 " Accordingly, this court has in many cases held the master 
 liable to the servant for damltge caused by the neglect of another 
 servant, although both were doing service contributing to the 
 accomplishment of the same general enterprise. 
 
 " In Chicago & Alton Railroad Co. v. Shannon, 43 111. 338, 
 the injury was to a brakeman, from the bursting of a boiler, 
 and the fault was the negligence of the foreman at the round- 
 house in sending out an unsafe engine. The master was held 
 liable. 
 
 " In Chicago & Northwestern Railroad Co. v. Swett, 45 111. 
 197, the injury was to a fireman upon a locomotive, and was 
 caused by the negligence of the track-repairers, in not keeping a 
 bridge or culvert in proper repair; and the master was held re- 
 sponsible. 
 
 " In Schooner Norway v. Jensen, 52 111. 373, the injury was 
 to a sailor on the sebooner, and was caused by the negligence of 
 other servants of the same master, whose duty it was to see that 
 the rigging and tackle of the vessel should not be sent out in 
 bad order or in a defective condition. It was held, the action 
 would lie. 
 
 " In the case of Illinois Central Railroad Co. v. Welch, 52 
 111. 183, the injury was to a brakeman on a passing train, and 
 was caused by the negligence of other servants of the company 
 in placing an awning at the station in dangerous proximity to 
 the operatives on passing trains; and the action was sustained. 
 
 " Where the injury was to a brakeman on a freight train, 
 and was caused by the negligence of other servants of the same 
 employer, having charge of the inspection and repair of cars, in 
 permitting a car to go out on the road with a defective ladder, 
 which defect was unknown to the brakeman, the common master 
 
60 RAILROAD CASES REVIEWED. 
 
 was held liable. Chicago & Northwestern Railroad Co. v. Jackson, 
 55 111. 4'd2. 
 
 " Where the injury was to a fireman upon a passing train, 
 and was caused by the negligence of other servants not con- 
 nected with the running of the train, in negligently placing a 
 ' mail catcher ' too near to the track, it was held, the action would 
 lie against the common master. Chicago, Burlington & Quincy 
 Railroad Co. v. Gregory, 58 111. 272. 
 
 " Where the injury was to a common laborer in a carpenter 
 shop of a railroad company, near the railroad track, and the 
 injury was caused by the negligence of the engineer in charge 
 of a passing train of the same company, the common master 
 was held liable. Ryan v. Chicago & Northwestern Railroad Co. 
 60 111. 171. 
 
 " In the case of Toledo, Peoria & Warsaw Railway Co. v. 
 Conroy, 61 111. 162, although the action was defeated on another 
 ground, the court endorse the proposition that, where the injury 
 was to a fireman, from defects in a railroad bridge unknown to 
 him, and which ought to have been known to other servants of 
 the same employer, and the injury came through the negligence 
 of the latter, an action will lie; and in this same case it was 
 afterwards so adjudged. 68 111. 560. 
 
 " In Chicago & Northwestern Railroad Co. v. Taylor, 69 111. 
 461, where the injury was to a station agent and switchman at 
 a way-station, and was caused by the negligence of other servants 
 of the company, whose duty it was to see that cars in passing 
 trains should not go out upon the road without proper lights 
 and proper brakes, the common master was held liable. 
 
 " In Illinois Central Railroad Co. v. Patterson, 69 111. 650, 
 it is laid down that an action will lie where the injury was to an 
 engineer of a passing train, and was caused by the negligence of 
 other servants of the common master, whose duty it was to see 
 that the railroad track was in good order, although that action 
 was defeated by the negligence of the servant who suffered the 
 injury. 
 
 " Where the injury was to a switcnman at a station, and re- 
 sulted from the negligence in the car inspectors in permitting 
 a caboose to go out on the road with a draw-bar which was too 
 short, the common master was made to answer to the injured 
 
THE MOEANDA CASE. 61 
 
 servant. Toledo, Wabash & Western Railway Co. v. Fredericks, 
 71 111. 294 
 
 " And where the servant injured was one of a party of track- 
 repairers, whose ordinary duties were not at the station, and the 
 injury occurred by reason of the negligence of an extra engineer, 
 whose duty was to take arriving engines to the round-house, 
 and while the party injured was temporarily engaged, by the 
 express orders of his foreman, in ditching the track at the 
 station, this court said that the rule which forbids a recovery 
 by a servant for an injury resulting from the negligence of a 
 fellow-servant, did not apply. Pittsburgh, Fort Wayne & Chicago 
 Railway Co. v. Powers, 74 111. 341. 
 
 " Where a brakeman upon a freight train was injured 
 through the negligence of other servants of the common master, 
 wjiose duty it was to send out no cars save those which were 
 safe, so far as could be ascertained, th$ common master was 
 held liable. Toledo, Wabash & Western Railway Co. v. Ingra- 
 ham, 77 111. 309. 
 
 " In the case of Toledo, Wabash & Western Railway Co. v. 
 O'Connor, 77 111. 391, the servant injured was a laborer em- 
 ployed as a track-repairer, on a section away from the station, 
 and, at the time of the injury, was coming from his work, with 
 his associates, over the main track, on a hand-car, and the injury 
 was caused by the negligence of the engineer upon a. passing 
 locomotive, and this court held the common master liable. 
 
 " So, where the injury was to an engineer by the explosion 
 of his engine, it was held that the engineer cannot be regarded 
 as a fellow-servant with the servants of the same master, whose 
 duty was to inspect and keep in order its engines. Toledo, 
 Wabash & Western Railway Co. v. Moore, 77 111. 217. 
 
 "So, where the injury was to an engineer operating. a train 
 on the railroad, and was caused by the negligence of the train 
 dispatcher, whose duty it was to regulate the movement of trains 
 by telegraphic orders or otherwise, it was held that the common 
 master was answerable. Chicago, Burlington & Quincy Rail- 
 road Co. v. McLallen, 84 111. 109. 
 
 " It will be seen, by the cases cited, that in all the cases 
 wherein the right of action has been denied upon the ground 
 
62 RAILROAD CASES REVIEWED. 
 
 that the injured servant and the offending servant were fellow- 
 servants, the facts show that they were brought into personal 
 consociation by their ordinary duties, or that at the time of the 
 injury they were actually co-operating in some particular work, 
 And it also appears that in the cases where the action has been 
 sustained no such relations existed. In the latter cases, this 
 court has said, they were not employed ' in the same department 
 of labor, 1 and that the one is ' not in the same line of employment ' 
 with the other; and again, that they did not ' co-operate in the per- 
 formance of their duties.' And in Gregory's Case, supra, it is said 
 that ' one servant can recover from a common master for the neg- 
 ligence of a fellow-servant, unless the latter is in the same line 
 of employment.' And again: ' The agents charged with that duty ' 
 (the duty of properly locating the mail catcher) 'had no possi- 
 ble connection with the running of the trains/ * * * 'The 
 duties were as different and as distinct as those of a conductor 
 and those of a track repairer.' In another case, by way of show- 
 ing that the relation of fellow-servants proper did not exist, it is 
 said, ' neither could control the other or know of his want of pru- 
 dence'; and again, they 'are not associated in the performance 
 of their duties.' And in one case, Ryan v. Railway Co., 60 111. 
 171, it is said that the reason for holding against a right of 
 recovery in certain cases of co-servants is, that, for the safety 
 of all, each servant, 'in the same department of business, 
 should be interested in securing a faithful and prudent discharge 
 of duty by his fellow-servants' ; and that each should be in- 
 duced ' to report to the master any delinquency of those engaged 
 with him in the performance of duty.' This reason, it is said, 
 ' cannot apply where one servant is employed in a separate and 
 disconnected branch of the business from that of another ser- 
 vant' ; and again it is said, ' the object of the rule of exemption of 
 the master is to make each servant vigilant in seeing that the 
 others are careful and faithful ' ; and it is added, ' where the rea- 
 son of the rule fails the application of the rule should cease.' " 
 
 With such an opinion as this before him as a guide 
 to the proper trial of the cause, it is not easy to perceive 
 how Judge Bailey could avoid instructing the jury 
 that Moranda and the lireman and engineer were not 
 
THE M0RANDA CASE. 63 
 
 fellow-servants. Had that been the only question in 
 the case and a verdict had been found for the defen- 
 dant, it would have been his clear duty to set it aside. 
 And, according to the latest decision of the supreme 
 court, Simmons v. Chicago & Tomah Railroad Co., 110 
 111. 340, when reasonably and fairly construed, it is the 
 right of the trial judge to direct the verdict, whenever, 
 in his opinion, the evidence in the case is of such a 
 character that a contrary verdict must be set aside. In 
 such a case it seems to be no longer essential " that the 
 jurors shall thereupon be left free to form and declare, 
 from the evidence before them, their opinion upon the 
 question of fact." 
 
 Aside from these authorities other considerations 
 may have led the learned judge to the conclusion that 
 there were objections to treating it as an inflexible 
 rule that it should be a question of fact for the jury 
 whether certain persons were fellow-servants. In I. 
 C. Eailroad Co. v. Whittemore, 43 111. 420, with refer- 
 ence to a rule of a railroad company requiring passen- 
 gers to surrender their tickets, Mr. Justice Lawrence, 
 in delivering the opinion of the court, says: 
 
 " The circuit court left it to the jury to say whether the 
 rule was reasonable. This was error. It was proper to admit 
 testimony, as was done, but, either with or without this testi- 
 mony, it was for the court to say whether the regulation was 
 reasonable, and therefore obligatory, upon the passengers. The 
 necessity of" holding this to be a question of law, and therefore 
 within the province of the court to settle, is apparent from the 
 consideration that it is only by so holding that fixed and per- 
 manent regulations can be established. If this question is to 
 be left to juries, one rule would be applied by them to-day and 
 another to-merrow. In one trial a railway would be held liable, 
 and in another, presenting the same question, not liable. 
 Neither the companies nor passengers would know their rights 
 or their obligations. A fixed system for the control of the vast 
 
64 RAILROAD CASES REVIEWED. 
 
 interests connected with railways would be impossible, while 
 such a system is essential equally to the roads and to the public. 
 A similar view has recently been taken of this question in the 
 case of Vedder v. Fellows, 20 N. Y. 126." 
 
 With much force could it be said that to leave it 
 wholly to the jury to determine whether two em- 
 ployes of a company were fellow-servants would re- 
 sult in its being held in one case that a track-repairer 
 and a fireman, or a brakeman and the foreman of a 
 round-house, or a brakeman and a car inspector, or 
 a common laborer and an engineer, or a brakeman and 
 an engineer, or a laborer on a construction train and the 
 conductor, were fellow-servants, and in another case, 
 and under the same evidence, that they were not. 
 Thus neither these railroad companies nor their em- 
 ployes would know their rights or their obligations. 
 The doctrine that the common master shall be exempt 
 from liability only where it appears " that the servants 
 were either strictly co-operating in the particular 
 work they were about, or were usually consociated in 
 their ordinary duties," is a part of the judicial legisla- 
 tion of this state, and the court which has made it 
 the law should furnish the public and the profession 
 with a more specific bill of particulars, or at least so 
 define the definition as to make it intelligible to trial 
 courts and juries. 
 
 The objections taken by the court to. the testimony 
 of the witness as to what was considered a safe dis- 
 tance to retire from the track when trains were pass- 
 ing, and to that showing the roadmaster had given to 
 those working with Moranda no instructions about 
 getting out of the way of trains, seems unwar- 
 ranted. Though it may be said that when a witness 
 states the distance he considers safe, he gives his own 
 conclusion from the facts instead of the facts them- 
 
THE M0RANDA CASE. 65 
 
 selves, yet the same is true of a witness who states 
 the speed of a passing train, as the court has ruled he 
 may, in C, B. & Q. R. R. Co. v. Johnson, 103 111. 512. In 
 either case it is open to the party aggrieved by such 
 testimony to draw out by cross-examination the facts 
 upon which the conclusion is based. To require the 
 facts to be stated in the first instance and leave the 
 conclusions to be drawn by the jury would only tend 
 to confuse them and to needlessly protract the trial. 
 
 It may have been improper to permit the work- 
 men to testify that the roadmaster had given them 
 no directions, and yet that is by no means clear. At 
 all events some discretion should be vested in the trial 
 judge with respect to the admission of evidence, and 
 unless that discretion has been grossly abused a judg- 
 ment ought not to be reversed. If a judgment is to be 
 reversed for every difference of opinion between the 
 trial and appellate judges and the supreme court, trial 
 by jury might as well be abandoned. 
 
 It is needless to .discuss this case further, though 
 much more might with propriety be said. The case 
 is one which forcibly illustrates some of the defects in 
 our judicial system. The opinion of the court does 
 not give the date of Moranda's death, but it is reasona- 
 ble to infer it occurred at least seven years ago. He 
 was evidently a poor man. The suit to recover dam- 
 ages for the injuries resulting in his death is prosecuted 
 by his widow, as administratrix, for her own benefit 
 and for that of her children. The first judgment in her 
 favor was reversed in 1880, on the sole ground of sup- 
 posed errors of law only affecting the question of the 
 amount of damages to be awarded, — errors which, 
 as will be shown in a subsequent chapter, the circuit 
 judge was fully justified in committing by previous 
 decisions of the supreme court. The opinion of the 
 supreme court was an elaborate one, covering twenty- 
 
66 RAILROAD CASES REVIEWED. 
 
 four pages of print, and was intended, no doubt, 
 as a guide to the circuit court in retrying the cause. 
 It is believed no intelligent lawyer could read that 
 opinion without arriving at the conclusion that the 
 court decided, and intended to decide, that a track- 
 repairer and the fireman of a passing express train 
 were not fellow-servants. The last trial of the cause 
 was had before one of the judges of the Appellate Court 
 of the First District, who is conceded to be one of the 
 ablest judges of the state. The judgment rendered by 
 him was, after careful consideration, approved by an 
 able appellate court, and, after such approval, was, as 
 the first one had been, reversed by the supreme court 
 because of alleged blunders of the circuit judge, which 
 occurred, not by reason of any lack of learning or skill 
 on his part, but solely by reason of his inability to fore- 
 see what the supreme court might do, — a matter which, 
 to say the least, is extremely difficult. 
 
 Thus, seven years after her husband's death, this 
 poor woman and her family are compelled to submit 
 the case for the third time to a circuit court and a jury, 
 and to realize that two trials by jury, one in the appel- 
 late and two in the supreme court, have only sufficed 
 to determine that, whatever may have been the rule 
 formerly, it is now contrary to law to permit a witness 
 to testify that a widow and children had no other 
 means of support than the daily earnings of the de- 
 ceased, or what the witness considered a safe distance 
 to retire from the track when trains are passing, or 
 that a roadmaster gave no directions to those working 
 with the deceased about getting out of the way of trains, 
 and that it is likewise contrary to law for a judge to 
 tell a jury that a track-repairer and the fireman and 
 engineer of a passing express train are not fellow-ser- 
 vants. Though there has been brought before the 
 highest court of the state all the evidence introduced 
 
THE MORANDA CASE. 67 
 
 upon two trials of the cause, we search the opinions of 
 that tribunal in vain for a single word upon the merits 
 of the litigation. Yet, when stripped of the meshes of 
 technicality with which the case has been surrounded, 
 we find it involves simply the question whether Mo- 
 randa and the fireman were so consociated in their 
 ordinary duties that they could exercise an influence 
 over each other promotive of proper caution, and if 
 not, whether Moranda's death was the result of his 
 own fault, or of the fault of the fireman. 
 
 What ground is there, then, for supposing that any 
 judgment that might be rendered in the case will be 
 sustained? If an able circuit judge, with an opinion of 
 twenty-four pages elaborately discussing the doctrine 
 of fellow-servants to guide him, is so misled by it as to 
 commit what the supreme court hold to be a blunder 
 in instructing the jury as to the effect of that doc- 
 trine, why should it be expected that another circuit 
 judge will be any more successful in construing the 
 last opinion or in properly deciding the new questions 
 which the ingenuity of counsel will enable them to 
 spring upon him on the trial ? There is and can be 
 nothing in the history of this, or of the other cases 
 before discussed, upon which to build any such hope. 
 
 It would indeed be refreshing if we could occa- 
 sionally find in our reports an opinion like that deliv- 
 ered by Mr. Justice Chalmers, in New Orleans R. R. 
 Co. v. Burke, 53 Miss. 200, in which, among other 
 things, he says : 
 
 " Why should a verdict he set aside which is correct, because 
 erroneous principles of law have been announced to the jury? 
 The object of a jury trial being to do justice between the par- 
 ties, the annulment of a verdict, where this has been accom- 
 plished, on account of mistakes and misdirections on the part of 
 the court, would seem akin to the criticism which censured a 
 celebrated commander because he persisted in winning victories 
 
68 RAILROAD CASES REVIEWED. 
 
 in violation of the rules of strategy. While it was improper 
 for the court to instruct the jury that it was their duty to inflict 
 punitory damages, yet where the facts fully warrant their impo- 
 sition, ttie verdict must he referred to the facts which made it 
 right, rather than the instructions which would make it wrong." 
 
 Had the supreme court, in the Moranda Case, re- 
 ferred the verdict to the facts which made it right, 
 rather than to the instruction which made it wrong, 
 they would have affirmed the judgment, as they had 
 affirmed other judgments when the relation between 
 the servants was the same. 
 
 The great trouble with our system of administering 
 justice is, that it is made up of nine parts of strategy 
 to one of justice. This makes the practice of the law 
 very interesting and entertaining to lawyers, judges 
 and railroad companies, but it furnishes little comfort 
 to the poor widow of a track-repairer when engaged 
 in a contest with a wealthy and powerful corporation. 
 
 THE DOUGHERTY CASE. 
 
 This was also an appeal from the Appellate Court 
 of the Second District. The suit was brought to re- 
 cover from the railroad company for causing the death 
 of plaintiff's intestate, who was killed at a street cross- 
 ing in the city of Ottawa on the 7th day of Septem- 
 ber, 1881, by a collision with a passenger train. The 
 first trial of the cause resulted in a verdict and judg- 
 ment for $4,000 for the plaintiff, which judgment was 
 reversed by the • appellate court, their opinion being 
 reported in 12 Bradwell 181. The reversal, as that 
 opinion will show, was based upon two grounds : first, 
 the admission in evidence of an ordinance of the city 
 of Ottawa granting the railroad company the right to 
 occupy certain streets of the city with its track, and 
 limiting the speed of trains to five miles an hour; and 
 
THE DOUGHERTY CASE. 69 
 
 second, the giving of the two following instructions for 
 the plaintiff : 
 
 " 2. Negligence is a want of ordinary eare, and ordinary 
 care, as applicable to this case, is such care as men of ordinary 
 sense and prudence are accustomed to exercise in affairs of their 
 own of the same importance and risk." 
 
 " 6. The jury are further instructed that, though they 
 may believe from the evidence that Bernard Dougherty was 
 guilty of negligence in approaching and attempting to cross the 
 track on the occasion in question; yet, if they further find from 
 the evidence that the railroad company was also guilty of negli- 
 gence, and that Dougherty's death was caused thereby, and they 
 further find from the evidence that Dougherty's negligence was 
 slight and that of the railroad company gross, in comparison 
 with each other, then such negligence on the part of Dougherty 
 will not prevent his administratrix from recovering damages in 
 this suit." 
 
 The opinion of the appellate court consisted, for 
 the most part, of an argument to show that these 
 instructions were correct according to the decisions of 
 the supreme court, prior to C, B. & Q. E. R. Co. v. 
 Johnson, 103 111. 512, as the appellate court understood 
 them, but incorrect according to the doctrine an- 
 nounced in that case, and therefore required a rever- 
 sal of the judgment. 
 
 The second trial of the cause in the circuit court 
 resulted in a verdict and judgment of $5,000 for the 
 plaintiff, and this judgment the appellate court affirmed. 
 On behalf of the plaintiff the trial court gave but 
 one instruction relating to the degree of care required 
 of the respective parties, while the defendant had the 
 benefit of twelve on the same subject. 
 
 The cause was argued orally on behalf of both par- 
 ties in the supreme court before five of the seven 
 judges, and the opinion of that court (110 111. 521), as 
 delivered by Mr. Justice Craig, who did not sit during 
 the argument, was substantially as follows : 
 
70 RAILROAD CASES REVIEWED. 
 
 "This was an action brought by Bridget Dougherty, 
 administratrix of the estate of Bernard Dougherty, deceased, 
 against the Chicago, Burlington & Quincy Railroad Company, 
 to recover damages for the death of Bernard Dougherty, who 
 was killed while attempting to cross the railroad with a team 
 and wagon at the crossing where Columbus street crosses the 
 railroad track, in the north part of Ottawa, on the 7th day of 
 September, 1881. The declaration charges the defendant with 
 a want of ordinary care; first, in not ringing a bell or sounding 
 a whistle; second, in running at too great a rate of speed; and 
 third, in failing to station a flagman at the crossing where the 
 deceased was killed. A trial of the cause before a jury resulted in 
 a verdict and judgment in favor of the plaintiff f o^ $5,000, which 
 was affirmed in the appellate court, and the railroad company 
 appealed from the judgment of the appellate court. 
 
 " It was urged in the appellate court with much earnest- 
 ness that the verdict of the jury was against the weight of evi- 
 dence; but that question does not arise here, as the decision of 
 the appellate court is final on controverted questions of fact. It 
 was also insisted that the court erred in the instructions to the 
 jury. The first instruction given for the plaintiff, to which 
 exception was taken, is as follows : 
 
 " ' 1. If the jury believe, from the evidence in this case, 
 that on or about the 7th day of September, a.d. 1881, Bernard 
 Dougherty was killed by a passenger train of defendant, at the 
 point where the defendant's railroad crosses Columbus street in 
 the city of Ottawa; that he left him surviving Bridget Dough- 
 erty as his widow, and Thomas Dougherty and Elizabeth 
 Dougherty as his only heirs-at-law; that said Dougherty, during 
 all the time that he was driving toward said railroad crossing 
 and attempting to pass over the same, and until his death, exer- 
 cised ordinary care to ascertain whether said train was approach- 
 ing said crossing and to avoid being injured by said train; 'that 
 said defendant drove said train over said crossing at a reckless, 
 dangerous and improper rate of speed, or failed to give such 
 signals of the approach of said train as to enable Dougherty to 
 ascertain the approach of said train and avoid being injured by it 
 by the exercise of ordinary care; that in so driving said train or 
 
THE DOUGHERTY CASE. 71 
 
 in so failing to give such signals said defendant was guilty of a 
 want of ordinary care, and that such want of ordinary care was 
 the direct cause of Dougherty's death, and that his death was 
 not the result of any want of ordinary care on his own part, 
 then and in such case the jury should find a verdict in favor of 
 the plaintiff.' 
 
 "Section 43, chapter 114, of the Revised Statutes of 3874, 
 provides every railroad corporation shall cause a bell of at 
 least thirty pounds weight and a steam whistle to be placed and 
 kept on each locomotive engine, and shall cause the same to be 
 rung or whistled by the engineer or fireman at the distance of 
 at-least eighty rods from the place where the railroad crosses or 
 intersects any public highway, and shall be kept ringing or 
 whistling until such highway is reached. 
 
 " In the third count of the declaration it was averred that 
 defendant failed to keep a bell of thirty pounds weight to be 
 rung and kept ringing or a steam whistle to be in like manner 
 sounded for the. distance of eighty rods until the said crossing 
 was reached by the locomotive.. This averment was denied by 
 the defendant's plea, and hence an issue was presented by the 
 pleadings for the jury to pass upon and determine from the evi- 
 dence which might be introduced bearing upon this branch of 
 the case. In support of the averment of the declaration the 
 plaintiff called witnesses who in substance testified that they 
 did not hear the bell or whistle, although near enough the train 
 to hear had the one been rung or the other blown. On the 
 other hand, the defendant proved by the fireman and engineer 
 the size of the bell, its character and condition, that the bell 
 was rung and whistle sounded as required by the statute. Both 
 by the pleadings and the evidence an issue was presented whether 
 proper signals of the approach of the train had been given by 
 the railroad company before the crossing was reached. 
 
 "Under the issue thus presented it was a matter of grave 1 
 importance that the law should be accurately given to the jury 
 in order that they might, reach a correct conclusion and thus 
 mete out justice and right between the two contending parties. 
 It will be observed that the statute heretofore cited requires a 
 bell of at least thirty pounds weight on the engine, to be rung 
 
72 RAILROAD CASES REVIEWED. 
 
 at the distance of at least eighty rods before a public highway 
 is reached, and shall be kept ringing until the highway is 
 reached, or a steam whistle shall be sounded in like manner 
 as a bell is required to be rung, but the statute does not require 
 a bell to be rung or a whistle sounded in such a manner as will 
 absolutely give notice to travelers of the approach of the train. 
 The act is to be done in a certain specified manner, and when 
 that is done the railroad company has discharged the duty im- 
 posed by law, whether the signal given is heard or not. But the 
 instruction declares that the railroad shall be liable if it ' failed 
 to give such signals of the approach of said train as to enable 
 Dougherty to ascertain the approach of said train and avoid 
 being injured by the exercise of ordinary care.' This require- 
 ment is not imposed by the statute, and it was error to direct 
 the jury that defendant was bound to do more than the statute 
 had imposed upon it. Under this instruction the jury may 
 have found from the evidence that the defendant rang the bell 
 as required by the statute, and yet, unless the sound of the bell 
 was such as to attract the attention of Dougherty and enable 
 him to ascertain that the train was approaching, the railroad 
 company would be liable. The statute has never, so far as we 
 are advised, received such a construction. Indeed, in The Peoria, 
 Pekin & Jacksonville Railroad Co. v. Siltman, 67 111. 72, an in- 
 struction in almost the identical language was condemned. See 
 also C. & A. R. R. Co. v. Robinson, 106 111. 142. If the railroad 
 company had such a bell on the engine as the statute requires, 
 and it was rung in the manner required, then, so far as giving 
 signals is concerned, no blame can be attached to the company, 
 whether the signals were observed or heeded by Dougherty or 
 not. We think the instruction was»erroneous, and that, too, in 
 a vital point in the case, and for this reason the judgment will 
 be reversed. 
 
 " Other questions have been raised and argued by appellant's 
 counsel, but we do not think it necessary to remark upon them 
 here. The point indicated is decisive of the judgment, and the 
 other questions argued will not be likely to arise on another 
 trial, and hence it is not necessary to consume time in the dis- 
 cussion of them here." 
 
THE DOUGHERTY CASE. 73 
 
 From this opinion Mr. Justice Mulkey dissented in 
 the following language : 
 
 " I do not concur in the decision of this case. The instruc- 
 tion complained of, in my judgment, is not obnoxious to the 
 objection urged against it. But, conceding it is, manifestly it 
 could not have materially affected the result so far as the find- 
 ing of the jury is concerned. The principle is well settled by a 
 long line of decisions that this court will not reverse for a mere 
 formal error that could not have misled the jury." 
 
 It is not, for obvious reasons, proposed to criticise 
 or comment upon this opinion here. Yet, as a peti- 
 tion for a rehearing was duly filed in the .cause, it is 
 deemed not improper to present sufficient extracts 
 therefrom to enable the reader to understand the 
 points made by counsel and considered by the court. 
 The following extracts from the petition for a rehear- 
 ing will sufficiently express the points made : 
 
 " We shall endeavor to show that the opinion of the majority 
 of the court is erroneous in the following particulars: 
 
 " First, it assumes that the only issue presented by the plead- 
 ings and evidence with respect to signals is, whether the defend- 
 ant complied with the statute requiring the ringing of the bell 
 or the sounding of the whistle. 
 
 "Second, it incorrectly states that the instruction informed 
 the jury that the defendant would 'be liable if it failed to 
 give such signals of the approach of the train as to enable 
 Dougherty to ascertain the approach of said train and avoid 
 being injured by the exercise of ordinary care.' 
 
 "Third, it incorrectly states that the instruction is 'in 
 almost the identical language ' of one condemned by this court in 
 P. P. & J. R. R. Co. v. Siltman, 67 111. 72, whereas it should 
 have said that the language of the instruction criticised is almost 
 precisely identical with that repeatedly employed in the opinions 
 of this court. 
 
 "Fourth, it assumes that a railroad company cannot be re- 
 quired to give other signals than the ringing of the bell or the 
 
74 RAILROAD CASES REVIEWED. 
 
 sounding of the whistle, and ignores the oft-reiterated doctrine 
 of this court that a statute imposing upon a railroad company 
 the duty of giving certain signals, or of running at a limited 
 speed in certain places, in no manner lessens its common law 
 obligations to so regulate the speed of its trains and give such 
 signals of their approach as, under all the circumstances, may 
 be reasonably necessary to avoid injury to others who are exer- 
 cising proper care." 
 
 With respect to the first point, the argument 
 made was substantially as follows: 
 
 " The first count of the declaration charges the defendant 
 with careless management of the train, resulting in its colliding 
 with and killing Dougherty. 
 
 " The second count charges the defendant with a failure to 
 ring the bell or sound the whistle as required by statute. Under 
 this count, taken by itself alone, the only question at issue was, 
 whether the defendant's train had a bell or whistle of the requi- 
 site weight and character, which was rung or blown the requi- 
 site distance, as required by the statute. 
 
 " The third count charges the defendant with a negligent 
 failure to station a flagman at the crossing or to provide other 
 sufficient means of warning travelers of the approach of the train. 
 Under this count the issue was presented to the jury whether, 
 considering the character of the crossing and all the facts and 
 circumstances of the case, ordinary care did not require the defend- 
 ant to give signals by a flagman or otherwise, in addition to the 
 ringing of the bell and sounding of the whistle. 
 
 " The fourth count sets forth the ordinance of the city of 
 Ottawa, and charges the defendant with running the train at too 
 great a rate of speed, with a failure to ring the bell or sound 
 the whistle, and with other omissions. 
 
 " It is scarcely possible to conceive any omission of a statu- 
 tory or common law duty imposed upon defendant for the pro- 
 tection of a traveler on the highway which cannot properly be 
 proven under a declaration thus framed. 
 
 "These charges made in the declaration are divisible into 
 two general classes— -first, those which relate to the speed of the 
 
THE DOUGHERTY CASE. 75 
 
 train; and second, those which relate to the signals or warnings 
 of the approach of the train. It is only the second class which 
 it is necessary to discuss in this petition. 
 
 " It ought to be unnecessary to say that all of the omissions 
 , belonging to the second class may be properly described by the 
 general term 'failure to give proper signals.' To sound the 
 whistle or ring the bell is to give signals. To station a flagman 
 at the crossing is to give signals. To provide other sufficient 
 means of warning travelers is to give other sufficient signals. In 
 C. & A. Railroad Co. v. Gretzner, 46 111. 85, the court, per 
 Breese, J., use the following expressions: ' Even if the flagman 
 * * * gave the requisite signals, 1 'he was at his post making 
 the proper signals,' 'it is enough to require signals to be displayed,' 
 'the plaintiff was driving without looking for signals,' and 
 thus the court recognized the term as applicable to the warnings 
 of the flagman. To apply the term ' signals ' to sounds alone, 
 such as the ringing of the bell and sounding of the whistle, 
 would exclude from the signification of the term the far larger 
 portion of the instrumentalities used as warnings of danger. 
 To hold that a flag in the hands of a flagman, or a red light, 
 or a wave of the hand, or the shooting of a sky-rocket, was 
 not a signal would, as all must concede, manifest an entire 
 misapprehension of one of the simplest terms in the English 
 language. Yet the opinion filed in this case shows that the 
 court has failed to apprehend that the term ' signals ' as used in 
 the instruction in question included, and was intended to include, 
 the flagman or other sufficient means of warning travelers, as 
 well as the ringing of the bell and sounding of the whistle, and 
 the instruction was held erroneous simply because it was assumed 
 by the court that the only omission with respect to signals charged 
 in the declaration and intended to be covered by the instruction 
 was the failure of defendant to perform the statutory duty of 
 ringing the bell or sounding the whistle for a distance of eighty 
 rods east of the crossing." 
 
 With reference to the second point, the argument 
 made was substantially as follows: 
 
 " It is said in the opinion of the court that ' the instruction 
 declares that the railroad company is liable if it failed to give 
 
76 RAILROAD CASES REVIEWED. 
 
 such signals of the approach of said train as to enable Dougherty 
 to ascertain the approach of said train and avoid being injured 
 by the exercise of ordinary care.' 
 
 "Were this statement correct, we would readily concede the 
 instruction would be erroneous, for neither the common law 
 nor the statute imposes upon the company the absolute duty of 
 giving such signals, but only requires it to use ordinary care 
 to do so. The instruction tells the jury that before they can 
 find for the plaintiff they must believe from the evidence that 
 'in so failing to give such signals said defendant was guilty of 
 a want of ordinary care, and that such want of ordinary care was 
 the direct cause of Dougherty's death, and that his death was 
 not the result of any want of ordinary care on his own part.' 
 
 " The instruction did not, as is supposed by the court, direct 
 the jury that the defendant was bound to do more than the 
 statute imposed upon it, but it told the jury, in effect, that it 
 was for them to determine from the evidence what signals ordi- 
 nary care on the part of the defendant required it to give. If, as 
 this court has repeatedly declared, negligence is a question of 
 fact for the jury and not a question of law for the court, this 
 was entirely proper." 
 
 With reference to the third point, the argument 
 made was substantially as follows: 
 
 " There is no point of similarity whatever between the instruc- 
 tion in question and the one in P. P. & J. Railroad Co. v. Siltman, 
 67 111. 72. Much less can it be fairly claimed that one is 'in 
 almost the identical language ' of the other. That all doubt on 
 this point may be solved we place them side by side: 
 
 Siltman Case. Dougherty Case. 
 
 Ml- 
 
 ' 1. On the part of the plain- " ' 1. If the jury believe from 
 tiff, the jury are instructed the evidence that on, etc., Ber- 
 that railroad companies are nard Dougherty was killed by 
 bound, in crossing public high- a passenger train of the de- 
 ways, to have a bell of at least fendant, at the point where 
 thirty pounds weight, or a the defendant's railroad crosses 
 steam whistle, placed on each Columbus street in the city of 
 locomotive engine, which shall Ottawa ; that he left him sur- 
 
THE DOUGHERTY CASE. 
 
 77 
 
 be rung or whistled at the dis- 
 tance of at least eighty rods 
 from the place where the rail- 
 road crosses any public street 
 or highway, and which shall 
 be kept ringing or whistling 
 until such street or highway is 
 reached, so as to apprise persons 
 of their approach.' 
 
 Tiving Bridget Dougherty, etc., 
 etc. ; that said Dougherty dur- 
 ing all the time that he was 
 driving toward said railroad 
 crossing and attempting to pass 
 over the same and until his 
 death exercised ordinary care to 
 ascertain whether said train 
 was approaching said crossing, 
 and to avoid being injured by 
 said train; that said defendant 
 drove said train over said cross- 
 ing at a reckless, dangerous and 
 improper rate of speed, or failed 
 to give such signals of the 
 approach of said train as to en- 
 able Dougherty to ascertain the 
 approach of said train and avoid 
 being injured by it by the 
 exercise of ordinary care; that 
 in so driving said train or in so 
 failing to give such signals said 
 defendant was guilty of a want 
 of ordinary care, and that such 
 want of ordinary care was the 
 direct cause of Dougherty's 
 death, and that his death was 
 not the result of any want of 
 ordinary care on his own part; 
 then and in such case the jury 
 should find a verdict in favor 
 of the plaintiff.' 
 
 "Not only are the two instructions radically different in 
 meaning, but the case cited and the case at bar are entirely 
 unlike, as regards the pleadings and evidence, in the following 
 particulars: 
 
 "1. In the Siltman Case, as declared in the statement of 
 facts, ' the negligence charged was a failure to ring a bell or 
 
78 EAILKOAD CASES KEVIEWED. 
 
 sound a whistle eighty rods before the train reached the cross- 
 ing, and to continue such warning until the crossing was 
 reached and in not using proper care and effort to stop the train 
 before the collision.' Hence the only issue as to signals was, 
 whether the railroad company complied with the statute. In 
 the Dougherty case the negligence charged is a failure to ring 
 the .bell or sound the whistle as required by statute, and a failure 
 to station a flagman at the crossing or provide other sufficient 
 means of warning of the approach of the train. Hence the 
 issues are, whether the company gave the statutory signals and, 
 if it did, whether under all the circumstances of the case or- 
 dinary care did not require it to give additional signals by 
 flagman or otherwise. 
 
 "2. In the Siltman Case the injury complained of occurred 
 at a country road crossing, where the question of the necessity 
 of a flagman was not and could not properly have been sub- 
 mitted to the jury. In the Dougherty Case the injury com- 
 plained of occurred within the limits of a populous city at a 
 street crossing admitted to be dangerous, and one at which the 
 company has stationed a flagman ever since the accident in 
 question, and hence it was proper to submit to the jury the 
 question whether ordinary care and a due regard for the safety 
 of others did not require the company to do more than give 
 the statutory signals, either by providing a flagman or other 
 sufficient means of warning. 
 
 " 3. In the Siltman Case the instruction as construed by 
 the court required the railroad company to so ring the bell that 
 persons would be apprised of danger, whether they exercised 
 proper care or not. But in the Dougherty Case the instruction 
 only required the defendant to use ordinary care to give such 
 signals by bell, whistle, flagman or otherwise, as would enable 
 Dougherty to save his life by reasonable care. 
 
 " Having thus shown that the language of the instruction in 
 the case at bar is far from being identical with that of the in- 
 struction in the case cited, we shall now endeavor to show it is 
 almost precisely identical with that repeatedly employed by this 
 court in its opinions. 
 
 "In the case of C. & R. I. R. R. Co. v. Still, 19 111. 508, this 
 court, per Walker, J., say: 'Railroad companies, in operating 
 
THE DOUGHERTY CASE. 79 
 
 their cars, must be held, in crossing public highways and thor- 
 oughfares, to so regulate their speed and to give such signals to 
 persons passing that all may be apprised of the danger of cross- 
 ing the railroad track ; and they should also keep a sharp look- 
 out, so as to see, and, as far as possible, prevent injury to others 
 exercising their legal rights. A failure in any of these duties, 
 on their part, should render them liable for injuries inflicted and 
 wrongs resulting from its omission.' 
 
 " In the case of C, B. & Q. E. E. Co. v. Cauffman, 38 111. 428, 
 tne court, per Walker, J., say: ' In the case of the C. bz E. I. E. 
 E. Co. v. Still, 19 111. 499, the rule was announced that railroad 
 companies were bound, in crossing public highways and thor- 
 oughfares, to so regulate the speed of trains and to give such 
 signals as to apprise persons of their approach. And that it 
 was the duty of those having charge of the train to keep a 
 lookout so as to foresee and, as far as possible, to prevent injury 
 to persons exercising their legal rights in traveling upon the 
 highway. It was also said that a failure to perform any of 
 these duties should render them liable for injuries inflicted.' 
 And the court nowhere expresses any disapproval of the rule. 
 
 " In the case of E., E. I. & St. L. E. E. Co. v. Hillmer, 72 111. 
 240, the court, per Craig, J., say : ' It was said by this court, in 
 the case of C. & E. I. E. E. Co. v. Still, 19 111. 499, and the same 
 doctrine has been reaffirmed in subsequent cases, that railroad 
 companies, in operating their cars, must be held, in crossing 
 public highways, to so regulate the speed of their trains, and to 
 give such signals to persons passing, that all may be apprised of 
 the danger of crossing the railroad track. A failure in any of 
 these duties, on their part, should render them liable for injuries 
 inflicted and for wrongs resulting from its omissions. 1 
 
 "No child ever bore a stronger resemblance to its father 
 than the language of the instruction does to the language of 
 these opinions. ' Eailroad companies,' say the court, ' must be 
 held to give such signals to persons passing that all may be ap- 
 prised of the danger of crossing the railroad track.' ' Eailroad 
 companies,' says the instruction, in its legal effect, ' must be held 
 to exercise ordinary care to give such signals to persons passing 
 that all who exercise proper care may be apprised of the danger 
 of crossing the railroad track.' 
 
80 RAILROAD CASES REVIEWED. 
 
 " Still's case was decided in 1858, Cauffinan's case in 1865, 
 and Hillmer's case in 1874. The language thus used cannot be 
 claimed to he careless and inaccurate expressions of the court 
 which circuit judges and members of the profession have no 
 right to rely upon. One answer to such a claim is, that 
 language^ so often repeated cannot be regarded as carelessly 
 expressed. Another and a better answer is, that the doctrine 
 announced is self -evidently sound. 
 
 "Railroad companies are clothed by the legislature with 
 special privileges. They are permitted to operate powerful and 
 dangerous machines across public highways and thoroughfares 
 used and traveled by people who have an equal right with them 
 to protection from injury. The machines thus operated are of 
 such a character as to injure or destroy everything with which 
 they collide. In consideration of the privileges conferred upon 
 them, these companies are bound to adopt all reasonable precau- 
 tions that may be necessary to avoid injury to those who are in 
 the exercise of their legal rights and exercising proper care. To 
 say that they might omit any reasonable precaution would be 
 subversive of fundamental principles and to deny to others the 
 equal protection of the law. Among the precautions which by 
 all courts and in all civilized countries are recognized as reason- 
 ably necessary to avoid injury from passing trains are the ring- 
 ing of the bell, the blowing of the whistle, the waving of a flag 
 by a flagman and the closing of gates. Whether one, or two, 
 or all of these precautions or signals of warning are reasonably 
 necessary is a question of fact to be submitted to a jury in each 
 particular case, under proper restrictions and with proper in- 
 structions. Such is the effect of the declaration of this court in 
 C. & A. R. R. Co. v. Gretzner, 46 111. 85, where the court, per 
 Breese, J., say : 'Even if the flagman was at his post and gave, 
 the requisite signal, and it could be shown that something more 
 was necessary to be done by the defendants to protect passers-by 
 and shield them from injury, we should hold the defendants 
 would be inexcusable if they did not afford it, unless it should 
 appear the want of it did not contribute to the injury.' In a case 
 relating to a dangerous railway crossing in a populous city, no 
 court ought to undertake to say as a matter of law that the mere 
 ringing of the bell or the blowing of the whistle shall be deemed 
 
THE DOUGHEKTY CASE. • 81 
 
 sufficient. On the contrary, it should be left to the jury to 
 determine whether such signals have been given as are reason- 
 ably necessary under all the circumstances of the case. 
 
 " As we have before shown, the declaration in this case was 
 so framed as. to present to the jury not only the question 
 whether the bell was rung or whistle sounded, but also whether 
 ordinary care did not require other signals to be given. The in- 
 struction under discussion submitted to the jury these questions 
 in almost the identical language of repeated decisions of this 
 court, and it cannot be held bad unless those decisions are 
 unsound." 
 
 With reference to the fourth point, the argument 
 was substantially as follows: 
 
 " It is said in the opinion of the court that ' if the railroad 
 company had such a bell on the engine as the statute requires 
 and it was rung in the manner required, then, so far as giving 
 signals is concerned, no blame can be attached to the company, 
 whether Dougherty heard them or not.' 
 
 " This proposition, when analyzed, means clearly that, no 
 matter what the nature of this crossing may have been, no 
 matter how impossible for a traveler to see or hear an approach- 
 ing train even when its bell was rung, no matter how populous 
 the locality, no matter how dangerous the crossing may have 
 been to the public, yet under no circumstances could the de- 
 fendant be required to station a flagman at the crossing or give 
 any other sufficient signals or warnings of the approach of its 
 trains. 
 
 " We cannot believe that the court has used this language 
 advisedly, for it is the first time that any court of last resort has 
 attempted to deprive the jury of the right to determine upon the 
 necessity of a flagman at a railway crossing in a populous city, 
 when that crossing is admitted by the railroad company to be 
 dangerous. Besides, such a statement amounts to a flat contra- 
 diction of the repeated declarations of this and other courts that 
 a statute imposing upon a railroad company the duty of giving 
 certain signals, or of running at a limited speed in certain places, 
 in no manner lessens its common law obligations to so regulate 
 
82 • RAILROAD CASES REVIEWED. 
 
 the speed of its trains and give such signals of their approach as 
 may be reasonably necessary to avoid injury to others who are 
 exercising proper care." 
 
 In support of the argument upon this point, the 
 petition cited the following authorities: 
 
 Shearman & Redfield on Negligence, section 484, 
 where it is said: 
 
 "Statutes of this kind are certainly not the exclusive 
 measure of the duties of a railroad company in such situations; 
 and it is not necessarily absolved from blame by showing that 
 it complied with all statutory regulations, since, while doing so, 
 it may have neglected its common law duties." 
 
 The I. & St. L. Railroad Co. v. Stables, 62 111. 313, 
 where Mr. Justice Walker, in delivering the opinion 
 of the court, says: 
 
 " A mere compliance with the requirements of the statute, 
 in sounding a whistle or in ringing a bell, does not ■ authorize 
 those having charge and control of these mighty forces to omit 
 other reasonable and necessary precautions, and to destroy life, 
 or inflict great bodily injury. Because the statute has imposed 
 specific duties, it does not follow that the employes of these 
 companies are released from the dictates of humanity or the 
 common legal duty of regarding the rights of others." 
 
 With respect to this last case, the following com- 
 ments were made in the petition: 
 
 " Here again we have an emphatic declaration by this court 
 that the statute requiring the ringing of the bell or the sounding 
 of the whistle was not to be regarded as absolving the railroad 
 company from the duty of adopting all other reasonable and 
 necessary precautions. In other words, the court there declared 
 the law to be that the railroad company was bound, in cases 
 where the ringing of the bell or the sounding of the whistle 
 would be insufficient to prevent injury to others, to adopt such 
 other reasonable precautions as might be necessary. And in 
 Gretzner's Case, 46 111. 85, as we have before seen, the court 
 
THE DOUGHERTY CASE. 83 
 
 went even farther, and declared that, even if signals were given 
 by a flagman, it would not relieve the railroad company from 
 liability, if it could be shown that something mere was necessary 
 to be done to protect passers by." 
 
 There was also cited Wabash Railway Co. v. Hencks, 
 91 111. 406, where there was an ordinance limiting the 
 speed of trains to ten miles an hour, and the court, per 
 Walker, J., say: 
 
 " It is urged that the law has licensed these trains to run at 
 a rate of speed not exceeding ten miles an hour in cities. This 
 is clearly a misapprehension. The law prohibits their running at 
 a greater rate of speed. But if, in some places in a city, that 
 would be a dangerous rate, it would be negligence to run at that 
 rate. They must conform the rate to the safety of the public at 
 all places in the city where persons have an equal right to travel 
 as the company to run their trains. The legislature had no in- 
 tention to permit engineers to run at such a rate of speed, where 
 it would necessarily, or even probably, produce the death of in- 
 dividuals." 
 
 Upon this case the following comments were made: 
 
 " Now, when counsel for appellant in the case at bar argued 
 that the statute requiring the ringing of the bell or the sounding 
 of the whistle authorized the railroad company to run their trains 
 at all times and places with no other signals, why did not the 
 court say: ' It is urged that the law has licensed these trains to 
 run without giving other signals of their approach than the 
 ringing of the bell or the sounding of the whistle. This is 
 clearly a misapprehension. The law prohibits their running 
 without their giving those signals. But if in some places in a 
 city it would be dangerous to run with no other signals, it would 
 be negligence to so run. They must conform their signals and 
 other precautions to the safety of the public at all places in the 
 city where persons have an equal right to travel as the com- 
 pany to run their trains. The legislature had no intention to 
 permit trains to run without other signals or precautions, when 
 it would necessarily, or even probably, produce the death of 
 individuals.' " 
 
84 RAILROAD CASES REVIEWED. 
 
 In concluding the argument upon this point, it was 
 said: 
 
 " Numerous other decisions of this court might be cited in 
 support of our position, but to repeat all that the court has said 
 on the subject would swell this petition to unreasonable propor- 
 tions. Suffice it to say, in addition to what we have already said, 
 that the court has never since its organization denied the 
 doctrine that a statute imposing upon a railroad company 
 specific duties in no manner relieves it of the performance of 
 such other duties as are reasonably necessary to avoid injury to 
 others. Individuals are bound by law to use reasonable and 
 ordinary care to avoid injuring others, and what is reasonable 
 and ordinary care is a question of fact for a jury to determine, 
 and the same rule of law should apply to railroad companies, 
 notwithstanding the legislature has, for the protection of the 
 public, imposed certain specific duties upon them which it was 
 not necessary to impose upon individuals." 
 
 But the court denied the petition for a rehearing 
 after the opinion of the majority had been modified 
 by adding thereto the following: 
 
 " Nothing herein said, however, has any reference whatever 
 to the supposed liability of the railroad company for a failure to 
 station a flagman at the crossing where the accident occurred." 
 
 What the opinion of the majority of the court in 
 this case means, as thus modified, and whether it does 
 justice between the parties litigant and to the public, 
 will be left to the reader to determine without further 
 comments. 
 
 Such are a few of the leading features of the cases 
 decided by the supreme court in which these four 
 railroad companies are appellants. In selecting the 
 cases against them, the fact has not been overlooked 
 that, if a list of all the cases against all the railroad 
 companies of the state were made up, the proportion 
 
RAILROAB CASES REVIEWED. 85 
 
 of reversals to affirmances, though manifestly very 
 much larger than is consistent with a reasonably 
 perfect system of administering justice, would appear 
 to be somewhat less than that in the cases of the 
 companies named, and that, since the establishment 
 of the appellate courts, a majority of the judgments of 
 over $1,000 each, affirmed by them, in the cases of the 
 character in question, have been amrme"d by the 
 supreme court. But the Chicago & Northwestern, 
 the Illinois Central, the Chicago, Burlington & Quincy, 
 and the Chicago, Rock Island & Pacific Railroad Com- 
 panies, undoubtedly have more power and wealth than 
 all the other railroad corporations of the state com- 
 bined. They are abundantly able to secure the most 
 competent and careful employes and the most approved 
 machinery and appliances for the operation of their 
 roads, to provide gates or station flagmen at every 
 railroad crossing in the cities and villages through 
 which they extend, and at every other crossing where 
 the necessity therefor may exist, and to adopt all 
 other reasonable and necessary precautions to avoid 
 injury to others. They have ample means to pay all 
 claims for damages occasioned by their negligence, or 
 to contest in the courts, by the aid of the most eminent 
 counsel, every claim made against them, and it is by 
 very many asserted to be true that, by the powerful 
 lobby which they employ at Springfield, they are 
 enabled to obstruct all legislation, proper and just 
 though it may be, which they may consider as tending 
 to hinder or embarrass them in their efforts to make 
 enormous profits. On the other hand, the persons by 
 whom suits are brought against them are, for the most 
 part, of limited means, and unable to meet the enor- 
 mous expenses and submit to the tedious delays of 
 litigation, nor can they well afford to submit to injuries 
 without endeavoring to obtain redress therefor. 
 
86 RAILROAD CASES REVIEWED. 
 
 Under these circumstances, when it is sought to ascer- 
 tain the relative standing in our courts of rich and 
 powerful litigants, on the one hand, and those who are 
 poor, on the other, the propriety of selecting, as sub- 
 jects for discussion, the cases above enumerated, can 
 scarcely be questioned. 
 
 Nothing herein contained, however, is to be con- 
 strued as- intended to reflect upon the integrity 
 of the judges of the supreme court, or of any of 
 the other courts of the state. Whatever may be the 
 injustice done to individuals in suits against these 
 powerful corporations, it is not due to any improper 
 motives on the part of judges, but is chiefly attribu- 
 table to improper legislation, vicious methods of 
 trying and disposing of causes in the circuit, appel- 
 late and supreme courts, and the unwarranted com- 
 plaints of railroad lawyers against the popular pre- 
 judice and agrarian tendencies alleged to exist among 
 jurors, by which the judges of the higher courts have 
 been made to believe that a railroad company cannot 
 get justice in a circuit court, and that the more wealthy 
 and powerful such a corporation may be, the less 
 likely it is to receive fair treatment at the hands of a 
 jury. Wherever, therefore, in this or the subsequent 
 chapters of this book, any argument is advanced or 
 statement made to show unjust discrimination, by the 
 supreme or appellate courts, in favor of railroad com- 
 panies, such statement or argument should be con- 
 strued in the light of what is here said. 
 
 The cases thus reviewed furnish the most satisfac- 
 tory evidence that the machinery for the administra- 
 tion of justice is seriously defective. The questions 
 involved in each of them are of the simplest charac- 
 ter, and no species of argument can make them appear 
 otherwise. Plainly stated, the main question at issue 
 in each was, did the plaintiff, or person injured, exer- 
 
railroad cases reviewed. 87 
 
 cise proper care to avoid Deing injured, and, if so, did 
 the defendant exercise proper care to avoid the inflic- 
 tion of the injury. In one case there was the addi- 
 tional question whether a track repairer and a fireman 
 of a passing express train were directly co-operating 
 with each other in the particular business in hand, or 
 whether their usual duties brought them into habitual 
 consociation, so that they might exercise an influence 
 upon each other promotive of proper caution. The 
 results attained may be, in and of themselves, of 
 trifling importance, but they cease to be so when 
 viewed in the light of that provision of our constitu- 
 tion which declares that every person "ought to 
 obtain, by law, right and justice freely and without 
 being obliged to purchase it, completely and without 
 denial, promptly and without delay." If our system 
 of administering justice substantially fulfills these 
 requirements, occasional errors of the court of last 
 resort are of small consequence ; but if, on the con- 
 trary, it is of such a character that, in a particular 
 class of suits brought against the most wealthy and 
 powerful corporations, individuals cannot obtain right 
 and justice freely, and it is incomplete when obtained, 
 must be purchased, and then is only obtainable after 
 long and tedious delays, all must concede that such a 
 system is radically defective. 
 
 In neither of the six cases in question is the deci- 
 sion of the supreme court conclusive of the merits of 
 the litigation. For aught that appears, the plaintiff in 
 each of them will finally succeed in securing a judg- 
 ment that will not be reversed, and, for the purposes 
 of this discussion, it will be assumed that such will be 
 the result. Such was the result in the Frelka Case 
 after two trials by jury, two in the appellate court and < 
 one in the supreme court, and in the Avery Case after 
 three trials by jury, three in the appellate court and 
 
88 RAILROAD CASES REVIEWED. 
 
 one in the supreme court. Assuming, then, that the 
 result will be the same in the other cases, we must 
 arrive at the following conclusions : 
 
 First, that justice is not obtained freely. In the 
 Sykes Case, the Clark Case and the Dougherty Case, we 
 find there have been two trials by jury, two hearings 
 in the appellate court and one in the supreme court, 
 and in the Moranda Case, two trials by jury, one hear- 
 ing in the appellate court and two in the supreme 
 court, in all five solemn judicial investigations in each 
 case in three different tribunals, and yet in not one of 
 these cases has there been a final decision affecting its 
 real merits, and it is evident that, if the merits of 
 either case are finally determined, it will only be after 
 at least three more solemn judicial investigations, one 
 in the circuit, one in the appellate and a final one 
 in the supreme court, and thus it will have re- 
 quired eight trials and hearings in these different 
 courts before the simple question can be determined 
 whether injuries have been inflicted by the fault of 
 these railroad companies, or suffered by the fault of 
 the persons injured. In the Johnson Case and the 
 Warner Case the number of necessary judicial inves- 
 tigations will be only two les"s. 
 
 Second, justice must be purchased. When is jus- 
 tice properly said to be purchased ? Is it only when 
 the party actually pays money to the tribunal that 
 passes upon his rights for the purpose of securing a 
 just decision, or is it also when the machinery for the 
 administration of justice is so defective that the ex- 
 penses of the party who seeks redress for an injury 
 wholly, or almost wholly, absorb the amount of his 
 , final recovery, or perhaps exceed it ? If the former, 
 then no one will contend that justice is ever purchased 
 in this state. But if the latter, it can be made quite 
 
RAILROAD CASES REVIEWED. 89 
 
 clear that justice is purchased, and at a very high 
 price. The costs occasioned by each reversal of a 
 judgment in a case of the class in question, by the 
 appellate or supreme court, amount to from $200 
 to $500. These costs must be paid by the plaintiff or 
 appellee, no matter what the final result of the suit 
 may be, and can never be recovered back though the 
 plaintiff be finally successful in maintaining the suit. 
 In this estimate nothing is allowed for attorneys' fees 
 or any other expenses, excepting costs actually taxed 
 in the appellate and supreme courts. If the plaintiff be 
 a poor brakeman, or the administratrix of a poor farm- 
 er, or of * a track repairer, it may be an impossibility 
 for him or her to advance the necessary amount to 
 pay the costs and other expenses, and, if so, the litiga- 
 tion must be abandoned unless some charitable friend 
 comes to his or her relief. However that may be, the 
 payment of from $400 to $1,000 by the plaintiff to the 
 railroad company to cover expenses incurred by the 
 latter in interposing technical objections to a claim 
 which is finally shown to be just and right, and one 
 the payment of which ought never to have been 
 resisted, seems at first blush to be grossly unjust, and 
 to be nothing if not the purchase of justice. 
 
 Third, the relief obtained is often incomplete. This 
 is especially true in actions brought to recover dam- 
 ages for injuries resulting in death. In all such cases 
 the amount of the recovery is limited by statute to 
 $5,000. Cases often occur in which that amount is 
 wholly inadequate compensation for the pecuniary 
 injuries resulting in the death. Yet a final judgment 
 cannot be obtained in less than from three to eight 
 years, and then can only be for $5,000, and from it 
 must be deducted from $400 to $1,000 costs paid to 
 the railroad company for defending the suit, together 
 
90 RAILROAD CASES REVIEWED. 
 
 with a considerable amount for other expenses and 
 necessary attorneys' fees. 
 
 Fourth, justice is not obtained without long and 
 tedious delays. In the six cases reviewed the final 
 judgments will not be entered in less than from four 
 to ten years after the occurrence of the injuries. 
 This is far from being speedy justice. 
 
 But bad as matters now are, we should perhaps be 
 thankful that they are no worse. That they might be 
 made worse is evident when we carefully consider one 
 peculiar phase of our judicial system. 
 
 As we have before seen, prior to the establishment 
 of our appellate court system, the supreme court 
 reversed about five out of six of the judgments ren- 
 dered by the circuit courts against the four leading 
 railroad companies in the class of cases under discus- 
 sion. What proportion of such judgments have been 
 reversed by the appellate courts since their organiza- 
 tion cannot be ascertained from the reports, since, as 
 a general rule, the opinions in cases where the judg- 
 ments are affirmed are not published. But the bar, 
 who are familiar with the doings of those courts, 
 will bear witness to the truth of the assertion that the 
 proportion of reversals to affirmances has been at least 
 three to one, so far as suits against these four railroad 
 companies are concerned. Our legislature, in its wis- 
 dom, inspired no doubt by the opinions of the supreme 
 court, became convinced that .there was so strong* a 
 presumption of error in the judgments of the circuit 
 court, that it was impossible for an appellate court to 
 make a mistake in reversing any such judgment, 
 though it would be very likely to err in affirming it. 
 Consequently, in providing for appeals from the appel- 
 late to the supreme court, it declared that in actions 
 at law tried by juries only judgments of affirmance or 
 
RAILROAD CASES REVIEWED. 91 
 
 judgments otherwise finally disposing of the litigation 
 should be appealed from. 
 
 If, now, the people in their wisdom should deem it 
 necessary to a perfect system of administering justice, 
 that there should be created a court of errors and 
 appeals to review the judgments of the supreme court, 
 and should likewise permit only judgments of affirm- 
 ance to be appealed from, there is reason to apprehend 
 that the consequence would be substantially as fol- 
 lows: If thirty-six judgments of over $1,000 each should 
 be rendered by the circuit courts against these four rail- 
 road companies, twenty-seven would be reversed and 
 nine affirmed by the appellate courts. Of these nine 
 judgments of affirmance six would be reversed and 
 three affirmed by the supreme court. Of these three 
 affirmed by the latter court, two would be reversed and 
 one affirmed by the court of errors and appeals. Thus 
 we see that a plaintiff, having recovered a judgment 
 of over $1,000 against one of these companies, would 
 stand but one chance in thirty-six of having it finally 
 sustained. 
 
 In view of these probabilities, the propriety of 
 establishing such a court of errors and appeals is, to 
 say the least, questionable. It would be better to let 
 well enough alone ; for, to a poor litigant, one chance 
 in twelve is a little — but, indeed, very little — better 
 than one in thirty-six. But to the railroad companies 
 such a court would be a great blessing, and the wonder 
 is that they have not yet succeeded in having it estab- 
 lished. 
 
 With this preliminary discussion of railroad cases, 
 the reader will be introduced to a doctrine, one pecu- 
 liar phase of which he has already observed, and 
 others, equally peculiar, he must, in order to success- 
 fully try actions for negligence, thoroughly under- 
 stand. 
 
CHAPTER II. 
 
 COMPARATIVE NEGLIGENCE. 
 
 To a thorough understanding of the rule of com- 
 parative negligence, a brief reference is necessary to 
 the doctrine of contributory negligence, as recognized 
 and applied in this state prior to the decision of the 
 Jacobs Case, 20 111. 488, and still prevailing in the 
 courts of nearly all the other states, as well as of Eng- 
 land. Shearman & Eedfield, in their work on Negli- 
 gence, say: 
 
 " § 25. One who is injured by the mere negligence of 
 another cannot recover at law or in equity any compensation for 
 his injury, if he, by his own or his agent's ordinary negligence 
 or willful wrong, proximately contributed to produce the injury 
 of which he complains, so that, but for his concurring and co- 
 operating fault, the injury would not have happened to him, 
 except where the more proximate cause of the injury is the 
 omission of the other party, after becoming aware of the danger 
 to which the former party is exposed, to use a proper degree 
 of care to avoid injuring him. This rule has been held appli- 
 cable to neglect of duties imposed by statute, as well as those 
 imposed only by common law." 
 
 "§ 28. The plaintiffs right to recover is not affected by his 
 having contributed to his injury unless he was in fault in so 
 doing. It is possible for the plaintiff, not only to contribute to, 
 but even to be himself the immediate cause of, his own injury, 
 and yet to recover compensation therefor. If his share in the 
 transaction was innocent and not incautious, it furnishes no 
 excuse for the defendant." 
 
 92 
 
COMPARATIVE NEGLIGENCE. 93 
 
 " § 29. Where the negligence of the plaintiff is relied upon 
 to defeat his recovery, he must have been guilty of at least 
 ordinary negligence. His failure to take unusual care is no 
 defense to the action; while, on the other hand, the plaintiff 
 cannot recover if he used only slight care, when ordinary care 
 would have avoided the injury. This seems to be an invariable 
 rule, because every man is bound, no matter in what he may be 
 engaged, to use ordinary care for his own protection, and no man 
 is ever bound to use more." 
 
 " § 30. Ordinary care, however, as the phrase is here used, 
 implies the use of such watchfulness and precautions as are 
 fairly proportioned to the danger to be avoided, judged by the 
 standard of common prudence and experience. If the danger is 
 remote or slight, the care required to avoid it may be slight. If 
 the danger is near and extraordinary, extraordinary care and 
 vigilance should be used to avoid it, because such would be the 
 natural course of a prudent man." 
 
 " § 36. It is now well settled that the plaintiff may recover 
 notwithstanding his own negligence exposed him to the risk of 
 injury, if the defendant, after becoming aware of the plaintiff's 
 dangfir, failed to use ordinary care to avoid injuring him." 
 
 Assuming that the above quotations contain a rea- 
 sonably accurate statement of the elementary princi- 
 ples of the law of contributory negligence, it follows, 
 first, that no negligence of the party injured will bar 
 a recovery unless it amounts to ordinary negligence, 
 or, in other words, to a want of ordinary care; 
 second, the want of ordinary care will not bar a recov- 
 ery where it appears that, had it been exercised, the 
 injury would nevertheless have occurred; third, the 
 want of ordinary care will not bar a recovery, if it 
 appears that the defendant, after becoming aware of 
 the injured party's situation, failed to use proper care 
 to avoid injuring him. 
 
 This fully accords with the principles stated by the 
 court in Grimes' Case, 13 111. 585. That was a suit" 
 brought to recover from the railroad company the value 
 
94 COMPARATIVE NEGLIGENCE. 
 
 of a mare which was killed by falling into a well dug 
 by the company near its track. The defendant asked 
 the court below to give the following instruction: 
 
 " If the jury believe from the evidence that the injury done 
 to the plaintiff's horse was the result of the fault or negligence 
 of the plaintiff, or the fault or negligence of both the plaintiff 
 and defendants, without any intentional wrong on the part of 
 the defendants, then the plaintiff cannot recover, and the jury 
 must find for the defendants." 
 
 In the opinion of the court, Mr. Justice Caton, in 
 discussing the propriety of this instruction, says : 
 
 " Where a party seeks to recover damages for a loss which 
 has been caused by negligence or misconduct, he must be able 
 to show that his own negligence or misconduct has not con- 
 curred with that of the other party in producing the injury, 
 and the burden of proof is upon the plaintiff to show not only 
 negligence on the part of the defendant, but also that he exer- 
 cised proper care and circumspection ; or, in other words, that 
 he was not guilty of negligence. * * * Where both parties are 
 equally in the position of right, which they hold independent of 
 the favor of each other, the plaintiff is only bound to show that 
 the injury was produced by the negligence of the defendant, 
 and that he exercised ordinary care or diligence in endeavoring 
 to avoid it, or that by the exercise of ordinary care he could not 
 have avoided it. * * * The substance of the instruction was, 
 that if the plaintiff alone was in fault, or if both parties were 
 equally in fault, the plaintiff could not recover. This, certainly, 
 is the rule of law, even though the plaintiff was only bound to 
 use ordinary care ; for, if both used ordinary care, then the 
 misfortune was an accident without the fault of either, and the 
 loss must rest where the misfortune placed it ; and if neither 
 used ordinary care, then, for the want of it, the plaintiff cannot 
 recover, even admitting that he had as much right to be upon 
 the track as the company to dig the well." 
 
 _ In support of this opinion, the court refer to the 
 following among other authorities : In the case of 
 Butterfield v. Forrester, 11 East. 60, the defendant had 
 
COMPARATIVE NEGLIGENCE. 95 
 
 placed an obstruction in a public road and the plain- 
 tiff rode furiously along the road and was injured by- 
 it, and Lord Ellenborough held : 
 
 "Two things must concur to support this action, an ob- 
 struction in the road, by the fault of the defendant, and no want 
 of ordinary care on the part of the plaintiff." 
 
 In Beers v. Housatonic Eailroad Company, 19 Conn. 
 566, it is said : 
 
 " The rational rule, and the one, as we think, established by 
 the best authorities, in reference to the care incumbent on the 
 plaintiff, is, that it must be ordinary care, as it is termed, which, 
 as stated by Lord Denman, C. J., in Lynch v. Nurdin, 1 Ad. & 
 El. N. S. 36 (41 E. C. L. 422, 425), in interpreting the phrase 
 as used by Lord Ellenborough in Butterfield v. Forrester, 11 
 East. 60, means ' that degree of care which may reasonably be 
 expected from a person in the plaintiff's situation,' and is 
 synonymous with reasonable care." 
 
 In Kinnard v. Burton, 12 Shepley, 39, it is said : 
 " An examination of all the cases leads to the conclusion 
 that' the correct rule is, that if the party, by the want of ordi- 
 nary care, contributed to produce the injury, he will not be 
 entitled to recover. But if he did not exercise ordinary care, 
 and yet did not by the want of it contribute to produce the 
 injury, he will be entitled to recover." 
 
 Such was the law in this state when, in 1858, in the 
 case of Galena & Chicago Union Railroad Company v. 
 Jacobs, 20 111. 478, Mr. Justice' Breese, in delivering the 
 opinion of the court, after reviewing a large number 
 of authorities, said : 
 
 " It will be seen from these cases that the question of liabil- 
 ity does not depend absolutely on the absence of all negligence on 
 the part of the plaintiff, but upon the relative degree of care, or 
 want of care, as manifested by both parties ; for all care or negli- 
 gence is at best but relative, the absence of the highest possible de- 
 gree of care showing the presence of some negligence, slight as 
 it may be. The true doctrine, therefore, we think, is, that in pro- 
 
96 COMPARATIVE NEGLIGENCE. 
 
 portion to the negligence of the defendant should be measured 
 the degree of care required of the plaintiff ; that is to say, the 
 more gross the negligence manifested by the defendant, the less 
 degree of care will be required of the plaintiff to enable him to 
 recover. Although these cases do not distinctly avow this doc- 
 trine in terms, there is a vein of it ; very perceptible, running 
 through very many of them, as where there are faults on both 
 sides the plaintiff shall recover, his fault being to be measured 
 by the defendant's negligence, the plaintiff need not be wholly 
 without fault, as in Raisin v. Mitchell, and Lynch v. Nurdin. 
 We say, then, that in this, as in all like cases, the degrees of 
 negligence must be measured and considered, and wherever it 
 shall appear that the plaintiff's negligence is comparatively 
 slight, and that of the defendant gross, he shall not be deprived 
 of his action." 
 
 Since the decision of. the Jacobs Case, the doctrine 
 of comparative negligence has been discussed in a 
 large number of cases, which, for convenience, may be 
 classified as follows : 
 
 First, those in which the court declare the rule to 
 be that, if the plaintiff, or person injured, has been 
 guilty of negligence, there can be no recovery, unless 
 he has been so much less culpable than the defendant 
 as to incline the balance in his favor, or unless the 
 negligence of the defendant has been more gross, or of 
 a higher degree, or of a far greater degree, or greatly 
 in excess, or still more gross or willful. 
 
 Second, those in which the rule is said to be that, 
 where the negligence of the plaintiff, or person injured, 
 is slight as compared with that of the defendant, a 
 recovery may be had. 
 
 Third, those which assert the correct statement of 
 the rule to be that a recovery may be had when the 
 negligence of the plaintiff, or person injured, is slight 
 and that of the defendant gross in comparison with 
 each other. 
 
CASES OF THE FIEST CLASS. 97 
 
 Fourth, those which show wherein the rule modi- 
 fies the doctrine of contributory negligence. 
 
 Fifth, the case of C, B. & Q. R. R. Co. v. Johnson, 
 103 111. 512, the effect of which will be shown here- 
 after. 
 
 The language used by the court in each Of these 
 classes of cases will be given in the order in which 
 they are above classified, with such comments as may 
 be deemed appropriate. 
 
 FIRST CLASS. 
 
 In Peoria Bridge Association v. Loomis, 20 111. 251, 
 Mr. Justice Breese, in delivering the opinion of the 
 court, says: 
 
 " We have said repeatedly, in such actions for negligence, 
 that the plaintiff, if not wholly free from fault, must be, as 
 compared to the negligence of the defendant, so much less cul- 
 pable as to incline the balance in his favor, both being in some 
 fault." 
 
 In Galena & Chicago Union R. R. Co. v. Dill, 22 111. 
 271, Mr. Justice Walker, in delivering the opinion of 
 the court, says: 
 
 " When the company have erected the proper signs and 
 notices at the point of intersection, the highway traveler should 
 under ordinary circumstances heed its warning, and use the 
 proper precaution to avoid a collision, and, failing to do so, 
 negligence more gross on the part of the company only will 
 render them liable for injuries received." 
 
 . Substantially the same rule is laid down in I. C. R. 
 R. Co. v. Middlesworth, 43 111. 66, where Mr. Justice 
 Walker, in delivering the opinion of the court, says: 
 
 " This court has repeatedly held that, in this class of cases, 
 where it appears that the plaintiff has been guilty of negligence 
 contributing to the injury, he cannot recover, unless it appears 
 that the defendant has been guilty of negligence more gross 
 
98 COMPARATIVE NEGLIGENCE. 
 
 than that of the plaintiff— that in this class of actions the jury 
 may compare the degrees of negligence." 
 
 In St. L., A. & T. H. R. R. Co. v. Todd, 36 111. 414, 
 Mr. Justice Walker, in delivering the opinion of the 
 court, says: 
 
 " But the rule of this court is, that negligence is relative, 
 and that a plaintiff, although guilty of negligence which may 
 have contributed to the injury, may hold the defendant liable 
 if he has been guilty of a higher degree of negligence amount- 
 ing to willful injury." 
 
 In C. & A. R. R. Co. v. Hogarth, 38 111. 377, Mr. Justice 
 Lawrence, in delivering the opinion of the court, with 
 reference to certain instructions offered by defendant 
 and refused, says: 
 
 '' Although the circumstances hypothetically put in these 
 different instructions would have been negligence, yet if the 
 defendant had been chargeable with a far greater degree of 
 negligence, and thereby caused the injury, he would, under the 
 former decisions of this court, have been liable." 
 
 Substantially the same rule is laid down in Keo- 
 kuk Packet Co. v. Henry, 50 111. 269, where Mr. Justice 
 Breese, in delivering the opinion of the court, says: 
 
 " The instructions for the plaintiff were six in number, of 
 which the second and sixth were erroneous and should not have 
 been given. The second omits a very important element, and 
 that is, the consideration of the plaintiff's own conduct as to 
 caution and circumspection on his part in getting off the boat. 
 Although the boat was violating the law by racing with another 
 boat, and by reason thereof its stoppage at the usual landing 
 place was abridged, so that the plaintiff had not a reasonable 
 time allowed him to leave the boat in the usual manner by the 
 staging, still, that did not relieve him from the duty of exer- 
 cising proper care and prudence in leaving the boat. If the 
 plaintiff was guilty of negligence, he could not recover unless 
 that of the defendants was greatly in excess, and therefore the 
 omission of that element in the instruction vitiated it." 
 
OASES OP THE FIRST CLASS. 99 
 
 In C, B. & Q. R. R. Co. v. Cauffman, 38 111. 428, Mr. 
 Justice Walker, in delivering the opinion of the court, 
 says: 
 
 ■" If they (i. e. individuals crossing the track) are guilty of 
 negligence, they must be responsible for its consequences, unless 
 the company have been guilty of misconduct still more gross 
 and willful." 
 
 The same rule had previously been laid down in C. 
 & R. I. R. R. Co. v. Still, 19 111. 508, where Mr. Justice 
 Walker, in delivering the opinion of the court, says: 
 
 "He (i.e. individual crossing track) has no right to shut 
 his eyes and close his ears to the danger he is liable to incur at 
 such a place; and if he does, then he must be responsible for 
 the consequences of his carelessness, unless the other party has 
 been guilty of misconduct still more gross and willful." 
 
 In C. & A. R. R. Co. v. Gretzner, 46 111. 83, Mr. Jus- 
 tice Breese, in delivering the opinion of the court, 
 
 says: 
 
 "We understand the doctrine to be well settled by this 
 court, in cases of this character, the plaintiff, to recover dam- 
 ages, must show that his own negligence, or misconduct, did not 
 concur in producing the injury. Aurora Br. R. R. Co. v. 
 Grimes, 13 111. 585; Dyer v. Talcott, 16 ib. 300; G. & C. U. R. 
 R. Co. v . Fay, ib. 558. And if he alone is in fault, or both parties 
 are equally in fault, the injured party cannot recover. C, B. & 
 Q. R. R. Co. v. George, 19 111. 510. This rule was somewhat 
 modified by subsequent cases. Same company v. Dewey, 26 ib. 
 255, and same v. Hazzard, ib. 373; Galena & Chicago U. R. R. 
 Co. v. Jacobs, 20 ib. 478. These cases establish the doctrine of 
 comparative negligence, and hold there must be fault on the 
 part of the defendant, and no want of ordinary care on the part 
 of the plaintiff, and where there are faults on both sides, the 
 plaintiff may, in some cases, recover, as where it appears his 
 negligence is slight and that of the defendant gross ; and this 
 rule holds even when the slight negligence of the plaintiff, in 
 some degree, contributed to the injury. Coursen v. Ely, 37 ib. 
 
100 COMPARATIVE NEGLIGENCE. 
 
 338 ; Chi. & Alton R. R. Co. v. Hogarth, 38 ib. 370; C, B. & Q. 
 R. R. Co. v. Triplett, supra, ib. 482; 111. Cent. R. R. Co. v. Sim- 
 mons, ib. 242; so in the case -of the St. Louis, Alton & Chicago 
 R. R. Co. v. Todd, 36 ib. 409. The doctrine of the Jacobs Case 
 was reasserted that negligence was relative, and although the 
 plaintiff has been guilty of negligence, he may hold the defend- 
 ant liable if he has been guilty of a higher degree of negligence 
 in producing the injury ; that slight negligence on th,e part of 
 the plaintiff does not absolve a defendant from the use of care, 
 and of all reasonable efforts to avoid the injury ; it does not 
 license him to destroy the plaintiff's property." 
 
 The same rule is laid down in 0. & M. R. R. Co. v. 
 Shanefelt, 47 111. 499, and also in C, B. & Q. R. R. Co. 
 v. Payne, 49 111. 503, in which Mr. Justice Walker, in 
 delivering the opinion of the court, says: 
 
 "It is the established doctrine of this court, that although a 
 plaintiff may be guilty of negligence, still the defendant will be 
 held liable if his negligence is greater than that of the plaintiff. 
 Where the negligence producing the injury is equal or nearly 
 so, or that of plaintiff is greater, then he cannot recover. 
 Although he may be guilty of negligence, yet if that of the 
 defendant is greater amounting to gross negligence, he would 
 be liable. Negligence resulting in injury is comparative, and 
 it is not required that the plaintiff shall be free from all 
 negligence, or that he shall exercise the highest possible degree 
 of prudence and caution, to entitle him to recover, if the 
 defendant is shown to be guilty of a higher degree of negligence. 
 The following cases announce and recognize this rule : Chicago 
 & Rock Island R. R. Co. v. Still, 19 111. 500 ;■ Chicago, Burling- 
 ton & Quincy R. R. Co, v. Dewey, 26 111. 255 ; Galena & Chicago 
 Union R. R. Co. v. Jacobs, 20 111. 478 ; Chicago, Burlington & 
 Quincy Railroad v. Hazzard, 26 111. 373 ; and a number of 
 other cases might be referred to in its support. * * * 
 
 "It will be observed that these instructions do not state the 
 rule of comparative negligence. The second only announces a 
 rule that a less degree of negligence on the part of deceased 
 would leave the company liable. This instruction does not 
 
CASES OF THE FIRST CLASS. 101 
 
 define the degrees of negligence with accuracy. If the deceased 
 was guilty of negligence, then the negligence of the company 
 should have been so much greater as to clearly preponderate, 
 as was said in the case of Chicago, Burlington & Quincy R. R. 
 Co. v. DeWey, supra." 
 
 The Payne Case is referred to with approval in C. 
 & A. E. E. Co. v. Murray, 62 111. 330. 
 
 In C, B. & Q. R. E. Co. v. Dunn, 52 111. 453, Mr. Jus- 
 tice Walker, in delivering the opinion of the court, 
 says: 
 
 "The conclusion of the sixth instruction might be con- 
 strued as implying that if the plaintiff and defendant were both 
 careless, and equally careless in causing the injury, the plaintiff 
 might nevertheless recover. This was no doubt the result of 
 inadvertence, as this court has so often said that the plaintiff 
 cannot recover where he has been guilty of contributory 
 negligence, unless his negligence is far less in degree than that 
 of the defendant, and then his own negligence is not a bar to 
 his recovery." 
 
 The same rule is expressed in C, B. & Q. R. E. 
 Co. v. Lee, 60 111. 506. 
 
 In Western Union Tel. Co. v. Quinn, 56 111. 320, 
 Mr. Justice Breese, in delivering the opinion of the 
 court, says: 
 
 " The doctrine of comparative negligence is the doctrine of 
 this court, and is now well understood." 
 
 So well had the law come to be understood by the 
 profession, that in C. W. D. E. W. Co. v. Bert, 69 111. 
 388, a case arising from a collision between a wagon 
 and a street car, the very able counsel for the appel- 
 lant, the defendant below, offered an instruction on 
 the question of the degree of care required of plaintiff, 
 the concluding portion of which was as follows : 
 
 " It was his duty, under such a state of facts, to turn out to 
 avoid the car, the driver of the car being unable to turn to the 
 
102 COMPARATIVE NEGLIGENCE. 
 
 right or to the left ; and if, through negligence or willfulness 
 on his part in this respect, a collision ensued, he is not entitled 
 to recover damages against the company, even if the latter were 
 also in fault, unless the company or its servant willfully caused 
 the injury, or were guilty of a higher degree of negligence or 
 recklessness, in comparison with which the blame attaching to 
 the plaintiff was slight or trivial." 
 
 Of this Mr. Justice Sheldon, in delivering the 
 opinion of the court, says : 
 
 " This instruction contains a fair statement of the law bear- 
 ing upon the facts of the case, as shown by the evidence, and, 
 as we think, should have been given." 
 
 The result of these repeated declarations of the 
 court was, as might have been anticipated, that the 
 circuit courts, in instructing juries, used language 
 similar to that used in these cases, assuming, as they 
 might be expected to assume, that the opinions of 
 the court of last resort, written with deliberation 
 and approved by all the members of the court in con- 
 ference, would be as accurate as instructions passed 
 upon in the haste and hurry of a jury trial could 
 reasonably be required to be. Indeed, when it is con- 
 sidered that the terms "negligence," "slight negli- 
 gence " and " gross negligence," even when accurately 
 denned, are of very little aid in enlightening a jury, it 
 is not easy to perceive why the expressions used by 
 the court in the above cases are not sufficiently pre- 
 cise. 
 
 As we have already seen (ante, p. 29), jurists as 
 eminent as Baron Rolfe, Lord Denman, Mr. Justice 
 Cresswell, Mr. Justice Willes, Mr. Justice Curtis, and 
 others, have declared that they could see no difference 
 between negligence and gross negligence ; that it 
 might well be doubted whether any intelligible dis- 
 tinction existed between them, and that it was doubt- 
 
CASES OF THE PIEST CLASS. 103 
 
 ful whether the terms could be usefully applied in 
 practice. If, then, these terms, "slight negligence," 
 " ordinary negligence " and " gross negligence" seemed 
 so indefinite and unsatisfactory to the great judges 
 above named, is it to be expected they would be any 
 the less so to a petit jury ? It does not seem very un- 
 reasonable to suppose, then, that to twelve men in the 
 jury box the statement that the plaintiff could recover 
 if his negligence was far less in degree than, or was 
 greatly exceeded by, that of the defendant, would 
 convey as intelligible an idea of the care required of 
 the respective parties, as the statement that there 
 could be a recovery if the negligence of the plaintiff 
 was slight and that of the defendant gross in compari- 
 son with each other. Indeed, when the terms " slight 
 negligence" and "gross negligence" are used in in- 
 structions to a jury, and are unaccompanied by their 
 definitions, no reason is perceived why the jurors 
 should be expected to fully understand their meaning, 
 especially in view of the fact that half the lawyers 
 who practice at the bar cannot give those definitions. 
 If such terms are to be used in instructions without 
 their definitions, it. would seem eminently proper to 
 permit the jury to take with them to their jury-room 
 a copy of Story on Bailments, care being taken, how- 
 ever, to caution them against reading Note 1 to § 17, 
 lest they be thrown into hopeless confusion. 
 
 But the supreme court took a different view of the 
 matter. They failed to recognize the distinction be- 
 tween a moot court and one created for the adminis- 
 tration of justice between parties litigant, and, striving 
 after a perfect statement of an imperfect and unsatis- 
 factory definition of the rights and duties of the re- 
 spective parties, proceeded to reverse the judgments 
 rendered by the circuit courts, which had relied upon 
 
104 COMPAEATIVE NEGLIGENCE. 
 
 the opinions above mentioned, as will more fully 
 appear from the cases now to be quoted from. 
 
 In C. & K W. B'y Co. v. Clark, 70 111. 278. Mr. Jus- 
 tice Scholfield. in delivering the opinion of the court, 
 
 says: 
 
 " It is urged that the second of plaintiff's instructions given 
 to the jury is erroneous. It is this : 
 
 " ' Even though the jury should believe, from the evidence, 
 that the said Horace Clark was, at the time in question, guilty 
 of some slight negligence, either in his management of the 
 team or in his efforts to escape contact with the engine, still, 
 if they further believe, from the evidence, that the negligence of 
 the railway company, at said time, clearly exceeded any negli- 
 gence, if such negligence has been proven, of said Clark, and 
 was the immediate cause of his death, then the jury must find 
 the railway company guilty.' 
 
 " This instruction is not correct. 
 
 " We have never held, as this instruction announces, that 
 where there is negligence on both sides, the mere preponderance 
 against the defendant will render him liable. The rule is, that 
 although the plaintiff may have been guilty of some negligence, 
 still, if it is slight as compared with that of the defendant he 
 may recover. But he cannot recover unless the negligence of 
 the defendant clearly and largely exceeds his. Illinois Central 
 Railroad Company v. Bachus, 55 111. 379 ; Chicago & Alton 
 Railroad Company v. Gretzner, 46 111. 83; the Illinois Central 
 Railroad Company v. Triplett, 38 111. 485. These cases illus- 
 trate the application and the extent of the rule. 
 
 "Under the instruction given, although there may have 
 been but slight negligence on the part of the company, and 
 some negligence on the part of the deceased, still, if the negli- 
 gence of the company clearly exceeded that of deceased, 
 although in the smallest degree, plaintiff might recover ; or, 
 under a case where there is gross negligence on the part of both 
 plaintiff and defendant, still, if that of the defendant was 
 clearly, though in the slightest degree, the greater, a recovery 
 could be had under such an instruction. This has not been 
 
CASES OF THE FIRST CLASS. 105 
 
 announced by this court as the law in any case, and to do so 
 would be unreasonable and work great injustice and wrong. It 
 is not the law, and hence cannot be sanctioned as such. We 
 have no inclination, even if we had the power, to extend the 
 rule beyond the cases to which we have just referred. We have 
 no doubt this instruction mislead the jury in their finding, and 
 it should not have been given." 
 
 In making the statement that the court had never 
 held the mere preponderance of negligence against 
 the defendant would render him liable, the court 
 had evidently forgotten the Loomis, Payne, and. other 
 cases, supra. Besides, the distinction between " clear- 
 ly exceeded" and "clearly and largely exceeded," 
 while it may be a proper one to be observed by a 
 writer of a text-book, is considerably too fine to be 
 comprehended by a jury. 
 
 In City of Joliet v. Seward, 86 111. 406, Mr. Justice 
 Scott, in delivering the opinion of the court, says: 
 
 "The thirteenth instruction given for plaintiff does not 
 state accurately the doctrine of comparative negligence. The 
 principle asserted is, even if plaintiff was guilty of negligence 
 herself, yet that fact would not destroy her right to recover if 
 the negligence of defendant was so much greater than that of 
 plaintiff as to clearly preponderate and outweigh it. That is 
 not the law. Some sanction may hnve been given to it by an 
 expression in Chicago, Burlington & Quincy Railroad Company 
 v. Payne, 49 111. 449, but that case, so far as it declares any 
 such doctrine, has been expressly overruled by subsequent cases 
 in this court." 
 
 In T., W. & W. R'y Co. v. Grable, 88 111. 443, Mr. 
 Justice Scott, in delivering the opinion of the court, 
 says: 
 
 " The fourth instruction given for plaintiff on this branch 
 of the case is so faulty it may have misled the jury. It asserts 
 the proposition that although the parents of the infant killed 
 may have been guilty of slight negligence in suffering it to go 
 
106 COMPARATIVE NEGLIGENCE. 
 
 beyond their sight; yet, if defendant was guilty of a 'greater 
 degree of negligence,' plaintiff might nevertheless recover. 
 This is not the law, as this court has had frequent occasion to 
 declare. Where there is negligence on the part of the injured 
 party, or, as in this case, on the part of those charged with the 
 care of the injured party, contributing directly to produce the 
 injury, there can be no recovery unless such negligence is slight, 
 and that of defendant is gross in comparison, in regard to that 
 which caused the injury complained of. It is not sufficient 
 that defendant may have been guilty of a greater degree of 
 negligence in respect to the producing cause of the injury." 
 
 In C. & K W. R'y Co. v. Dimick, 96 111. 47, an 
 instruction for plaintiff concluded as follows : 
 
 " Although the jury may believe, from, the evidence, that the 
 deceased was himself guilty of some negligence which may have, 
 in some degree, contributed to the injury, yet, if the jury further 
 believe, from the evidence, that the negligence of the defendant 
 was of a higher degree, or so much greater than that of the de- 
 ceased that that of the latter was slight in comparison, the 
 plaintiff is entitled to recover in this action." 
 
 Of this instruction Mr. Justice Craig, in delivering 
 the opinion of the court, says: 
 
 " Where both parties have been guilty of negligence this 
 court has never held that the mere preponderance against a 
 defendant will render him liable. The rule, as has often been 
 announced, is. that although the plaintiff may have been guilty 
 of some negligence, still, if it is slight as compared with that 
 of defendant, which is gross, a recovery may be had. Chicago 
 & Northwestern Railway Co. v. Clark, 70 111. 276." 
 
 Other similar cases might be cited, but the above 
 are sufficient for present purposes. It will now be in 
 order to examine the cases which, like the Clark Case 
 supra, declare that the rule is, that although the plain- 
 tiff may have been guilty of some negligence, still, if 
 
CASES OF THE SECOND CLASS. 107 
 
 it is slight as compared with that of the defendant, 
 he may recover. 
 
 SECOND CLASS. 
 
 In C. & A. R. R. Co. v. Pondrom, 51 111. 337, Mr. 
 Justice Walker, in delivering the opinion of the court, 
 
 says: 
 
 "The question then arises, whether having the arm 
 casually outside of the car in that manner was negligence, and 
 if so, was there greater negligence in the company in per- 
 mitting its freight cars to stand so near the track as to produce 
 the injury in the manner we suppose it occurred, and if both 
 parties were guilty of negligence, was that of appellee relatively 
 slight when compared with that of appellant ? * * * We have 
 been referred to a number of cases in other courts, and the 
 earlier cases decided in this court, as announcing the rule, that 
 where there is contributory negligence, the plaintiff can- 
 not recover. The established doctrine of this court is, that 
 where the negligence of the plaintiff is slight as compared with 
 that of the defendant, a recovery may nevertheless be had." 
 
 In C, B. & Q. R. R. Co. v. Gregory, 58 111. 282, Mr. 
 Justice Scott, in delivering the opinion of the court, 
 says: 
 
 "The first instruction given for the appellee, to which 
 exceptions are taken, asserts the principle, that if the injured 
 party was guilty of negligence, yet if his negligence was slight 
 in comparison with that of the defendant, still the injured 
 party would be entitled to a recovery. The principle sought 
 to be announced is correct according to the authority of the 
 cases decided by this court." 
 
 In C, B. & Q. R. R. Co. v. Dunn, 61 111. 387, Mr. Justice 
 Walker, in delivering the opinion of the court in refer- 
 ence to an instruction, says : 
 
 "It will be observed that this instruction violates the rule 
 of comparative negligence. It directs a recovery, even if there 
 was negligence on both sides, and it was equal ; or, rather, the 
 instruction states appellee may recover unless his negligence 
 
108 COMPARATIVE NEGLIGENCE. 
 
 exceeded that of appellant. It is the settled law of this court, 
 announced in numerous cases, that, where the plaintiff is guilty 
 of negligence, to entitle him to recover, it must be slight when 
 compared with that of the defendant. This instruction was, 
 therefore, calculated to mislead the jury, and should not have 
 been given." 
 
 In I. & St. L. R. R. Co. v. Stables, 62 111. 319, Mr. Justice 
 Walker, in delivering the opinion of the court, says : 
 
 " Was the defendant in error guilty of negligence ; and, if 
 so, to such an extent as to prevent a recovery ? Even if neg- 
 ligent, he still may recover if the negligence of plaintiff in 
 error was so much greater as, when compared with that of 
 defendant in error, it was slight. This is the rule in regard to 
 contributory negligence, long and uniformly established by nu- 
 merous cases of this court ; and, in establishing and adhering 
 to it in the many cases in which it is announced, it was done 
 with a full knowledge that other courts apparently announce a 
 different rule : but it is regarded as the settled law of this 
 court." 
 
 In C. & A. R. R. Co. v. Murray, 62 111. 330, Mr. Jus- 
 tice Scott, in delivering the opinion of the court, says: 
 
 " In case of injury resulting from negligence, the doctrine of 
 the comparative negligence of the party injured, and of the 
 party producing the injury, has been so fully recognized and 
 the distinction so accurately stated in the former decisions of 
 this court, that it is not now deemed necessary to discuss the 
 question anew. It may be regarded as the settled law of this 
 state, as declared in the case of the Chicago, Burlington & 
 Quincy Railroad Company v. Payne, 49 111. 499, that when the 
 negligence producing the injury is equal, or nearly so, or that 
 of the plaintiff is greater than that of the defendant, in such 
 cases the plaintiff cannot recover. On the other hand, although 
 the plaintiff may be guilty of negligence, yet if it is slight in 
 comparison with that of the defendant the plaintiff may 
 recover." 
 
 In C. & A. R. R. Co. v. Sullivan, 63 111. 294, Mr. Jus- 
 tice Scott, in delivering the opinion of the court, says : 
 
CASES OF THE SECOND CLASS. 109 
 
 " If it be conceded that Sullivan was guilty of negligence in 
 the position he occupied, it was slight in comparison with that 
 of the appellant, and would not bar the appellee's right of 
 recovery." 
 
 In I. C. R. R. Co. v. Cragin, 71 111. 181, Mr. Justice 
 Walker, in delivering the opinion of the court, says : 
 
 " Plaintiff had averred in his declaration that deceased was 
 in the exercise of due care, and on the trial it was essential that 
 it should appear that he was exercising such care, or if not, that 
 his negligence, when compared with that of the company, was 
 slight." 
 
 In C. & N. W. R'y Co. v. Clark, 70 111, 279, Mr. Jus- 
 tice Scholfield, in delivering the opinion of the court, 
 as we have before seen, in condemning an instruction 
 conforming to the opinions of the court in the cases of 
 the first class above discussed, says : 
 
 " The rule is, that although the plaintiff may have been 
 guilty of some negligence, still, if it is slight as compared with 
 that of the defendant, he may recover. But he cannot recover 
 unless the negligence of the defendant clearly and largely 
 exceeds his." 
 
 Of course these cases were also followed by the 
 circuit judges, and the result will be stated in the lan- 
 guage of the opinions of the supreme court. 
 
 In I. C. R. R. Co. v. Hammer, 72 111. 351, Mr. Justice 
 Walker, in delivering the. opinion of the court, says . 
 
 " In a number of his instructions, the jury are told that he 
 may recover if his negligence was slight as compared with that 
 of appellant. As we have seen, they should have required the 
 jury to find, when compared, that appellee's was slight and 
 appellant's gross. Both of these conditions must exist when a 
 plaintiff is guilty of negligence before he can recover. His 
 may have been slight as compared with that of appellant, and its 
 not gross." 
 
110 COMPARATIVE NEGLIGENCE. 
 
 In C., B. & Q. R. R. Co. v. Harwood, 90 111. 427, Mr. 
 Justice Scholfleld, in delivering the opinion of the 
 court, says: 
 
 "Appellee's first instruction informs the jury that, although 
 the deceased did not observe the precautions which an ordinarily 
 prudent man would have observed before attempting to -cross 
 defendant's track, still there may be a recovery if the jury 
 shall believe, from the evidence, that this negligence of the 
 deceased was slight in comparison with that of the defendant. 
 
 " The doctrine of comparative negligence recognized by 
 this court is, that although the plaintiff may have been guilty 
 of slight negligence contributing to the injury complained of, 
 this will not bar a recovery provided the negligence of the 
 defendant, resulting in the injury, was gross in comparison 
 with that of the plaintiff. The cases in which this doctrine has 
 been announced are numerous, extending over the period of the 
 last twenty years, and it is useless to recite them. 
 
 " Notwithstanding the expression of one of these terms of 
 comparison in one instruction may imply its correlative, to 
 avoid misleading the jury it has been held, both terms should 
 be expressed in all instructions assuming to lay down the rule. 
 The jury must be told to authorize a recovery it must appear 
 from the evidence that the negligence of the plaintiff is slight 
 and that of the defendant gross in comparison with each other, 
 and it will not be sufficient simply to say the plaintiff may 
 recover, though negligent, provided his negligence is slight in 
 comparison with that of the defendant. Illinois Central Rail- 
 road Co. v. Hammer, 72 LI. 351. This instruction is faulty in 
 this respect, and should have been refused on that ground." 
 
 In a subsequent portion of the opinion the learned 
 judge further says: 
 
 " Appellee's fifth instruction is objectionable in form and in 
 assuming the existence of certain, facts. It is more in the 
 nature of an argument than an instruction. It has also the 
 defect pointed out in the first instruction, of omitting a state- 
 ment of one of the terms of comparison in ascertaining the 
 relative degrees of the negligence of the deceased and the 
 defendant. Illinois Central Railroad Co. v. Hammer, supra. 
 
CASES OF THE SECOND CLASS. Ill 
 
 " The gross negligence of the defendant is as indispensable 
 an element in the rule as the slight negligence of the deceased, 
 and it appearing from the evidence that there is contributive 
 negligence on the part of the plaintiff or the deceased, it is for 
 the jury to determine from all the evidence the relative degrees 
 of the negligence of the parties, and unless they shall be satis- 
 fied that of the plaintiff or deceased is slight and that of the 
 defendant gross in comparison with each other, there can be no 
 recovery." 
 
 In E. St. L. P. & P. Co. v. Hightower, 92 111. 141, 
 Mr. Justice Scholfield, in delivering the opinion of the 
 court, says: 
 
 " The fifth instruction omits the element of the gross negli- 
 gence of the appellant. Where the plaintiff is guilty of contribu- 
 tory negligence he cannot recover, unless it appears that his 
 negligence was slight and that of the defendant gross in com- 
 parison with each other. Both terms must be stated to enable 
 the jury to obtain a correct apprehension of the rule. Illinois 
 Central R. R. Co. v. Hammer, 72 111. 347." 
 
 It is not worth while to argue the question whether 
 the impression made upon the mind by the expression 
 " if the plaintiff's is slight and that of defendant gross 
 when compared with each other," is materially differ- 
 ent from that made by the expression "if the plain- 
 tiff's is slight as compared with that of the defendant." 
 The distinction is, however, certainly so nice as to be 
 imperceptible to the class of people who constitute 
 our panels of jurors. That is very fine is evidenced 
 by the fact that it was only after fifteen years of dis- 
 cussion of the doctrine of comparative negligence that 
 it was discovered by the supreme court themselves. 
 
 It remains now to briefly mention the class of 
 cases in which the rule is declared to be that the plaintiff 
 may recover if his negligence is slight and that of the 
 defendant gross when compared with each other, or if 
 his is comparatively slight and that of defendant gross, 
 
112 COMPARATIVE NEGLIGENCE. 
 
 or if his is slight and that of defendant gross in com- 
 parison with each other,— all of which expressions 
 may be regarded as synonymous. 
 
 THIRD CLASS. 
 
 In St. L., A. & T. H. R. R. Co. v. Manly, 58 111. 306, 
 Mr. Justice Scott, in delivering the opinion of the 
 court, says : 
 
 " The cases in this court that establish the doctrine of com- 
 parative negligence hold that, where there have been faults on 
 both sides, still the plaintiff may recover, where his negligence 
 is slight and that of the defendant is gross in comparison with 
 that of the plaintiff." 
 
 In I. C. R. R. Co. v. Goddard, 72 111. 568, Mr. Justice 
 Sheldon, in delivering the opinion of the court, says : 
 
 " The court below gave for the plaintiff the following in- 
 struction to the jury : 
 
 " ' 1. The court instructs you that, even though you may 
 find from the evidence that the deceased was guilty of some 
 slight negligence, yet, if you further find from the evidence 
 that the defendant was guilty of gross or a higher degree of 
 negligence than deceased, and that the death of Jas. M. God- 
 dard was caused by such negligence on the part of the defen- 
 dant, then you should find defendant guilty, if all the other 
 material averments in the declaration have been proven, and 
 assess the plaintiff's damages at any sum the evidence may 
 warrant, not exceeding $5,000.' 
 
 " This instruction was wrong in informing the jury that 
 the plaintiff might recover if the negligence of the defendant 
 was of a higher degree than that of the deceased. This court 
 has said that the plaintiff cannot recover where he has been 
 guilty of contributory negligence, unless his negligence is far 
 less in degree than that of the defendant (Chicago, Burling- 
 ton & Quincy Railroad Co. v. Dunn, 52 111. 452) ; unless that of 
 the defendant was greatly in excess (Keokuk Packet Co. v. 
 Henry, 50 id. 264). And in defining more specifically the rela- 
 tive degrees of negligence where the plaintiff is allowed to 
 
CASES OF THE THIED CLASS. 113 
 
 recover although his own negligence has contributed to the in- 
 jury, it is laid down that the negligence of the plaintiff must 
 be comparatively slight and that of the defendant gross. Ga- 
 lena & Chicago Union Railroad Co. v. Jacobs, 20 111. 478 ; 
 Chicago & Alton Railroad Co. v. Gretzner, 46 id. 76 ; St. Louis, 
 Alton & Terre Haute Railroad C. v. Manly, 58 id. 300." 
 
 In R., R. I. & St. L. R. R. Co. v. Delaney, 82 111. 198, 
 Mr. Justice Scholfield, in delivering the opinion of the 
 court, says : 
 
 " The plaintiff's intestate, a lad of nine years of age, was 
 killed at a street crossing in East St. Louis, by a train of cars. 
 * * * There was evidence tending to show negligence on the 
 part of the defendant, and also on the part of the intestate. 
 As to the preponderance of this evidence, it is unnecessary that 
 we should, in the view we take of the case, express any opinion. 
 
 "The court, among other things, instructed tbe jury that 
 ' the defendant, in order to free itself from liability, must dis- 
 charge every duty imposed upon it by law ; and if the jury 
 believe, from the evidence, that the defendant did not use all 
 reasonable and lawful means and care to prevent the injury 
 complained of them, then such omission, if it contributed to 
 bring about such injury more than any negligence of deceased, 
 renders the defendant liable, and they are bound to find for the 
 plaintiff.' 
 
 "Waiving the obviously objectionable feature in this in- 
 struction, that it is not limited to the duties which the defen- 
 dant is charged in the declaration with having violated, it is 
 inaccurate as a statement of the law of contributory negligence, 
 as recognized by this court, and was calculated to and may have 
 misled the jury, and materially influenced them in the formation 
 of the verdict which they returned. Other instructions, given 
 at the instance of the plaintiff, likewise contain the same 
 objectionable feature. 
 
 " The rule of this court is, that the relative degrees of neg- 
 ligence, in cases of this kind, is matter of comparison, and that 
 the plaintiff may recover, although his intestate was guilty of 
 contributory negligence, provided the negligence of the intes- 
 tate was slight and that of the defendant gross in comparison 
 
114 COMPARATIVE NEGLIGENCE. 
 
 with each other ; and, consequently, if the intestate's negli^ 
 gence was not slight and that of the defendant gross in com- 
 parison with each other, there can be no recovery." 
 
 Many other cases announce the rale in substan- 
 tially the same terms, and among others the follow- 
 ing : C, B. & Q. R. R. Co. v. Van Patten, 64 111. 510 ; T., 
 W. & W. R'y Co. v. Spencer,, 66 111. 528 ; I. C. R. R. Co. 
 v. Hall, 72 111. 225 ; C. & N. W. R'y Co. v, Dimick, 96 
 111. 42. And it may be added that such statements of 
 it have not, up to the present time, been criticised by 
 the court. They can, therefore, be relied upon as 
 correct by all who desire to draw instructions embody- 
 ing that doctrine, at least until the cases cited shall 
 have been overruled. 
 
 In addition to these three general classes of cases 
 there are others in which the rule is stated in somewhat 
 different terms, but they are hardly numerous enough 
 to justify their classification. It will be sufficient to 
 quote from a few of them. 
 
 In I. C. R. R. Co. v. Shultz, 64 111. 176, Mr. Justice 
 Thornton, in delivering the opinion of the court, says: 
 
 " Objections are taken to certain instructions given for the 
 plaintiff below. It is urged that the first instruction omits the 
 important element that the plaintiff should have used due care; 
 that the second is indefinite in the use of the phraseology, 
 'considerable negligence' and 'little negligence,' in comparing 
 the negligence of the respective parties, and that the fourth 
 makes the company liable for the carelessness of its servants, 
 without regard to the negligence of the plaintiff. 
 
 " In a comparison of the degree of negligence, though the 
 words ' considerable ' and ' little ' are not the most appropriate, 
 and are objectionable, yet we cannot say, in view of the evi- 
 dence, that the jury were misled by their use, and induced to 
 find erroneously. The idea necessarily conveyed would be, that 
 the negligence of the one was small in degree when compared 
 with the greater negligence of the other. The jury were com- 
 
CASES OF THE THIRD CLASS. 115 
 
 pelled to consider the relative degrees of negligence of the 
 parties, and measure the fault of one by the greater careless- 
 ness of the other." 
 
 In I. C. R. R. Co. v. Maffit, 67 111. 434, Mr. Justice 
 Walker, in delivering the opinion of the court, with 
 reference to an instruction given for plaintiff, says : 
 
 " This instruction fails to state the law accurately. The rule 
 adopted by this court is, that a plaintiff, although guilty of 
 some negligence, may, nevertheless, recover, if upon comparing 
 the negligence of the respective parties, that of the plaintiff is 
 slight and that of defendant is great. 
 
 "This instruction, in violation of the rule, informed the 
 jury that, even if appellee was guilty of negligence, still, if 
 appellant was guilty of greater negligence, he might recover. 
 This left them at liberty, even if they found that appellee was 
 guilty of great negligence, to find for him if appellant was 
 only guilty of more negligence. This is not the law. It only 
 authorizes a recovery where a plaintiff is guilty of negligence 
 which is slight as compared with that of the defendant. See 
 C, B. & Q. R. R. Co. v. Van Patten, 64 111. 510." 
 
 Besides these there are quite a number of cases in 
 which the court state the rule to be, that the plaintiff 
 can recover if his negligence is slight and that of the 
 defendant gross, and omit the comparison ; but it is 
 believed the cases hereinbefore cited are quite suffi- 
 cient to furnish the reader with the rudimentary 
 knowledge of the statement of the doctrine necessary 
 to enable him to enter intelligently upon the study of 
 its meaning and effect. 
 
 It is not now proposed to comment upon these 
 variations of the court in the statement of the rule. 
 It is sufficient for the reader to know how to state it, 
 and having now learned that, he is prepared to learn 
 for what purpose the doctrine of comparative negli- 
 
116 COMPARATIVE NEGLIGENCE.. 
 
 gence was adopted in this state. This will be made 
 manifest from the cases now to be considered. 
 
 FOURTH CLASS. 
 
 In C. & A. E. E. Co. v. Gretzner, 46 111. 83, Mr. Justice 
 Breese, in delivering the opinion of the court, says : 
 
 "We understand the doctrine to be well settled by # this 
 court, in cases of this character, the plaintiff, to recover dam- 
 ages, must show that his own negligence, or misconduct, did 
 not concur in producing the injury. Aurora Br. R. R. Co. v. 
 Grimes, 13 111. 585 ; Dyer v. Talcott, 16 id. 300 ; G. & C. U. R. 
 R. Co. v. Fay, ib. 558 ; and, if he alone is in fault, or both 
 parties are equally in fault, the injured party cannot recover. 
 C, B. & Q. R. R. Co. v. George, 19 id. 510. This rule was some- 
 what modified by subsequent cases. Same Company v. Dewey, 
 26 id. 255, and Same v. Hazzard, ib. 373 ; G. & C. U. R. R. Co. 
 v. Jacobs, 20 id. 478. These cases establish the doctrine of 
 comparative negligence, and hold there must be fault on the 
 part of the defendant, and no want of ordinary care on the 
 part of the plaintiff ; and where there are faults on both sides, 
 the plaintiff may, in some cases, recover, as where it appears his 
 negligence is slight and that of the defendant gross ; and this 
 rale holds even when the slight negligence of the plaintiff, in 
 some degree, contributed to the injury. Coursen v. Ely, 37 id. 
 338 ; C. & A. R. R. Co. v. Hogarth, 38 id. 370 ; C, B. & Q. R. R. 
 Co. v. Triplett, supra, ib. 482 ; 111. Cent. R. R. Co. v. Simmons, 
 ib. 242 ; so in the case of the St. Louis, Alton & Chicago R. R. 
 Co. v. Todd, 36 id. 409. The doctrine of the Jacobs Case was 
 re-asserted, that negligence was relative, and although the 
 plaintiff has been guilty of negligence, he may hold the defen- 
 dant liable if he has been guilty of a higher degree of negli- 
 gence in producing the injury ; that slight negligence on the 
 part of the plaintiff does not absolve a defendant from the use of 
 care and of all reasonable efforts to avoid the injury ; it does not 
 license him to destroy the plaintiff's property." 
 
 In Chicago & Alton E. E. Co. v. Pondrom, 51 111. 337, 
 Mr. Justice Walker, in delivering the opinion of the 
 
 court, says: 
 
CASES OF THE FOURTH CLASS. 117 
 
 " We have been referred to a number of cases in other 
 courts, and the earlier cases decided in this court, as announcing 
 the rule, that where there is contributory negligence the 
 plaintiff cannot recover. The established doctrine of this 
 court is, that where the negligence of the plaintiff is slight as 
 compared with that of the defendant, a recovery may neverthe- 
 less be had. We are fully aware this is apparently opposed to 
 the decisions of some courts, but it is more apparent than real, 
 as recoveries are permitted in those courts where acts of the 
 plaintiff should be regarded as slightly negligent, not equal to 
 ordinary care; and by requiring the greatest possible precaution 
 on the part of the carrier. * * * Notwithstanding other courts 
 have adopted and acted upon a different rule, we regard it as 
 firmly established in this state." 
 
 In I. C. R. R. Co. v. Baches, 55 111. 389, Mr. Justice 
 Walker, in delivering the opinion of the court, says: 
 
 " This court refused to follow those authorities which hold, 
 that if a plaintiff is guilty of any negligence which contributes 
 to the injury, he could not recover, but announced the rule, 
 that although he might be guilty of negligence, still, if the 
 defendant was guilty of a higher degree of negligence, which, 
 when compared with that of the plaintiff, that of the latter was 
 greatly disproportioned or slight, he still might recover." 
 
 In St. L., A. & T. H. R. R. Co. v. Manly, 58 111. 306, 
 Mr. Justice Scott, in delivering the 'opinion of the 
 court, says: 
 
 " It was formerly held, in some of the earlier cases in this 
 state, and in some of the English and American authorities, 
 that before a party injured could recover, he must show he 
 was himself without fault. That rule has been modified to 
 some extent by recent cases. * * * The cases in this court 
 that establish the doctrine of comparative negligence hold, 
 that where there have been faults on both sides, still the 
 plaintiff may recover, where his negligence is slight and that 
 of the defendant is gross in comparison with that of the 
 plaintiff." 
 
118 COMPARATIVE NEGLIGENCE. 
 
 In I. & St. L. R. R. Co. v. Stables, 62 111. 319, Mr. 
 Justice Walker, in delivering the opinion of the court, 
 after stating the doctrine of comparative negligence, 
 
 says: 
 
 " This is the rule in regard to contributory negligence, long 
 and uniformly established by numerous cases in this court; and, 
 in establishing and adhering to it in the many cases in which 
 it is announced, it was done with a full knowledge that other 
 courts apparently announce a different rule; but it is regarded 
 as the settled law of this court." 
 
 In C, B. & Q. R. R. Co. v. Van Patten, 64 111. 516, 
 Mr. Justice Scott, in delivering the opinion of the 
 
 court, says: 
 
 " The doctrine of comparative negligence of the parties has 
 been recognized in this state certainly since the decision of the 
 case of the Galena & Chicago Union R. R. Co. v. Jacobs, 20 
 111. 478. The rule adopted in some of the earlier cases in this 
 court, that the party injured should be without fault, was 
 modified by that decision." 
 
 In C, B..& Q. R. R. Co. v. Lee, 68 111. 580, Mr. Justice 
 Scott, in delivering the opinion of the court, says: 
 
 " Formerly it was the rule, if the negligence of the plain- 
 tiff contributed to the injury, however slight, it would bar an 
 action. This rule, has been modified by more recent decisions, 
 and it is now the settled law the plaintiff may recover, notwith- 
 standing he may have been guilty of contributory negligence, 
 if his negligence is slight and that of the defendant gross." 
 
 In I. C. R. R. Co. v. Hammer, 72 111. 351, Mr. Justice 
 Walker, in delivering the opinion of the court, says: 
 
 " The rule announced in the English decisions, and of the 
 courts of some of the states of the union, is, that a plaintiff 
 must be free from all contributory negligence, but even under 
 that rule the courts frequently hold that a want of caution is 
 not contributory, especially where the conduct of a defendant 
 is grossly negligent. We may have slightly modified the rule, 
 
CASES OF THE FOURTH CLASS. 119 
 
 but we have never intended to announce, as a rule, that the 
 mere preponderance of negligence entitles a plaintiff to recover." 
 
 In I. & St. L. R. R. Co. v. Evans, 88 111. 65, Mr. 
 Justice Dickey, in delivering the opinion of the court, 
 says: 
 
 " It was formerly held that the plaintiff could not recover 
 in any case where his own negligence had materially con- 
 tributed, in any degree, to the injury. In the courts of this 
 state the severity of that rule was relaxed many years ago." 
 
 Here, then, we have nine cases in which the court 
 have declared to us, in language scarcely susceptible 
 of any other interpretation, that the doctrine of com- 
 parative negligence was adopted for the express 
 purpose, and for no other, of mitigating the rule 
 which barred the plaintiff from a recovery when he 
 was guilty of contributory negligence. As we have 
 already seen, the doctrine of contributory negligence 
 never operated to bar a recovery where the plaintiff 
 exercised ordinary care, and therefore it would natu- 
 rally seem the court intended the rule of comparative 
 negligence should permit a recovery where the plain- 
 tiff's care was less than ordinary. Indeed, as we have 
 seen in Pondrom's Case, the court, speaking through 
 one of its members who was present at the birth of 
 the doctrine, say : 
 
 " We are fully aware this is apparently opposed to the 
 decisions of some courts, but it is more apparent than real, as 
 recoveries are permitted in those courts where acts of the plain- 
 tiff should be regarded as slightly negligent, not equal to ordi- 
 nary care." 
 
 In view of all these cases, therefore, no suspicion 
 could be entertained that the court intended to lay 
 down a rule which would preclude the plaintiff from 
 recovering under circumstances which would not have 
 prevented his recovering in other states, nor in this 
 
120 COMPARATIVE NEGLIGENCE. 
 
 state before the decision of the Jacobs Case. Much 
 less would it be supposed that the court intended to 
 adopt a rule of law the effect of which would be to 
 preclude a plaintiff who exercised ordinary, but not 
 extraordinary, care from recovering, unless the negli- 
 gence of the defendant causing the injury was gross. 
 On the contrary, it would not be thought strange that 
 a circuit judge should be found who would instruct 
 a jury that a plaintiff might recover, though he failed 
 to exercise ordinary care, provided his negligence was 
 slight and that of the defendant gross in comparison 
 with each other. Such an instruction was given in 
 the circuit court of Kendall County, and the result 
 thereof will be seen in the case that follows. 
 
 THE JOHNSON CASE. 
 
 This suit was brought in the Circuit Court of Ken- 
 dall County, to recover damages for the death of the 
 plaintiff's intestate, occasioned, as was alleged, by the 
 negligence of the railroad company in the manage- 
 ment and running of a locomotive and train of cars. 
 Upon a trial, the plaintiff recovered a judgment for the 
 sum of $1,500, from which the defendant appealed to 
 the Appellate Court for the Second District, where the 
 judgment was affirmed. The railroad company there- 
 upon appealed to the supreme court, where the judg- 
 ment of the appellate court was reversed (103 111. 512). 
 The principal question presented in the case arose 
 upon certain instructions given at the instance of the 
 plaintiff, relating to the measure of care, under the 
 circumstances shown by the evidence to have existed, 
 imposed upon the respective parties. In three of 
 these instructions the doctrine of comparative negli- 
 gence was stated in substantially the following lan- 
 guage, which is the concluding sentence of the first 
 instruction : 
 
THE JOHNSON CASE. 121 
 
 s 
 
 " But if the jury believe from the evidence that Johnson 
 
 did not exercise ordinary care, yet that Johnson's negligence 
 
 was slight and that the negligence of the defendant was gross 
 
 in comparison with each other, then the plaintiff must recover, 
 
 and the verdict must be for the plaintiff." 
 
 With reference to these instructions, Mr. Justice 
 Scholfield, in delivering the opinion of the court, says: 
 
 " No question arises under these instructions with regard to 
 the measure of care it would have been the duty of the defend- 
 ant to have observed, if it had been within the power of the 
 defendant to have avoided the consequences of the negligence 
 of the plaintiff's intestate. Such a question would have 
 required proof of knowledge, in those in charge of defendant's 
 train, of the peril in which plaintiff's intestate had placed him- 
 self, at least long enough before the injury inflicted to have 
 enabled them to have formed an intelligent opinion as to how 
 the injury might be avoided, and apply the means, or the 
 equivalent of such knowledge — of which there is no pretense 
 in this case ; and it would obviously involve legal principles not 
 necessary to be now discussed. But the question here relates 
 simply to the doctrine of comparative negligence in a case 
 wherein the injured party was a co-operative cause of the injury; 
 in other words, where his acts directly contributed, in con- 
 junction with the acts of the defendant, to the injury. 
 
 " The doctrine has been announced, and often reiterated in 
 this court, that in order to authorize the plaintiff to recover on 
 the ground of the mere negligence, as distinguished from the 
 willful tort, of the defendant, it rnust appear that the party 
 injured exercised ordinary care, such as a reasonably prudent 
 person will always adopt for the security of his person or 
 property, to avoid the injury complained of. In the Jacobs 
 Case, 20 111. 488, where the doctrine of comparative negligence 
 was first announced, one of the rulings is: 'To maintain an 
 action for negligence there must be fault on the part of the 
 defendant, and no want of ordinary care on the part of the 
 plaintiff.' And so it was ruled in Chicago, Burlington & Quincy 
 •R. R. Co. v. Hazzard, 26 111. 373; Chicago, Burlington & Quincy 
 R. R. Co. v. Dewey, Admx., id. 255; Illinois Central R. R. Co. v. 
 
122 COMPAEATIVE NEGLIGENCE. 
 
 Simmons, 38 id. 242; Chicago & Alton R. R. Co. v. Gretzner, 
 46 id. 76; Chicago & Northwestern R, R. Co. v. Sweeney, 52 id. 
 325; Chicago, Burlington & Quincy R. R. Co. v. Damerell et ah, 
 81 id. 450; Chicago, Burlington & Quincy R. R. Co. v. Lee, 68 
 id. 580. In the case last cited it was said, after stating the rule 
 of comparative negligence: 'It is an essential element to the 
 right of action in all cases, the plaintiff or party injured must 
 himself exercise ordinary care, such as a reasonably prudent 
 person will always adopt for the security of his person or prop- 
 erty. There are, and there can be, no degrees of gross negli- 
 gence. The cases all go to the length of holding, where a party 
 has been injured for the want of ordinary care, no action will 
 lie unless the injury is willfully inflicted.' See, also, St. Louis, 
 Alton & Terre Haute R. R. Co. v. Manly, 58 111. 300. 
 
 " These instructions, it is to be borne in mind, relate to the 
 law of negligence, which, according to the generally approved 
 definition of Alderson, B., in Blyth v. Burningham Water Works 
 Co., 11 Exch. 784, 'is the omission to do something which a 
 reasonable man, guided upon those ordinary considerations which 
 ordinarily regulate the conduct of human affairs, would do, or 
 doing something which a prudent and reasonable man would not 
 do.' See Railroad Co. v. Jones, 95 TJ. S. (5 Otto), 439. Or, 
 according to the more terse definition of this court, in Great 
 Western R. R. Co. v. Haworth et al, 39 111. 353 : ' The opposite 
 of care and prudence — the omission to use the means reasonably 
 necessary 'to avoid injury to others.' When there is a particular 
 intention to injure, or a degree of willful and wanton reckless- 
 ness which authorizes the presumption of an intention to injure 
 generally, the act ceases to be merely negligent, and becomes 
 one of violence or fraud. ' In negligence there is no purpose to 
 do a wrongful act, or to omit the performance of a duty.' 
 Gardner v. Heartt, 3 Denio, 236. 'Negligence, even when 
 gross, is but an omission of duty. It is not designed and inten- 
 tional mischief, although it may be cogent evidence of such an 
 act.' Towanda R. R. Co. v. Munger, 5 Denio, 267. See, also, 
 Wharton on Negligence, sections 1, 2, 3. 
 
 " In holding the plaintiff may recover in an action for negli- 
 gence, notwithstanding he has been guilty of contributive 
 negligence, where his negligence is but slight and that of the 
 
THE JOHNSON CASE. 123 
 
 defendant gross in comparison with each other, it must, of 
 course, be understood the terms ' slight negligence ' and ' gross 
 negligence ' are used in their legal sense, as denned by common 
 law judges and text writers, for otherwise the terms would con- 
 vey no idea of a definite legal rule. As defined by those judges 
 and writers, these terms express the extremes of negligence. 
 Beyond gross and slight there are no degrees of negligence. 
 ' Gross gross,' ' grosser gross,' and ' grossest gross,' and ' slight 
 slight,' ' slighter slight,' and ' slightest slight,' are absurd, and, 
 in a legal sense, impossible terms. What is less than slight 
 negligence the law takes no cognizance of as a ground of action, 
 and beyond gross negligence the law, while recognizing there 
 may be liability for a trespass because of a particular intention 
 to do wrong, or of a degree of willful and wanton recklessness 
 which authorizes the presumption of a general intention to do 
 wrong, recognizes no degree of negligence. The definition of 
 gross negligence itself proves that it is not intended to be the 
 subject of comparison. It is, 'the want of slight diligence.' 
 Slight negligence is, 'the want of great diligence,' and inter- 
 mediate there is ordinary negligence, which is defined to be ' the 
 want of ordinary diligence.' Story on Bailments, section 17; 
 Shearman & Eedfield on Negligence (2d ed.), sections 16, 17; 
 Cooley on Torts, 631 ; Central Military Tract R. R. Co. v. Rocka- 
 fellow, 17 111. 541. 
 
 " In applying the measure of slight and gross negligence to 
 the acts of the respective parties charged to have been negligent, 
 it is, of course, always to be held in remembrance that the term 
 ' negligence ' is, itself, relative, ' and its application depends on 
 the situation of the parties, and the degree of care and vigilance 
 which the circumstances reasonably impose.' Cooley on Torts, 
 630. The question, therefore, in the present instance, related 
 to the measure of care, under the circumstances shown by the 
 evidence to have existed, imposed upon the respective parties. 
 It was to that measure of care that these instructions related, 
 and if they had related to any other, they would, for that cause 
 alone, have been erroneous. 
 
 "The word 'diligence,' as used in the definitions of the 
 degrees of negligence to which we have referred, is synonymous 
 with ' care.' This is shown by the text in Story, immediately 
 
124 COMPARATIVE NEGLIGENCE. 
 
 following the definitions quoted. It is there said: ' For he who 
 is only less diligent than very careful men cannot be said to be 
 more than slightly inattentive ; he who omits ordinary care is a 
 little more negligent than men ordinarily are; and he who omits 
 even slight diligence fails in the lowest degree of prudence, and 
 is deemed grossly negligent.' It cannot, then, legally be true, 
 that where the plaintiff fails to exercise ordinary care, and the 
 defendant is guilty of negligence only, the plaintiff's negligence 
 is slight and that of the defendant gross in comparison with 
 each other. 
 
 " We have seen, and we repeat, the measure is to be applied 
 with reference to the rights, duties and obligations of the re- 
 spective parties, under the peculiar circumstances in evidence. 
 Whether, therefore, the plaintiff's intestate failed to exercise ordi- 
 nary care, is to be determined — and there can be no presumption 
 under these instructions otherwise — with reference to his rights, 
 duties and obligations, and the rights, duties and obligations of 
 the defendant, under the peculiar circumstances here in evidence. 
 Being thus determined that he has failed to exercise ordinary care, 
 the legal conclusion is, he is guilty of ordinary negligence. The 
 utmost degree of negligence, merely — and it is of this only, and 
 not of trespass or other wrongs, that the instructions speak — of 
 which the defendant can be guilty, is gross negligence. The plain- 
 tiff's negligence, then, by the very terms employed, is ordinary, 
 and that of the defendant gross, in comparison with each other. 
 The language employed, in effect, says, although as to this partic- 
 ular act the plaintiff's intestate was guilty of ordinary negligence, 
 and the defendant guilty of gross negligence, still, if the jury 
 believe the plaintiff's intestate's negligence was slight — that is, 
 that it was not what the very terms employed admit it to 
 have been — and that of the defendant gross, in comparison with 
 each other, they will find the defendant guilty, etc. Surely, it 
 needs no demonstration that if, as to a particular act, the negli- 
 gence of the plaintiff was ordinary and that of the defendant 
 gross, their relation is not changed by comparing them with 
 each other. The same evidence that determines the one is gross 
 and the other ordinary, fixes thjir relative degrees with reference 
 to each other. It seems to be thought what is said in Stratton v. 
 Central City Horse R'y Co., 95 111. 25, in criticising certain instruc- 
 
THE JOHNSON CASE. 125 
 
 tions there given, sustains the ruling below in regard to these in- 
 structions. This is a misapprehension. In those instructions it 
 was said a failure to exercise ordinary care was gross negligence, 
 and in one it was said no action would lie if the plaintiff failed 
 to exercise ordinary care, unless the defendant willfully inflicted 
 the injury. We have before herein shown both these positions 
 to be inaccurate. The failure to exercise ordinary care is only 
 ordinary negligence, and although a plaintiff might not exercise 
 ordinary care, yet the defendant would be liable for injuring him 
 if his act causing injury was so willfully and wantonly reckless 
 as to authorize the presumption of an intention to injure gene- 
 rally, notwithstanding he might have had no special intention to 
 injure the plaintiff. 
 
 "These instructions are clearly erroneoiis in the respect 
 pointed out, and must necessarily have misled the jury as to the 
 doctrine of comparative negligence. There is in them, more- 
 over, a manifest attempt to connect discordant propositions, 
 which always tends to confusion. Attempts to blend separate 
 and distinct legal propositions in the same sentence or para- 
 graph usually cause error, in that such blending tends to confuse 
 and mislead, and should be avoided. 
 
 "The objection taken to the admission of evidence with 
 regard to the speed of the train is not tenable. This is clearly a 
 subject upon which anyone is entitled to express an opinion, 
 the jury being presumably able to estimate it for what it is 
 worth. Nor can we say that the evidence of the poverty of the 
 family of the deceased did any harm, although it was technically 
 erroneous to admit it. In a future trial this error can and 
 should be avoided." 
 
 Mr. Justice Dickey, in a concurring opinion, among 
 other things says : 
 
 "I do not think that the terms 'slight negligence 1 and 
 ' gross negligence,' as used in the opinion delivered in the Jacobs 
 Case, and in the long series of cases which have followed that 
 case, were used in the sense of the definitions quoted from Story, 
 in his treatise on Bailments. That author, in the same work, 
 says : ' There are infinite shades of care or diligence, from the 
 slightest momentary thought to the most vigilant anxiety. There 
 
126 COMPARATIVE NEGLIGENCE. 
 
 may be a high degree o£ diligence, a common degree of diligence 
 and slight degree of diligence.' He defines ' ordinary diligence ' 
 as 'that degree of diligence which men in general exert m 
 respect to their own concerns.' He defines ' extraordinary dili- 
 gence ' as ' that which very prudent persons take of their own 
 concerns.' And he says ' slight diligence ' is ' that which per- 
 sons of any prudence at all take of their own concerns.' All 
 this is readily understood — is in harmony with the common 
 meaningtof the words used ; hut when he says, in section 17, 
 that ' ordinary negligence ' may be defined to be ' the want of 
 ordinary diligence,' and ' slight negligence ' to be ' the want of 
 great diligence,' and ' gross negligence ' to be ' the want of slight 
 diligence,' he surely does not give to these phrases the meaning 
 in which they are used in a common or popular sense, or the 
 meaning in which they have generally been used by this court 
 in the Jacobs Case, and other kindred cases ; nor does he give 
 the meaning which would naturally be adopted by a jury in 
 giving effect to an instruction given by the court. Giving the 
 words their popular sense, it would rather seem that ordinary 
 negligence would be such negligence as men of common pru- 
 dence indulge in, which betokens only the exercise of ordinary 
 care, and not the want of ordinary care, as is suggested. This, 
 where the law requires only ordinary care, is not negligence at 
 all, for in law negligence is always faulty. It is the failure in 
 some degree to use that care which the law requires under the 
 circumstances. In a case where the law demands only the use 
 of ordinary care, and ordinary care is actually exercised, there is 
 in law no negligence whatever. In such case it is not true that 
 the want of great diligence is in law slight negligence. In the 
 popular sense of the words, slight negligence is a slight want of 
 the care which the circumstances demand. A man obviously, 
 therefore, may in such case fail slightly to use ordinary care, and 
 in the popular sense of the words he would be guilty of slight 
 negligence, and only slight negligence, and this, although he did 
 not do all that ordinary care required. And so of ' gross negli- 
 gence.' Its popular meaning is a very great failure to use the care 
 which the law requires. It is not essential to gross negligence 
 that there shall be an utter want of care, or in the language of 
 Story, 'the want of even 'slight diligence.' The exercise of slight 
 
THE JOHNSON CASE. 127 
 
 diligence, where the highest degree of care is by law required, 
 may still leave the party guilty of gross negligence ; that is, 
 guilty of a very great failure to exercise the highest care. 
 
 " Nor do I concur in the dicta which say there are, and can 
 be, no degrees in gross negligence, and no degrees in slight neg- 
 ligence. The adjectives ' slight ' and ' gross ' seem to me to be 
 capable of comparison, as most adjectives are. I see no absurdity 
 in saying ' gross,' ' more gross,' ' most gross,' or ' gross, 1 ' grosser, 1 
 ' grossest,' or ' slight,' ' more slight,' ' slightest.' In fact, in the 
 quotation, supra, from Story, he speaks of ' infinite shades of care, 1 
 from the ' slightest ' momentary thought to the ' most vigilant 
 solicitude.' In fact, the imperfection of these definitions of 
 Story leads Cooley, in his work on Torts, page 630, to say of 
 this classification, that it ' only indicates that under the special 
 circumstances great care or caution was required, or only ordi- 
 nary care, or only slight care ' ; and to add ' if the care demanded 
 was not exercised, the case is one of negligence. 1 The terms 
 'slight negligence, 1 or 'moderate negligence, 1 or 'gross negli- 
 gence,' do not indicate offenses of a different nature, but differ- 
 ent degrees in offenses of the same nature. 
 
 " f think, therefore, there may be cases in which it may be 
 legally true that the plaintiff has failed in some degree to exer- 
 cise ordinary care, and that in the same case the defendant has 
 been guilty of gross negligence wherein the plaintiff's negligence 
 may be slights — that is, may consist of a slight failure to use 
 ordinary care — and that of the defendant gross in comparison 
 therewith. To my mind, the proposition that a plaintiff's negli- 
 gence is slight, is not incompatible with the proposition that he 
 has failed in some degree to use ordinary diligence. 
 
 " I pursue this discussion no further here, for the reason that 
 in my judgment the propriety of adopting in this connection 
 Mr. Story's definitions is a question which does not come in 
 judgment in this case." 
 
 Briefly stated, the opinion of the majority of the 
 court declares that in order to authorize the plaintiff 
 to recover on the ground of the mere negligence, as 
 distinguished from the willful tort, of the defendant, 
 it must appear that the party injured exercised ordi- 
 
12S COMPARATIVE NEGLIGENCE. 
 
 nary care, such as a reasonably prudent person will 
 always adopt for the security of his person or prop- 
 erty, to avoid the injury complained of, excepting, of 
 course, where the defendant, after becoming aware 
 of the situation of the party injured, fails to exercise 
 proper care to avoid inflicting the injury. It also de- 
 fines negligence to be " the omission to do something 
 which a reasonable man, guided upon those ordinary 
 considerations which ordinaiily regillate the conduct 
 of human affairs, would do, or doing something which 
 a prudent and reasonable man would not do," or "the 
 opposite of care and prudence— the omission to use 
 the means reasonably necessary to avoid injury to 
 others." It asserts that the terms " slight negligence " 
 and "gross negligence," as used in the cases an- 
 nouncing the doctrine of comparative negligence, 
 must be taken in their legal sense, as defined by com- 
 mon-law judges and text- writers ; that there are but 
 three degrees of negligence, slight, ordinary and -gross, 
 and that there are and can be no different degrees of 
 slight negligence, nor of gross negligence. It con- 
 cludes that one who exercises ordinary care is guilty 
 of slight negligence, and one who fails, to exercise 
 ordinary care is guilty of at least ordinary negligence, 
 and therefore it is a contradiction of terms to say that 
 his negligence is slight and that of another gross in 
 comparison with each other. 
 
 The proposition that there can be no recovery 
 where the person injured has failed to exercise ordi- 
 nary care, is entirely inconsistent with the previous 
 decisions of the court, and this inconsistency is clearly 
 shown by the language repeatedly employed in their 
 opinions. 
 
 In I. C. E. R. Co. v. Middlesworth, 43 111. 65, the court 
 below refused to give the following instruction re- 
 quested by the defendant : 
 
THE JOHNSON CASE. 129 
 
 "That, although the defendant may have been guilty of 
 negligence in the management of the train in question, yet if 
 the plaintiff was also guilty of a want of proper and reasonable 
 care and prudence on the occasion, * * * then, unless the proof 
 shows that the conduct of the engineer was negligent and not 
 merely careless and imprudent, the law is for the defendant, and 
 the plaintiff cannot recover for the damage done." 
 
 Of this instruction, Mr. Justice Walker, in deliver- 
 ing the opinion of the cou*t, says : 
 
 " It asserted a correct legal proposition, and should have been 
 given. * * * This court has repeatedly held that, in this class 
 of cases, where it appears that the plaintiff has been guilty of 
 negligence contributing to the injury, he cannot recover, unless 
 it appears that the defendant has been guilty of negligence 
 more gross than that of the plaintiff ; that, in this class of 
 actions, the jury may compare the degrees of negligence. This 
 instruction substantially told the jury that, if appellee had been 
 guilty of unreasonable negligence and the engine driver had not 
 been guilty of -gross negligence, they should find for appellant. 
 By this instruction the jury would have been required to deter- 
 mine whether appellee had been guilty of unreasonable negli- 
 gence, and, if so, then whether the employes had been guilty of 
 gross negligence. If they had so found, then they would have 
 been required to find for appellee ; but, if they found appellee 
 guilty of negligence, and the engineer of no greater or higher 
 degree of negligence, they would have found for appellant." 
 
 It will be observed that in this opinion the court 
 use the terms " more gross " and " unreasonable negli- 
 gence," and in effect decide that a plaintiff may recover, 
 though guilty of "unreasonable negligence," which is 
 certainly not a stronger expression than "want of 
 ordinary care." 
 
 In C, B. & Q. E. E. Co. v. Van Patten, 64 111. 517, 
 Mr. Justice Scott, in delivering the opinion of the 
 court, says : 
 
 "The cases in this court that establish the doctrine of 
 comparative negligence, hold that there must be negligence on 
 
130 ' COMPARATIVE NEGLIGENCE. 
 
 the part of the defendant and no want of ordinary care on the 
 part of the plaintiff ; and where there has been negligence in 
 both parties, still the plaintiff may recover where his negligence 
 is slight, and that of the defendant is gross in comparison with 
 that of the plaintiff. This rule has been extended to include 
 cases where the negligence of the plaintiff has contributed in 
 some degree to the injury complained of. * * * If the de- 
 ceased observed reasonable care and caution in approaching the 
 crossing, and the accident was occasioned by the negligence of 
 the servants of the company, then the appellant is clearly liable; 
 but if the deceased was guilty of negligence in not observing 
 the precautions which an ordinarily prudent man would do be- 
 fore attempting to cross the track, then the real question in the 
 case is, whether his negligence in that regard was slight in com- 
 parison with that of the servants of the company, if they were 
 guilty of negligence at all." 
 
 If "not observing the precautions which an ordi- 
 narily prudent man would do," is equivalent to a want 
 of ordinary care — and, no doubt, it is — the court, in the 
 case last cited, have clearly held that a want of ordi- 
 nary care is not fatal to a recovery, if the negligence 
 of the person injured is slight, and that of defendant 
 gross in comparison with each other. 
 
 In I. C. R R. Co. v. Cragin, 71 111. 183, Mr. Justice 
 Walker, in delivering the opinion of the court, says : 
 
 " Complaint is made of instructions given for appellee. * * * 
 The fourth, to which objection is made, informs the jury that, 
 if the company was guilty of negligence, and deceased used 
 ordinary care, or was guilty of slight negligence in comparison 
 with the negligence of the company, and it was gross, then 
 plaintiff was entitled to recover. This instruction expresses the 
 law accurately, and it was properly given." 
 
 It is quite apparent that the court here used the 
 term " ordinary care " in its common acceptation as 
 the absence of culpable negligence, and not as equiva- 
 lent to slight negligence. 
 
THE JOHNSON CASE. 131 
 
 In St." L: & S. E. R'y Co. v. Britz, 72 111. 260, Mr. 
 Justice Scholfield, in delivering the opinion of the 
 court, says: 
 
 " It is familiar law in this court, that, although the negli- 
 gence of the defendant may have been the prime cause of the 
 plaintiff's injury, yet if, by the exercise of due care, he might 
 have avoided receiving the injury, and his negligence is not 
 slight, and that of the defendant gross when compared with 
 each other, he cannot recover." 
 
 " Due care " is, as all know, but another name for 
 " ordinary care," and this case, therefore, also declares 
 the law to be, that a failure of the plaintiff to exercise 
 ordinary care will not preclude a' recovery when such 
 failure is only slight negligence. 
 
 In Sterling Bridge Co. v. Pearl, 80 111. 256, Mr. Justice 
 Scholfield, in delivering the opinion of the court, says : 
 
 "Among other things the court instructed the jury as follows: 
 
 " ' The court, in this case, instructs the jury it is and was the 
 duty of the Sterling Bridge Company, at the time of the accident 
 referred to in the evidence in this case, to have and keep their 
 bridge and its approaches in good repair and safe condition for 
 the purpose for which they were built and ordinarily used ; that 
 in the performance of that duty they were legally bound to use 
 ordinary care ; that ordinary care means such care as ordinarily 
 prudent men use in regard to their own affairs of the same im- 
 portance and risks of danger ; that, if the plaintiff was injured, 
 in this case, by reason of the defendant's failure to perform 
 such duty in the manner required, then, if the plaintiff used 
 ordinary care on his part, he has a right to recover ; but if the 
 plaintiff's injury was not caused by the failure of the defendant 
 to do its duty, or the plaintiff, by his own neglect of ordinary 
 prudence and care, contributed to a considerable degree to the 
 injury, then he cannot recover.' 
 
 " The only statement that we have oeen able to discover, in 
 any of the instructions given, of the degree of contributory 
 negligence which will preclude appellee from recovering is that 
 found in the last clause of the foregoing instruction, that if 
 
132 COMPARATIVE NEGLIGENCE. 
 
 ' the plaintiff, by his own neglect of ordinary prudence and care, 
 contributed, to a considerable degree, to the injury, then he can- 
 not recover.' The question under the evidence was important, 
 and for a misdirection in this respect, if for no other, the judg- 
 ment should be reversed. 
 
 " We are aware of no authority which holds that where the 
 plaintiff, as well as the defendant, is negligent, the plaintiff can 
 recover, unless his negligence contributed to ' a considerable de- 
 gree'' to the injury complained of. Certainly such is not, and 
 has not been, recognized as the law in this state since the Jacobs 
 Case, 20 111. 478, where, after an exhaustive review of the au- 
 thorities, the conclusion was thus stated : ' We say, then, that 
 in this, as in all like cases, the degrees of negligence must be 
 measured and considered, and wherever it shall appear that the 
 plaintiff's negligence is comparatively slight, and that of the de- 
 fendant gross, he shall not be deprived of his action.' This has 
 been repeated time and again, with but slight variation in form and 
 its corollary — where the negligence of the plaintiff is not slight, 
 and that of the defendant gross in comparison with each other, 
 the plaintiff cannot recover — has been recognized in the follow- 
 ing among other cases : Chicago & Alton Railroad Co. v. Pon- 
 drom, 51 111. 333 ; Chicago, Burlington & Quincy Railroad Co. 
 v. Dunn, 52 id. 452 ; Illinois Central Railroad Co. v. Baches, 
 Admx., 55 id. 379 ; Illinois Central Railroad Co. v. Maffit, 67 
 id. 431. 
 
 "It may be in the general argument of the case, the ex- 
 pression may be found, in opinions, that the plaintiff will not be 
 precluded from recovering for injuries received by reason of the 
 defendant's negligence, although negligent himself, unless his 
 negligence contributed, in a considerable degree, to the injury ; 
 but this, on examination, it is believed, will be found to be used 
 by way of argument or illustration only, and not for the pur- 
 pose of giving an accurate definition of the rule. 
 
 "If the plaintiff has failed to exercise due and ordinary 
 care and caution, and thereby contributed to bring on himself 
 the injury of which he complains, unless the negligence of the 
 defendant has been gross, in comparison with his conduct, he 
 can not recover." 
 
THE JOHNSON CASE. 133 
 
 The concluding sentence of this opinion cannot be 
 harmonized with the opinion delivered by the same 
 learned judge in the Johnson Case. In' other respects, 
 also, the two opinions are irreconcilably conflicting. 
 In the Pearl Case it is held, in effect, that contributive 
 negligence is a want of ordinary care, while in the 
 Johnson Case it is held that ordinary care may be con- 
 tributive negligence. In the former case the term 
 "negligence " is used in its popular sense as equivalent 
 to a "want of ordinary care," while in the latter it is 
 used in its so-called legal sense, " slight negligence," 
 meaning a "want of extraordinary care." 
 
 In Foster v. C. & A. R. R. Co., 84 111. 168, Mr. Justice 
 Walker, in delivering the opinion of the court, says : 
 
 "Plaintiff in error seems to. have been indifferent to his 
 safety and even highly negligent. When safety and danger 
 were before him, he seems to have chosen, the latter ; and it 
 is clear to our minds that had he used ordinary prudence, the 
 accident would not have occurred. This he was bound to do 
 unless the company was guilty of gross negligence." 
 
 The corollary to this is, that if the company was 
 guilty of gross negligence, the plaintiff might recover, 
 though himself guilty of a want of ordinary care. 
 
 In the Town of Grayville v. Whittaker, 85 111. 441, 
 Mr. Justice Dickey, in delivering the opinion of the 
 court, says : 
 
 " In this case it should have been left to the jury to deter- 
 mine, from all the testimony given, whether the corporation has 
 failed to exercise ordinary prudence in not guarding the bridge 
 by railings or otherwise. If not, there can be no recovery. If 
 the corporation was guilty in this respect of a want of ordinary 
 care, but not guilty of gross negligence, in such case the plain- 
 tiff, to entitle him to recover, must show that he did not, through 
 a want of ordinary care, contribute to the injury, and this the 
 jury must determine from all the evidence. If the jury, from 
 all the evidence, should find that the failure of the corporation 
 
134 COMPARATIVE NEGLIGENCE. 
 
 in the respect mentioned was such that its neglect constituted 
 gross negligence, then the plaintiff, to recover, need not show 
 that he was entirely from negligence contributory to the injury, 
 but to entitle him to recover, in such case, it is sufficient for him 
 to .show that his negligence, if any, was slight in comparison 
 with the supposed gross negligence of the corporation." 
 
 In C, B. & Q. R. E. Co. v. Harwood, 90 111. 427, Mr. 
 Justice Scholfield, in delivering the opinion of the 
 court, says : 
 
 "Appellee's first instruction informs the jury that, although 
 the deceased did not observe the precautions which an ordinarily 
 prudent man would have observed before attempting to cross 
 defendant's track, still there may be a recovery if the jury shall 
 believe, from the evidence, that this negligence of the deceased 
 was slight in comparison with that of the defendant. * * ■* 
 The jury must be told, to authorize a recovery, it must appear 
 from the evidence that the negligence of the plaintiff is slight 
 and that of the defendant gross, in comparison with each other, 
 and it will not be sufficient simply to say the plaintiff may re- 
 cover, though negligent, provided his negligence is slight in 
 comparison with that of the defendant. I. C. R. R. Co. v. Ham- 
 mer, 72 111. 351. This instruction is faulty in this respect, and 
 should have been refused on that ground." 
 
 Neither of these opinions is consistent with the 
 idea that a want of ordinary care contributing to the 
 injury is always fatal to a recovery. On the contrary, 
 the term "negligence" is there used in its popular 
 sense as meaning a " want of ordinary care," and it is 
 assumed that negligence is not contributory unless it 
 amounts to a want of ordinary care, and that such 
 contributory negligence on the part of a plaintiff is 
 not fatal to a recovery, if it is slight and that of the 
 defendant gross when compared with each other. 
 
 If, after all these cases, there could have been a 
 doubt as to the views of the court on this question, no 
 reasonable man could have entertained it after the 
 
THE JOHNSON CASE. 135 
 
 publication of the opinion of the court, in Stratton v. 
 Cent. City Horse R'y Co., 95 111. 25. In that case, Mr. 
 Justice Dickey, in delivering the opinion of the court, 
 says : 
 
 " By the eleventh and twelfth instructions given at the request 
 of the defendant, the jury are told that if plaintiff failed to ex- 
 ercise ordinary care, he was guilty of gross negligence ; and also, 
 in the eleventh, it is said that where the plaintiff is injured, for 
 want of ordinary care, no action will lie unless defendant will- 
 fully inflicted the injury. These propositions are unsound. Neg- 
 ligence is a failure to exercise the care required by law. Tn cases 
 where thelaw requires the exercise of ordinary care, and requires 
 no more, the slightest failure in that regard is negligence. It is 
 plain that in such case a party may exercise some care, and yet 
 not so much care as men of ordinary prudence would usually use 
 under such circumstances, and hence would be somewhat at fault ; 
 and it is plain that the care so exercised may vary in degree, ranging 
 through every point, from the least possible care which can be 
 regarded at all as care up to the point where the care so exer- 
 cised falls short of the standard of ordinary care in the least 
 possible degree. To say, then, that every failure to attain the 
 standard of ordinary care constitutes gross negligence, is palpa- 
 bly an error, and one well calculated to mislead a jury. 
 
 " Nor can it properly be said, as is stated in the eleventh in- 
 struction, that, ' where a person is injured for want of ordinary 
 care, no action will lie unless the injury is willfully inflicted by 
 the defendant.' * * * It is a palpable error to say, that where 
 plaintiff fails in any degree to use the full measure of care re- 
 quired of him, he cannot recover unless the injury was inflicted 
 ' willfully ' by the defendant. A jury, in such connection, would 
 doubtless understand the word ' willfully ' to mean the same as 
 the word ' intentionally,' and would understand that if plaintiff 
 failed in any degree whatever to use care up to the standard of 
 ' ordinary care, 1 then, no matter how far defendant may have 
 fallen short of ordinary care in the matter, or how grossly desti- 
 tute of care the conduct of defendant may have been, still, in such 
 case, no recovery can be had unless the injury was intentionally 
 inflicted by defendant, or, in other words, unless this railroad 
 
136 COMPARATIVE NEGLIGENCE. 
 
 company allowed its track to rise above the surface of the ground 
 at this place, for the purpose of injuring this plaintiff, or at 
 least for the purpose of throwing people, who might chance to 
 attempt to cross at that point, out of their wagons and wound- 
 ing them. The proposition, when analyzed, is simply ahsurd." 
 
 It is to be borne in mind that the opinion last cited 
 was, at the time of the trial of the Johnson Case in 
 the circuit and appellate courts, one of the very latest, 
 if not the latest, published decisions of the supreme 
 court having a bearing upon the subject of compara- 
 tive negligence, and it was without doubt relied upon 
 by the circuit judge in passing upon the instructions. 
 He was certainly guilty of no want of ordinary care 
 in so relying upon it. His instructions to the jury 
 were warranted not only by the Stratton Case, but 
 also by the other eight cases preceding it. He was 
 also justified in giving them by those cases which de- 
 clare that the doctrine of comparative negligence was 
 applied for the purpose of mitigating the rule of con- 
 tributory negligence, and to permit a plaintiff to 
 recover, when he could not recover were the doctrine 
 of contributory negligence applied, as under that doc- 
 trine no negligence was regarded as contributory so as 
 to defeat a recovery, unless it amounted to a want of 
 ordinary care. Moreover, he was fortified in his opin- 
 ion by a great multitude of decisions of the supreme 
 court, in which the term "negligence" was used in its 
 popular sense as equivalent to " fault," " want of due 
 and proper or ordinary care," "want of reasonable 
 care," etc., etc., all of which are synonymous terms, 
 and in none of which was it used as equivalent to 
 "want of great or extraordinary diligence." 
 
 The very definition itself of negligence adopted by 
 the court in the Johnson Case is a complete refutation 
 of the argument used in the opinion. The " omission 
 to do something which a reasonable man, guided upon 
 
THE JOHNSON CASE. 137 
 
 those ordinary considerations which ordinarily regulate 
 the conduct of human affairs, would do, or doing some- 
 thing which a prudent and reasonable man would not 
 do," is nothing more nor less than a want of ordinary 
 care. That is the popular signification of the term neg- 
 ligence, as it would be understood by any juryman, 
 and it may be slight or it may be gross. To tell a jury 
 that negligence is the "omission to do something which 
 a reasonable man, guided upon those ordinary consid- 
 erations which ordinarily regulate the conduct of 
 human affairs, would do, or doing something which a 
 prudent and reasonable man would not do," and then 
 tell them that a plaintiff though guilty of slight neg- 
 ligence may yet recover if the defendant has been 
 guilty of gross negligence, when compared with that 
 of the plaintiff, means, if it means anything, that the 
 plaintiff, though he has been guilty of a want of ordi- 
 nary and reasonable care, may yet recover, if his neg- 
 ligence is slight and that of the defendant gross when 
 compared with each other. 
 
 If it be true, as the court declare, that there are 
 but three degrees of negligence, slight, ordinary and 
 gross, and neither of these degrees can have any subdi- 
 visions, it follows that where, under the circumstances 
 of a particular case, a plaintiff's negligence is slight, 
 and that of a defendant gross, they are necessarily so 
 when compared with each other. It would be an utter 
 absurdity to suppose that in such a case the slight 
 negligence of the plaintiff and the gross negligence of 
 the defendant could be slight and ordinary, or ordinary 
 and gross, or gross and slight, when compared with 
 each other. As we have before seen, the learned judge, 
 delivering the opinion of the court in the Johnson 
 Case, says : 
 
 " Surely it needs no demonstration that if, as to a particular 
 act, the negligence of the plaintiff was ordinary and that of the 
 
138 COMPARATIVE NEGLIGENCE. 
 
 defendant gross, their relation is not changed by comparing them 
 with each other. The same evidence that determines the one is 
 gross and the other ordinary, fixes their relative degrees with 
 reference to each other." 
 
 If that be true, why is it that we are told that the 
 comparison is of the essence of comparative negli- 
 gence, and that it is error to instruct a jury that the 
 plaintiff may recover if his negligence is slight and 
 that of the defendant gross, without adding the words 
 " when compared with each other"? Would it not be 
 better to rechristen the doctrine and call it the doc- 
 trine of " fixed negligence " ? 
 
 It may be true the terms " gross gross," " grosser 
 gross," and "grossest gross," are absurd, but they are 
 no more so than "more gross" or "most gross," and 
 yet we find Mr. Justice Breese, the father of the doc- 
 trine of comparative negligence, in delivering the 
 opinion in the Jacobs Case, saying, "the more gross 
 the negligence manifested by the defendant, the less 
 degree of care will be required of the plaintiff to en- 
 able him to recover." 
 
 And in Great Western R R. Co. v. Haworth, 39 111. 
 346, Mr. Justice Walker, in delivering the opinion of 
 the court, used the following language : 
 
 " We have seen that, when a party has exposed his prop- 
 erty to such a degree of danger that it will most probably, be 
 destroyed, he has no right to recover, unless the party causing 
 the injury is shown to have been guilty of grosser negligence." 
 
 Besides, the terms "slight," "slighter," "slightest," 
 and "gross," "grosser," "grossest," are in common use, 
 and that they are proper expression's has never been 
 questioned. See Webster's dictionary and any work 
 on grammar. 
 
 But the chief objection to the doctrine of the John- 
 son Case is, that it turns the rule of comparative neg- 
 
THE JOHNSON CASE. 139 
 
 ligence, which, as we have before seen, the court has 
 repeatedly declared to have been introduced for the 
 benefit of the plaintiff, and to permit a recovery in 
 cases where his contributory negligence would bar 
 him in other states, into an engine of destruction 
 which places the public almost at the mercy of rail- 
 road companies and others who cause injuries to be in- 
 flicted through their negligence or that of their ser- 
 vants. As we have before seen, prior to the adoption 
 of the doctrine of comparative negligence, a plaintiff 
 could always recover if he exercised ordinary care, and 
 the defendant did not, or was guilty of ordinary neg- 
 ligence. It was not incumbent upon him to show, if 
 he exercised only ordinary care, that the defendant 
 was guilty of gross negligence. But inasmuch as or- 
 dinary care is, according to the doctrine of the John- 
 son Case, but another name for slight negligence, if 
 the doctrine of comparative negligence is applied, a 
 plaintiff who exercises only ordinary care cannot re- 
 cover unless the defendant is guilty of gross negligence. 
 In other words, if a man of ordinary sense and pru- 
 dence, conducting himself as men of that character 
 ordinarily do, is run over by a railroad train, which by 
 reasonable and ordinary care he could not avoid, he 
 can have no award of damages unless he can show 
 the railroad company to have been guilty of gross neg- 
 ligence. To say that such a doctrine is contrary to 
 a sound public policy is to put it very mildly. 
 
 That such is the logical consequence of the doctrine 
 of the Johnson Case, cannot be questioned. It is so 
 understood by the profession. Such also is the con- 
 struction placed upon it by as able a tribunal as the 
 Appellate Court of the First District. 
 
 In the case of W., St. L. & P. E. R. Co. v. Moran, 13 
 Bradwell 75, the court below had given an instruction, 
 the effect of which was, that if plaintiff exercised ordi- 
 
140 COMPARATIVE NEGLIGENCE. 
 
 nary care and defendant did not, there could be a re- 
 covery. Of this instruction of the court, per Bailey, P. 
 J., say : 
 
 "But the more serious difficulty with, the instruction is, 
 that it entirely misstates the rule of law applicable to cases like 
 the present, where the evidence tends to charge both parties 
 with contributory negligence. The rule stated is, that a recov- 
 ery may be had where the plaintiff has, and the defendant has 
 not, exercised reasonable and ordinary care. The doctrine of 
 comparative negligence prevailing in this state, and which has 
 been so often stated and precisely defined, is, that a plaintiff, 
 though guilty of negligence contributing to the injury com- 
 plained of, may still recover if his negligence is slight and that 
 of the defendant gross in comparison therewith. But to entitle 
 a plaintiff to recover under this rule, there must be no want of 
 ordinary care on' his part. C, B. & Q. R. R. Co. v. Van Patten, 
 64 111. 510 ; C, B. & Q. R. R. Co. v. Lee, 68 id. 576 ; I. C. R. R. 
 Co. v. Heatherington, 83 id. 510 ; C, B. & Q. R. R. Co. v. John- 
 son, 103 id. 512, and cases cited ; C. & N. W. R'y Co. v. Thorson, 
 11 Bradwell, 631. The 'slight negligence' contemplated by 
 the rule must, therefore, be a degree of negligence less than a 
 failure to exercise ordinary care, and is a degree of which the 
 plaintiff may be guilty, even though in the exercise of ordinary 
 care. 
 
 " The rule laid down in the instruction, then, would allow the 
 plaintiff to recover, though chargeable with slight negligence, pro- 
 vided, the defendant was guilty of a want of ordinary care. Neg- 
 ligence, according to the classification laid down by eminent law 
 writers, and adopted and approved by the supreme court in C, B. 
 & Q. R. R. Co. v. Johnson, supra, may be of three degrees, viz: 
 'slight negligence,' which is defined to be the want of great care 
 and diligence ; ' ordinary negligence,' which is the want of ordi- 
 nary care and diligence ; and ' gross negligence,' which is the want 
 of even slight care and diligence. Several cases are to be found, 
 it is true, which seem to hold that a want of ordinary care and 
 diligence is gross negligence ; but all such cases must be held to 
 be overruled by the case last cited. 
 
 "The instruction thus appears to hold that the plaintiff, 
 
THE JOHNSON CASE. 141 
 
 though guilty of slight negligence, may recover, if the defend- 
 ant is shown to be guilty of only ordinary negligence. This, 
 according to the latest decision of the supreme court, is clearly 
 and fatally at variance with the doctrine of comparative negli- 
 gence prevailing in this state." 
 
 In First National Bank of Lanark v. Eitenmiller, 
 14 Brad. 26, the court, per Wilson, J., say : 
 
 "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 de- 
 fendant'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 intro- 
 duced tending to support the theories of the respective parties, 
 as to the weight of which we express no opinion, it being suffi- 
 cient to say that the facts, as shown, presented a proper case for 
 the application of the doctrine in relation to comparative negli- 
 gence 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. B. B. Co. v. Johnson, 103 111. 512 ; C. & K 
 W. R'y 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 compari- 
 son of the negligence of the plaintiff with that of the defend- 
 ant. This' element of comparison is of the very essence of the 
 rule. It must not only appear that the negligence of the plain- 
 tiff 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 instruc- 
 tions wholly omit. Again, the jury were told, by the first 
 instruction, that if the plaintiff was exercising ordinary and 
 
142 COMPARATIVE NEGLIGENCE. 
 
 usual care and prudence, the defendant was liable, if the defend- 
 ant 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." 
 
 But the Appellate Court of the Second District do 
 not think the supreme court so intend it, for in C, 
 B. & Q. R. R. Co. v. Dougherty, 12 Brad. 199, in an 
 opinion delivered by Pillsbury, J., they say, with 
 respect to the Johnson Case, as follows : 
 
 " We might, perhaps, be permitted to say that we do not 
 understand the above opinion as in any manner trenching upon 
 the general rule, that we have attempted to show is recognized 
 by all the courts, that if, a plaintiff exercises ordinary care 
 under all the circumstances of the case, and the defendant is 
 negligent, though not to the extent of being grossly so, he 
 may recover, although his care is not of that extreme degree 
 denominated 'great care,' or such as men of extraordinary 
 caution and prudence might have used." 
 
 The Appellate Courts of the Third and Fourth Dis- 
 tricts have not yet been heard from. The supreme 
 court themselves understand it, as do the Appellate 
 Court of the Second District, as will be apparent from 
 the opinions in Schmidt v. Sinnot, 103 111. 160, decided 
 at the same time with the Johnson Case, and in C, B. 
 & Q. R. R. Co. v. Dougherty, 110 111. 521, and other 
 cases. 
 
 It is frequently said that when a court is divided, 
 the dissenting opinion is often the most satisfactory. 
 This is certainly true of the dissenting portion of the 
 concurring opinion of Mr. Justice Dickey, the concur- 
 ring portion of which has been discussed in the preced- 
 ing chapter, in the case under review. The substance 
 
THE JOHNSON CASE. 143 
 
 of that opinion is, that the term "negligence," as 
 used in the opinions of the court, must be taken in its 
 popular sense as meaning "fault," "want of ordinary- 
 care," and would be so understood by jurymen, and 
 that, as used in stating the doctrine of comparative 
 negligence, slight negligence means a slight want of 
 ordinary care, and gross negligence a gross want of 
 ordinary care. In this opinion the learned judge is 
 sustained by at least one hundred decisions of the 
 supreme court, commencing with the Grimes Case 
 and ending with the last volume of the Illinois Re- 
 ports. 
 
 In Grimes' Case, 13 111. 585, as before shown, Mr. 
 Justice Caton, in delivering the opinion of the court, 
 declared that "the plaintiff is only bound to show that 
 the injury was produced by the negligence of the de- 
 fendant, and that he exercised ordinary care or dili- 
 gence in endeavoring to avoid it." The instruction 
 offered in that case was, that if " the injury done to the 
 plaintiff's horse was the result of the fault or negli- 
 gence of the plaintiff, or the fault or negligence of 
 both the plaintiff and defendants, without any inten- 
 tional wrong on the part of the defendants, then the 
 plaintiff cannot recover." And of this the court say : 
 
 " The substance of the instruction was, that if the plaintiff 
 alone was in fault, or if both parties were equally in fault, the 
 plaintiff could not recover. This, certainly, is the rule of law, 
 even though the plaintiff was only bound to use ordinary care; 
 for, if both used ordinary care, then the misfortune was an ac- 
 cident, without the fault of either, and the loss must rest 
 where the misfortune placed it." 
 
 In the Jacobs Case, 20 111. 478, Mr. Justice Breese, 
 in delivering the opinion of the court, announcing the 
 doctrine of comparative negligence, after commenting 
 on previous decisions, says : 
 
144 COMPARATIVE NEGLIGENCE. 
 
 " Although these cases do not distinctly avow this doctrine 
 in terms, there is a vein of it very perceptible running through 
 very many of them, as where there are faults on both sides, the 
 plaintiff shall recover, his fault being to be measured by the de- 
 fendant's negligence." 
 
 In Great Western R. R. Co. v. Haworth, 39 111. 347, 
 Mr. Justice Walker, in delivering the opinion of the 
 court, says : 
 
 " As negligence is the opposite of care and prudence — is 
 the omission to use the means reasonably necessary to avoid in- 
 jury to others, it is proper that such questions should be left to 
 practical minds to determine whether a duty has been omitted, 
 and, if so, whether under the circumstances it constitutes 
 slight or gross negligence." 
 
 This definition was approved in C. & A. R. R. Co. v. 
 Pennell, 94 111. 448 ; in Pennsylvania Co. v. Conlan, 
 101 111. 93, and again in the Johnson Case. In C, B. 
 & Q. R. R. Co. v. Stumps, 55 111. 374, Mr. Justice Shel- 
 don, in delivering the opinion of the court, says : 
 
 " Negligence is the omission of the means reasonably ne- 
 cessary, not absolutely necessary, to avoid injury to others." 
 
 In T., P. & W. R'y Co. v. Bray, 57 111. 514, Mr. Jus- 
 tice Walker, in delivering the opinion of the court, 
 speaking of an instruction, says : 
 
 " It tells the jury that if the engine-driver could, by the 
 use of ordinary skill and prudence, have seen the cows, and by 
 the same kind of care could have avoided the injury, a failure 
 to do so would be negligence. This leaves it to the jury to say 
 what is ordinary skill and prudence in seeing the animals, and 
 what would have been ordinary care in stopping the train be- 
 fore it reached the cows. The entire question of care, skill 
 and prudence was left to the jury. The court only said, as it 
 unquestionably might, that the omission of care and prudence 
 was negligence. Prudence and care are the opposite of negli- 
 gence. ' To use care is to avoid negligence, and to omit the use 
 of care is to be guilty of negligence." 
 
THE JOHNSON CASE. 145 
 
 In Warner v. Dunavan, 23 111. 380, Mr. Justice Ca- 
 ton, in delivering the opinion of the court, in answer 
 to the objection that an instruction contained the 
 term "want of care," instead of "want of proper 
 care," says : 
 
 " Its fair meaning is, that the defendant was liable, if the 
 hogs were lost for the want of reasonable and ordinary care 
 bestowed upon them by him. Such is the meaning of the word 
 ' care,' as here used. And so it would be understood by reasonable 
 and intelligent men. But few instructions are so drawn that a 
 hypercritical reader may not find some fault, or to which some 
 further explanations might not be given, which would make 
 the real meaning more full or apparent to the uninformed. 
 Want of care means want of reasonable and proper care. 
 Those words are implied and understood by the ordinarily intelli- 
 gent reader or hearer. But few sentences are ever framed in our 
 language where some words are not implied, and especially is it 
 so in the composition of our ancient law-writers, whose ideas 
 are conveyed in the fewest possible words, and it is for this pe- 
 culiarity that their writings have been so universally and justly 
 admired." 
 
 In Murray v. McLean, 57 111. 380, Mr. Justice Shel- 
 don, in delivering the opinion of the court, says : 
 
 " We fail to discover from the evidence any want of ordinary 
 care, a reasonable regard for the safety of others, and prudence 
 on the part of the appellants." -And further on he says : "And 
 while we fail to find any culpable negligence on the part of the 
 appellants, was the deceased himself in the exercise of due care 
 and caution at the time of receiving the injury?" 
 
 It is useless to further multiply quotations of this 
 kind. Let the reader examine those hereinbefore 
 made from the opinions of the supreme court, and he 
 will find that in nearly every one of them the court 
 have evidently used the term " negligence " in its popu- 
 lar sense. It is, moreover, safe to say that, among all 
 the cases decided by the court upon the subject of 
 
 10 
 
146 COMPARATIVE NEGLIGENCE. 
 
 negligence, not to exceed ten can be found in which 
 the term has been used in its so-called " legal sense." 
 Indeed, until the decision of the Johnson Case, it 
 was never assumed that jurors were so familiar with 
 Story's work on Bailments as to fully understand the 
 difference between the "legal" and the "popular" 
 signification of the term. The reasoning of the court 
 in that case presupposes such knowledge on the part 
 of jurors, for, without such information, how can they 
 be made to comprehend the meaning of instructions? 
 Take, for instance, the state of affairs related by the 
 Appellate Court of the First District, in First National 
 Bank v. Bitenmiller, 14 Brad. 26, quoted supra, where 
 the jury were told "that if the plaintiff was exercising 
 ordinary and usual care and prudence, the defendant 
 was liable, if the defendant was guilty of negligence." 
 How could any juryman unfamiliar with Story on 
 Bailments understand this language to mean what the 
 appellate court declare it to mean, that "if the 
 plaintiff was guilty of slight negligence, and the de- 
 fendant was only guilty of equally slight negligence, 
 the plaintiff was entitled to recover"? 
 
 It would, perhaps, be a little difficult to frame an 
 instruction which would meet the entire approval of 
 the Appellate Court of the First District. At least, 
 such would be the probable conclusion of any lawyer 
 who reads Bradwell's Reports. But very likely the 
 following would be satisfactory: If the jury be- 
 lieve, from the evidence, that the plaintiff was ex- 
 ercising great or extraordinary care and diligence, 
 and that the defendant was guilty of ordinary negli- 
 gence or the want of ordinary care or diligence, the 
 verdict should be for the plaintiff. 
 
 According to the same court, the doctrine of com- 
 parative negligence might be elaborately stated as 
 follows: If the plaintiff and defendant were both 
 
RECAPITULATION. 147 
 
 guilty of negligence, but the plaintiff's negligence was 
 slight, or a want of great diligence, and the defend- 
 ant's negligence was gross, or a want of slight dili- 
 gence, and the plaintiff's negligence was slight and 
 that of the defendant gross when compared with each 
 other, such slight negligence on the part of plain- 
 tiff will not bar a recovery ; but, as the comparison is 
 of the essence of the doctrine of comparative negli- 
 gence, if, upon comparison, the slight negligence of 
 the plaintiff and the gross negligence of the defend- 
 ant should turn out to be slight and ordinary, or ordi- 
 nary and gross, or gross and slight, as compared with 
 each other, then there can be no recovery by the 
 plaintiff. See Moody v. Peterson, 11 Brad. 185. 
 
 To briefly recapitulate, then, an examination of 
 the decisions of the supreme court shows the follow- 
 ing facts : 
 
 First. Before the adoption of the doctrine of com- 
 parative negligence, a plaintiff, who had himself 
 exercised ordinary care, could recover of a defendant 
 who had not exercised ordinary care ; but the failure 
 of a plaintiff to exercise ordinary care was a bar to a 
 recovery, unless it appeared the exercise of such care 
 would not have avoided the injury, or unless the 
 defendant, after becoming aware of the plaintiff's 
 situation, failed to exercise ordinary care to avoid 
 injuring him. . 
 
 Second. The doctrine of comparative negligence 
 was adopted for the benefit of the plaintiff, to mitigate 
 the above rule and to permit him to recover, when, 
 under that rule, he could not have recovered. 
 
 Third. In stating the doctrine, the court declared 
 that if the plaintiff had been guilty of negligence, 
 there could be no recovery, unless he had been so 
 much less culpable as to incline the balance in his 
 favor, or unless the negligence of the defendant had 
 
148 COMPARATIVE NEGLIGENCE. 
 
 been more gross, or of a higher or far greater degree, or 
 greatly in excess, or still more gross and willful. When 
 4hese statements of it were adopted by the circuit 
 courts, they were held bad, and the rule declared to 
 be that the plaintiff could not recover unless his 
 negligence was slight as compared with that of the 
 defendant. When this latter statement of it was also 
 followed by the circuit courts, it was adjudged incorrect, 
 and the rule declared to be that a plaintiff, if guilty of 
 negligence, could not recover unless his negligence 
 was slight and that of the defendant gross in com- 
 parison with each other. 
 
 Fourth. The court, after declaring in many cases 
 and in unmistakable terms that a plaintiff who failed 
 to exercise ordinary care might still recover if his 
 negligence was slight and that of the defendant gross 
 when compared with each other, finally decided that 
 the failure of a plaintiff to exercise ordinary care was 
 a bar to a recovery ; that "ordinary care" and "slight 
 negligence" are interconvertible terms, and that a 
 plaintiff guilty of slight negligence, or, in other words, 
 exercising ordinary care, and by so doing contributing 
 to his injury, can only recover when injured by the 
 gross negligence of the defendant. 
 
 Fifth. The court has also decided that if the evi- 
 dence tends to prove negligence on the part of the 
 plaintiff, it is error not to submit to the jury the ques- 
 tion of comparative negligence, and that, though the 
 evidence may show palpable negligence on the part of 
 the defendant, yet if it does not tend to show gross 
 negligence, it is error to submit to the jury the ques- 
 tion of comparative negligence, thus making it incum- 
 bent upon the circuit court, before instructing the jury, 
 to determine what the facts are, and, in the great 
 majority of cases, making it reasonably certain that, 
 whatever may be the instruction given, either the 
 
CONCLUSION. 149 
 
 appellate or the supreme court will reverse the judg- 
 ment. 
 
 Such is, in brief, an outline of the history of the 
 birth and development of the doctrine of comparative 
 negligence. To the student of the law it is an inter- 
 esting subject, and the more carefully he reflects upon 
 it, the more thoroughly will he appreciate the force 
 of the language used by Lord Coke in the seventeenth 
 century, when he said : 
 
 " Our student shall observe that the knowledge of the law 
 is like a deep well, out of which each man draweth according to 
 the strength of his understanding. He that reacheth deepest, 
 he seeth the amiable and admirable secrets of the law, wherein, I 
 assure you, the sages of the law in former times have had the 
 deepest reach. And as the bucket in the depth is easily drawn 
 to the uppermost part of the water (for nullum elementum in 
 suo proprio loco est grave), but take it from the water, it cannot 
 be drawn up but with great difficulty ; so, albeit, beginnings of 
 this study seem difficult, yet when the professor of the law can 
 dive into the depth, it is delightful, easy, and without any heavy 
 burthen, so long as he keep himself in his own proper element." 
 
CHAPTER III. 
 
 THE BURDEN OF PROOF. 
 
 All courts hold, that a want of proper care On the 
 part of the plaintiff or person injured directly contrib- 
 uting to the injury will bar an action for negligence ; 
 but, as to whether the burden of proving due care 
 should be upon the plaintiff, or the burden of proving 
 the contrary upon the defendant, the decisions of 
 courts are not uniform. Shearman and Redfield, in 
 their work on Negligence, section 44, after having 
 stated the rulings of different courts, advocate the rule 
 making negligence on the part of the plaintiff, or 
 person injured, a mere matter of defense, to be proven 
 affirmatively by the defendant, though it may, of 
 course, be inferred from the circumstances proved by 
 the plaintiff, and after enumerating a large number of 
 negative circumstances, which a plaintiff is never 
 required to prove, they say : 
 
 " The reason why the plaintiff is not required to prove these 
 negative circumstances is that they are presumed, as in accord- 
 ance with the natural order and general state of things ; and, 
 we think, there is just as well established a presumption that 
 every person uses ordinary care. Certainly, that presumption 
 has been always held to exist in favor of a defendant, and there 
 can be no good reason for making a distinction unfavorable to 
 plaintiffs. Such a presumption seems, indeed, almost necessary, 
 since presumptions are founded upon the occurrence of the facts 
 presumed in the majority of cases, and it would be a ccntradic- 
 
 150 ' 
 
THE BURDEN OP PROOF. 151 
 
 tion in terms to say that the majority of men in a civilized 
 community do not take ordinary care of themselves." 
 
 The Supreme Court of Illinois have held, in one class 
 of cases, that the burden of proof is upon the plaintiff 
 to show that he, or the person injured, exercised due 
 care, and in another class, that contributory negligence 
 is a matter of defense, and the burden of proving it is 
 upon the defendant. Quotations will be made from 
 cases of each of these classes. 
 
 In Dyer v. Talcott, 16 111. 300, Mr. Justice Caton, in 
 delivering the opinion of the court, says : 
 
 " The court below undoubtedly erred in refusing to instruct 
 the jury as requested by the defendant below. That request 
 was as follows: 'That the burthen of proof, in this action, is 
 upon the plaintiff, to show not only that the defendant was 
 guilty of negligence, but that he himself was not guilty of 
 negligence or carelessness.' In the case of the Aurora Branch 
 Railroad Company v. Grimes, 13 111. 585, this court had occasion 
 to examine the question here presented with some care, and the 
 rule there laid down is, that the burthen of proof is on the 
 plaintiff, to show that he exercised due eare and caution, or that 
 his own negligence did not contribute to produce the injury 
 complained of, as well as that the injury was produced by the 
 negligence of the defendant, and that is the precise question 
 involved in this instruction, and which the court refused to 
 give." 
 
 In Kepperly v. Ramsden, 83 111. 357, Mr. Justice 
 Scott, in delivering the opinion of the court, says: 
 
 " Before any recovery can be had, it is incumbent on plain- 
 tiff to show she had herself been in the observance of due care 
 for her personal safety. That being the law, the court ought 
 to have given the third instruction asked by defendant, 
 which declares the burden of proving that fact was upon her. 
 Other instructions given state the proposition she was bound 
 to observe due or ordinary care; but none of them declare, as 
 the law is, the burden of proving that fact is on the plaintiff." 
 
152 THE BURDEN OF PROOF. 
 
 The same rule is laid down in I. & St. L. R. R. Co. v. 
 Evans, 88 111. 64, from which a quotation will be made 
 in a subsequent portion of this chapter. 
 
 In C, B. & Q. R. R. Co. v. Harwood, 90 111. 429, Mr. 
 Justice Scholfield, in delivering the opinion of the 
 court, says: 
 
 " The gross negligence of the defendant is as indispensable 
 an element in the rule as the slight negligence of the deceased; 
 and it appearing from the evidence that there is contributive neg- 
 ligence on the part of the plaintiff or the deceased, it is for the 
 jury to determine, from all the evidence, the relative degrees of 
 the negligence of the parties, and unless they shall be satisfied 
 that of the plaintiff or deceased is slight and that of the defendant 
 gross in comparison with each other, there can be no recovery. 
 The onus, in establishing the relative degrees of negligence, is 
 not thrown on the defendant, as is assumed by the instruction. 
 Indianapolis & St. Louis Railroad Co. v. Evans, 88 111. 63. 
 Neither party, in the first instance, is assumed to have been 
 negligent. The negligence must be proved, and unless it appears 
 from the proof that the plaintiff's case, under all the evidence, 
 is proved as alleged, there can be no recovery. Indianapolis & 
 St. Louis Railroad Co. v. Evans, supra." 
 
 There is a seeming inconsistency in the various 
 statements in the above opinion. It declares, in effect, 
 that the burden is upon the plaintiff to prove his case 
 as alleged, that is, due care on his part and negligence 
 on the part of the defendant. But it also declares that 
 "neither party, in the first instance, is assumed to have 
 been negligent." If that be true, why js the plaintiff 
 required to produce evidence to prove due care on his 
 part, when, in the first instance, and without any 
 proof, it is assumed that he was not negligent ? 
 
 The same rule is laid down in numerous other 
 cases, of which it is only deemed necessary to quote 
 from three, in which the rule is applied in actions 
 brought for injuries resulting in death. 
 
THE BURDEN OF PROOF. 153 
 
 In C, B. & Q. R. R. Co. v. Gregory, 58 111. 278, Mr. 
 Justice Scott, in delivering the opinion of the court, 
 
 says: 
 
 " But it is insisted there is no evidence that the deceased 
 was in the exercise of due care and caution at the time of the 
 casualty. If it is meant that there is no direct testimony bear- 
 ing on that question, it may be conceded. But are there no 
 facts and circumstances in this case, illustrative of the conduct 
 of the deceased, equally strong and convincing as would be 
 direct testimony itself ? The law only requires the highest 
 proof of which the case is susceptible, or that can reasonably 
 be made. It does not require impossible things. What would 
 amount to sufficient proof in one case might be deemed insuffi- 
 cient in another. It would be exceedingly difficult to lay down 
 any rale of universal application, and each case must therefore 
 rest upon its own facts and circumstances. 
 
 " No one saw the fatal accident, in this instance, and conse- 
 quently there was no one to detail the particulars. The lips of 
 the party injured have been sealed in death, and, at the fatal mo- 
 ment, the attention of his only companion was turned in another 
 direction. The appellee has produced the only and the highest 
 possible evidence of which the nature of the case would admit; 
 but the evidence is not silent- as to the manner of Bennett's 
 death, or as to the degree of care used by him. There is evi- 
 dence that enlightens both inquiries. It is true the evidence is 
 of a circumstantial character, but it is none the less convincing 
 for that reason. * * * Ordinarily, when such accidents occur, 
 there are living witnesses to detail the particulars. Undoubt- 
 edly the general rule is, that it must affirmatively appear that 
 the injured party was in the exercise of due care and caution. 
 This material fact may be made to appear by circumstantial as 
 well as by direct evidence. It is immaterial how the proof is 
 made, so the fact is made to distinctly appear. In this case the* 
 evidence is circumstantial, and consists of facts and circum- 
 stances developed, and we cannot say that the evidence is not 
 sufficiently strong to warrant the conclusion that the deceased 
 was in the exercise of due care and caution." 
 
154 THE BURDEN OF PROOF. 
 
 In C, B. & Q. E. R. Co. v. Van Patten, 74 111. 94, Mr. 
 Justice Scholfield, in delivering the opinion of the 
 court, among other things, says : 
 
 " The only question, then, was, whether the defendant was 
 guilty of a degree of negligence in comparison with which this 
 negligence of the intestate was slight. This was to he deter- 
 mined from the evidence alone. There was no room to indulge 
 in presumptions of what the intestate did or did not do, for his 
 acts were clearly and fully in proof before the jury. Neverthe- 
 less, the court, by the fifth instruction given at the instance of 
 the plaintiff, told the jury : 
 
 " ' The law presumes the deceased, in approaching the mill 
 crossing, exercised proper care and prudence, and unless the 
 jury believe, from the evidence, that the deceased did not exer- 
 cise care and prudence in approaching said crossing, he cannot 
 be regarded as guilty of negligence.' 
 
 '• It may be, if there had been simply evidence of the de- 
 fendant's negligence resulting in the injury complained of, and 
 no evidence of what the intestate's conduct was, this instruction 
 would have been unobjectionable. But in view of the evidence 
 as it was, the tendency of the instruction was to mislead, and 
 we doubt not it did mislead, the jury. They must have under- 
 stood it applied to the evidence before them, and, notwithstand- 
 ing there was clear proof of the plaintiff's negligence, still it must 
 be considered with reference to the legal presumption that he 
 was not negligent. When there is clear and incontestable proof 
 of a fact, no presumptions can be indulged except such as arise 
 from the proof. How much or whether any evidence was 
 sufficient, in the estimation of the jury, to overcome this legal 
 presumption that the intestate was not negligent, under th'e pe- 
 culiar form of the instruction, can, of course, only be conjec- 
 tured." 
 
 . In C, R. I. & P. R'y Co. v. Clark, 108 111. 117, Mr. 
 Justice Walker, in delivering the opinion of the court, 
 
 says : 
 
 " It is first insisted that the circuit court erred in admitting 
 evidence of the habits of deceased as to care, prudence and so- 
 
THE BURDEN OF PROOF. 155 
 
 briety. Appellee, in her declaration, averred, as she was required 
 to do, that deceased was in the exercise of due care at the time 
 he sustained the injury of which he died, and as no person was 
 present, or knew how the accident occurred, we think this evi- 
 dence tended to prove that averment. If he was habitually 
 prudent, cautious and temperate, it tended to prove he was so 
 at the time of the injury, which, with the instinct of self-pres- 
 ervation, would be evidence for the consideration of the jury in 
 determining whether he was in the exercise of care. Had 
 there been witnesses who saw the infliction of the injury, 
 the jury could then have determined from such evidence whether 
 he was careful or negligent, and in such a case this evidence 
 would not be admissible. When there are no witnesses 
 to describe such an occurrence, the defendant would surely have 
 the right to prove the person was habitually rash, imprudent 
 and intemperate, to repel the presumption that he was in the 
 exercise of proper care at the time he received the injury. If 
 evidence is admissible for any purpose, it must be received, 
 and the party against whom it is admitted, if it tends to mislead 
 on some other question, is entitled to have it limited, by instruc- 
 tion, to the purpose for which it is admissible." 
 
 Of the class of cases in which contributory negli- 
 gence is held to be a matter of defense, the burden of 
 proving which is upon the defendant, it will be sum- , 
 cient to quote from two : 
 
 In Ewing v. G. & A. R. R. Co., 72 111. 26, the action 
 was brought by the plaintiff to recover damages from 
 the railroad company for the killing of a cow, and he 
 relied upon the act of February 14, 1855, relating to 
 the duties and liabilities of railroad companies, which 
 declared that railroad companies failing to erect and 
 maintain fences, as therein required, shall be liable for 
 all damages which shall be done by the agents or 
 engines of such companies to any cattle, etc., upon its 
 road. The defendant, as a defense, relied upon the 
 violation by the plaintiff of the law prohibiting domes- 
 tic animals from running at large. Mr. Justice Schol- 
 
156 THE BURDEN OF PROOF. 
 
 field, in delivering the opinion of the court, after stat- 
 ing the facts and citing prior decisions of the court, 
 
 says : 
 
 " Consistently, then, with these cases, we must hold that the 
 fact the plaintiff's cow was suffered to be at large in violation of 
 law, formed no justification or excuse for the defendant's neglect 
 to erect and maintain necessary fences, and that, being negligent 
 in this respect, it was bound to the use of every reasonable 
 means within its power to avoid the infliction of injury. 
 
 " We may concede that the violation of the statute prevent- 
 ing domestic animals from running at large is evidence of negli- 
 gence when considered only as an abstract question, but the 
 negligence of the plaintiff, of which the defendant can avail in 
 a suit like the present, must be contributive ; that is, such that 
 the natural and probable consequence of the negligent act tended 
 to produce the injury complained of, and its effect in preventing a 
 recovery must be determined by comparison with the negligence 
 of the defendant. Thus, in St. Louis, Alton & Terre Haute Rail- 
 road Co. v. Todd, supra, it was said : ' But the rule of this court 
 is, that negligence is relative, and that a plaintiff, although 
 guilty of negligence which may have contributed to the injury, 
 may hold the defendant liable if he has been guilty of a higher 
 degree of negligence, amounting to willful injury. 1 
 
 " Whether, therefore, the fact that plaintiff permitted his 
 cow to run at large, contrary to law, was contributive negligence, 
 depended upon whether he did so under such circumstances that 
 the natural and probable consequence of his act was, that the 
 cow should go upon the defendant's track, as she did ; or whether 
 her going there was the result of accidental circumstances 
 which could not reasonably have been foreseen or anticipated. 
 It is not sufficient to say that the act of permitting her to run 
 at large directly contributed to the act, merely because if she 
 had been kept within an enclosure she could not have got upon 
 the track, for the same logic would prove the plaintiff guilty of 
 contributive negligence by the simple act of owning a cow. It is 
 the proximate and not the remote cause that is to be considered. 
 This, then, is purely a question of fact, as is also the question 
 of the comparative negligence of the plaintiff and defendant, to 
 
THE BURDEN OP PROOF. 157 
 
 be determined by the jury from all the evidence ; and the court, 
 in stating that permitting the cow to run at large, contrary to 
 law, was negligence, clearly usurped the province of the jury. 
 It may or may not have been negligence, in the sense in which 
 alone the question was important in the determination of the 
 case." 
 
 In C. & St. L. R. R. Co. v. Woolsey, 85 111. 373, the 
 same learned judge, in delivering the opinion of the 
 court, says : 
 
 " The only remaining question discussed is settled against 
 appellant by Ewing v. The Chicago & Alton Railroad Co., 72 111. 
 25. Appellant insists that sec. 1, chap. 8, Rev. Stat. 1874, pro- 
 hibits the owner from suffering his cattle to run at large, and 
 that, therefore, before appellant can be. made liable for killing 
 the cow and calf, it must be proved that the killing resulted from 
 the negligence of appellant's employes in operating its train. In 
 the case cited, we held, the fact that the owner of stock permits it 
 to run at large, in violation of the act prohibiting domestic ani- 
 mals from running at large, does not relieve railroad companies 
 from their duty to fence their roads, or their liability for stock 
 injured in consequence of their failure to do so ; that, in a suit 
 against a railroad company for stock killed or injured in conse- 
 quence of the neglect of the company to fence its road, where it 
 appears such stock was permitted to run at large in violation of 
 law, the question whether the owner has been guilty of contribu- 
 tory negligence in permitting them to run at large is one of fact, 
 to be determined by the jury from the circumstances of the case, 
 and that it is not sufficient to charge a plaintiff with contributory 
 negligence, in a suit against a railroad company for injury to 
 stock, to simply show that the owner permitted the stock to run 
 at large in violation of law ; but it must appear that he did 
 so under such circumstances that the natural and probable con- 
 sequence of doing so. was, that the stock would go upon the 
 railroad track and be injured. 
 
 " The burden of showing contributory negligence in such 
 cases, where it does not appear otherwise, is upon the railroad 
 company ; and there is no evidence before us tending to prove 
 
158 THE BURDEN OF PROOF. 
 
 such negligence. It does not appear how the cow and calf came 
 to be out of appellee's enclosure, or that he had any knowledge, 
 before they were injured, that they were out." 
 
 The distinction between these two classes of cases 
 would seem to be this, that in a case of one class the 
 plaintiff bases his action upon negligence consisting in 
 the breach by the defendant of a common law duty, 
 or of a duty imposed by a statute which does not ex- 
 pressly declare such breach presumptive evidence of 
 negligence causing the injury ; while in a case of the 
 other class the action is based upon negligence con- 
 sisting in a breach by the defendant of a statutory 
 duty, which breach the statute declares shall be pre- 
 sumed to be the cause of the injury. In the one case 
 the conclusion of fact is drawn by the jury, and in the 
 other it is fixed by the statute. Yet, in either case, 
 contributory negligence on the part of the plaintiff, or 
 person injured, is a bar to the action. It is not per- 
 ceived what sound reason there can be for putting the 
 burden of proof in the one case upon the plaintiff and 
 in the other upon the defendant. Certainly a jury 
 of intelligent men would be astonished at being told 
 that a person injured by a passenger train running at 
 the rate of forty miles an hour through a city, where 
 there was no ordinance limiting speed, was presumed 
 to be negligent, while one injured by a train running 
 twelve miles an hour through a city, where there was 
 such an ordinance, was presumed to be careful until 
 the contrary appeared. Besides, it would be a matter 
 of some difficulty to properly instruct a jury in many 
 cases, and the instructions, even when properly drawn, 
 would be calculated to mislead and confuse rather than 
 enlighten. Thus, if a declaration alleged negligence 
 on the part of a defendant, first, in failing to station a 
 flagman at a crossing, and, second, in running a 
 train at a rate of speed prohibited by ordinance, it 
 
THE BURDEN OP PROOF. 159 
 
 would be necessary to instruct the jury that under 
 one count the burden was upon the plaintiff to show 
 due care, and under the other the burden was upon 
 the defendant to show contributory negligence. 
 
 It may be that there are cases to be found in the 
 Illinois Reports in which it is held that the burden of 
 proof is upon the plaintiff to show due care on his 
 part, even where the negligence of the defendant con- 
 sists of a breach of duty imposed by statute which 
 makes such breach presumptively the cause of the 
 injury. In view of the conflicting decisions of the 
 court upon other questions, it would not be strange if 
 there were found to be a conflict of authority upon this 
 pdint also. However, it can hardly be supposed any 
 such decision could be made. When a statute expressly 
 declares that a certain act or omission on the 
 part of a defendant shall be presumed to be the cause 
 of an injury shown to have been inflicted, it is not per- 
 ceived that any species of sound reasoning could cast 
 the burden of proof upon the plaintiff to show that 
 such presumption was warranted by the facts as well 
 as by the law. It is sufficient that the law creates the 
 presumption, and it should be for the defendant to show 
 cause why such presumption should not be held con- 
 clusive against him. 
 
 Whether the burden of proof as to contributory 
 negligence is upon the plaintiff or upon the defendant 
 may be said to be of little practical importance so far 
 as affecting the finding of the jury is concerned, for 
 cases in which the evidence upon that question is 
 equally balanced are of extremely rare occurrence. 
 Tet it is of vast importance to litigants to know pre- 
 cisely what the rule is, for an erroneous instruction as 
 to the burden of proof is always deemed sufficient 
 ground for the reversal of a judgment, no matter how 
 evident it may be that it could not have affected the 
 
160 , THE BURDEN OP PROOF. 
 
 verdict. In actions brought to recover damages for 
 injuries resulting in death, however, the rule placing 
 the burden of proof upon the plaintiff may operate un- 
 justly. For, although it has been held in the Gregory 
 Case, supra, that the care exercised by the deceased 
 may be proven, as any other fact, by circumstantial 
 evidence, and in the Clark Case, supra, that where there 
 are no eye-witnesses to an injury, evidence as to the 
 habits of the deceased may go to the jury on the ques- 
 tion of the care exercised ; yet a case may occur 
 where no such proof can be produced, and, although 
 there might be abundant evidence of palpable negli- 
 gence on the part of the defendant, a recovery could 
 not be had. It is true that in the Van Patten Case, 
 supra, the court intimate that, in the absence of all 
 evidence as to the conduct of the person killed, due 
 care on his part might be presumed ; yet that state- 
 ment of the court must be regarded as mere dic- 
 tum, and besides, it is wholly inconsistent with the idea 
 that the burden of proof is upon the plaintiff, and is, 
 therefore, in conflict with the other decisions of the 
 court. It is contrary to sound reason to hold that the 
 party upon whom the law casts the burden of proof 
 may dispense with all evidence and compel the oppo- 
 site party to show affirmatively that there is no cause 
 of action. 
 
 Unsatisfactory as are these decisions upon the bur- 
 den of proof, they are no more so than those upon 
 the question whether the plaintiff must allege in his 
 declaration that he, or the person injured, exercised 
 due care. The form of declaration against the owner 
 of a coach for the negligence of his servants in driving 
 the same against the plaintiff's chaise, which is found 
 in Chitty's Pleadings (Vol. II, p. 710), contains the alle- 
 gation that " the said defendant then and there by his 
 said servant so carelessly and improperly drove, gov- 
 
THE BURDEN 0E PROOF. 161 
 
 erned and directed his said carriage and horses, that 
 by and through the carelessness, negligence and im- 
 proper conduct of the said defendant by his said ser- 
 vant in that behalf, the said carriage of the said 
 defendant, then and there ran and struck with great 
 force and violence upon and against the said carriage 
 of the said plaintiff, and thereby then and there 
 crushed,, broke to pieces and damaged and destroyed 
 the same," etc., but it nowhere alleges that the plain- 
 tiff was in the exercise of due care and caution. 
 Whether, in this state, a declaration is sufficient, when 
 it fails to allege due care on the part of the plaintiff, 
 or person injured, the reader can determine for him- 
 self from the following cases. 
 
 In C, B. & Q. R. R. Co. v. Hazzard, 26 111. 377, Mr. 
 Justice Breese, in delivering the opinion of the court, 
 says: 
 
 " There is no point made here, or in the court below, of the 
 sufficiency of the declaration. The rule being that the plaintiff, 
 in cases like this, must allege and show affirmatively that the 
 defendant was guilty of negligence, and also that he himself 
 exercised proper care, it would seem, on the principles of correct 
 pleading, that his exercise of proper care, as well as the negli- 
 gence of the defendant, should be alleged in the declaration. 
 If both must be proved, both must be alleged. In this respect, 
 then, the declaration was bad-, for there is no averment in it 
 that the plaintiff exercised proper care. The books are full of 
 cases where, in such actions as this, the burden of proof is 
 always held to be. on the plaintiff, that he was himself exercis- 
 ing ordinary care and diligence at the time the accident hap- 
 pened." 
 
 In I. C. R. R. Co. v. Simmons, 38 111. 243, the same 
 learned judge, in delivering the opinion of the court, 
 says : 
 
 "The ease is brought here by appeal, and these points are 
 made by appellant : First, upon the sufficiency of the declara- 
 
162 THE BURDEN OF PROOF. 
 
 tion, it containing no averment that the appellee was without 
 fault, or that he exercised proper care to. avoid the injury. In 
 support of this objection, reference is made to the opinion of 
 this court in the case of the Chicago, Burlington & Quincy 
 Railroad Company v. Hazzard, 26 111. 373. The opinion, as de- 
 livered in that case, sanctions the view here taken by appellant, 
 and the judge who delivered that opinion still believes such is 
 the law in all cases of this description, on the principle, if it is 
 necessary the plaintiff should show that he himself- exercised 
 proper care, it is necessary it should be so alleged in the declara- 
 tion, for, as a general rule, nothing need be proved that is not 
 affirmatively alleged. The point of the sufficiency of the 
 declaration was not made in that case, and the majority of this 
 court are of opinion that the views expressed by the judge who 
 delivered that opinion must be considered on that point as dictum 
 merely." 
 
 In C. & N. W. R'y Co. v. Coss, 73 111. 394, the court, 
 in an opinion delivered by Mr. Justice Walker, say : 
 
 "In a case like the present, whilst it is not necessary that a 
 plaintiff should aver that he was free from all negligence, or had 
 observed due care, still, a declaration will be insufficient if it 
 appear that he was guilty of negligence from the averments." 
 
 But in C, R. I. & P. R'y Co. v. Clark, 108 111. 117, the 
 court, in an opinion delivered by the same learned 
 judge, say : 
 
 " Appellee, in her declaration, averred, as she was required 
 to do, that deceased was in the exercise of due care at the time 
 he sustained the injury of which he died." 
 
 In I. & St. L. R. R. Co. v. Evans, 88 111. 64, Mr. Jus- 
 tice Dickey, in delivering the opinion of the cpurt, 
 
 says: 
 
 " To recover for injuries alleged to have been caused by the 
 negligence of defendant, it is necessary that plaintiff shall 
 allege in the declaration, and prove on the trial, that plain- 
 tiff was exercising due care. The plea of not guilty puts this 
 allegation in issue, and the burden of proving due care on the 
 
THE BURDEN OP PROOF. 163 
 
 part of plaintiff rests upon the plaintiff. It is true/that, in 
 cases where the negligence of defendant is gross, the allega- 
 tion of due care by the plaintiff is regarded as proven where it 
 is shown that the want of care on the part of the plaintiff, if 
 any, is but slight in comparison with the negligence of defendant. 
 The burden of proof, however, is on the plaintiff, even in such 
 case, to establish the freedom of plaintiff from such negligence 
 as would defeat the action." 
 
 In W. h St. L. & P. R'y Go. v. Shacklet, 105 111 1 . 370, 
 Mr. Justice Mulkey, in delivering the opinion of the 
 court, says : 
 
 " The declaration in this case expressly alleges that ' the said 
 Elijah E. Shacklet was then and there riding on one of the engines 
 and trains of the said Union Railway & Transit Company, along 
 and on said track, with due care and diligence,' etc. The cases 
 are not in accord as to whether the plaintiff was bound to make 
 this averment in order to entitle him to recover. According to 
 many respectable authorities, the plaintiff's own negligence is 
 matter of defense, and properly comes from the other side, and 
 hence the plaintiff is not bound to negative it in his declaration; 
 and perhaps this is the better rule, and is more in consequence 
 with the philosophy of pleading and the general analogies of 
 the law. Yet it cannot be denied that other respectable authori- 
 ties maintain the contrary view, and precedents of declarations 
 in cases of this kind are undoubtedly to be found which contain 
 the averment that the plaintiff, at the time of the alleged injury, 
 was exercising due care. But whatever may be the true rule 
 in this respect, it must be conceded that when the declaration 
 contains such an averment, and it is traversed by the defend- 
 ant's plea, as was done in this case, the issue thus formed cannot 
 be treated as an immaterial one." 
 
 To hold that due care on the part of the plaintiff 
 need not be averred, but must be proved, or that it must 
 be averred, but may be presumed in the absence of evi- 
 dence, is, in the language of the court with reference 
 to the instructions in the Johnson Case, 103 111. 525, " a 
 manifest attempt to connect discordant propositions, 
 
164 THE BURDEN OF PROOF. 
 
 which always tends to confusion." To hold that a 
 plaintiff must prove that which he need not allege in 
 the declaration is contrary to elementary principles. 
 "Pleading is the statement, in a logical and legal form, 
 of. the facts which constitute the plaintiff's cause of 
 action, or the defendant's ground of defense ; it is the 
 formal mode of alleging that on the record which 
 would be the support of the action, or the defense of 
 the party, in evidence." "In general, whatever cir- 
 cumstances are necessary to constitute the cause of 
 complaint, or the ground of defense, must be stated in 
 the pleadings, and all beyond is surplusage." "A 
 declaration is a specification, in a methodical and legal 
 form, of the circumstances which constitute the plain- 
 tiff's cause of action." " The general requisites of a 
 declaration are * * * secondly, that it contains a state- 
 ment of all the facts necessary in point of law to sus- 
 tain the action, and no more." Chitty's Pleadings, Vol. I, 
 pp. 213, 214, 240, 244. It is apparent from these 
 quotations, and from the precedent above quoted, 
 that it was not necessary, in Chitty's time, at least, 
 for the plaintiff to allege and prove due care on his 
 own part, but that contributory negligence was a 
 matter of defense, to be proven by the defendant. The 
 rule now applied in this state is a modern innovation, 
 and, like many other innovations, has occasioned more 
 harm and derangement of order by its novelty than 
 benefit by its abstract utility. It should be abolished 
 by a statute declaring that, when contributory negli- 
 gence is relied upon as a defense, the burden of prov- 
 ing it shall be upon the defendant. We could then go 
 back to first principles and take a new start. 
 
CHAPTER IV. 
 
 QUESTIONS OF LAW AND QUESTIONS OF FACT. 
 
 Shearman and Redfield, in their work on Negli- 
 gence, section 11, say : 
 
 " The question whether a party has been negligent in a 
 particular case is one of mingled law and fact. It includes, 
 indeed, two questions: (1) Whether a particular act has been 
 performed or omitted, and (2) whether the performance or 
 omission of this act was a breach of a legal duty. The first of 
 these is a pure question of fact, the second a pure ques- 
 tion of law. But it is very difficult to reduce cases to these 
 simple elements. The extent of the defendant's duty is to be 
 determined by a consideration of his circumstances. The law 
 imposes duties upon men according to the circumstances in 
 which they are called to act ; and though the law defines the 
 duty, the question whether the circumstances exist which 
 impose that duty upon a particular person is one of fact. In 
 very many cases the law gives no better definition of negligence 
 than the want of such care as men of ordinary prudence would 
 use under similar circumstances. Of course this raises a 
 question of fact as to what men of this character usually do 
 under the same circumstances. This is a point upon which a 
 jury have a right to pass, even though no evidence of the usage 
 were given; for they may properly determine the question by 
 referring to their own experience and information. Conse- 
 quently a case of this kind must be left to the jury, even if 
 there is no conflict of evidence, unless, indeed, there is evidence 
 enough to decide this point as well as all other questions in the 
 cause. In cases of this kind the courts have sometimes used 
 
 165 
 
166 QUESTIONS OF LAW 
 
 such broad language as to the necessity of leaving the cause to 
 the jury, that it might be inferred that every cause must be so 
 left; but this is not the case. When the facts are clearly set- 
 tled and the course which common prudence dictated can be 
 clearly discerned, the court should decide the case as a matter of 
 law. And it is now well settled in the English courts, and must 
 eventually be held in America, that a mere scintilla of evidence 
 is not enough to go to the jury. There must be evidence upon 
 which reasonable men could reasonably and properly find the 
 fact of negligence, or, in default of this, a nonsuit should be 
 ordered." 
 
 The decisions of the Supreme Court of Illinois as 
 to whether negligence is a question of fact, or a ques- 
 tion of law, are somewhat conflicting. In a large 
 number of cases it is held that negligence is a ques- 
 tion of fact for the determination of the jury from all 
 the circumstances of the particular case, and that the 
 conduct and the acts of the respective parties are 
 merely evidences of the main fact in issue. In a large 
 number of other cases it is held that it is permissible 
 for the court to decide, as a matter of law, that a par- 
 ticular act constitutes negligence per se, and not merely 
 an evidence to be considered by the jury. Each of 
 these two classes of cases will now be briefly con- 
 sidered. 
 
 FIRST CLASS. 
 
 In Galena & Chicago Union Railroad Co. v. Tarwood, 
 17 111. 509, the court below gave the following instruc- 
 tion: 
 
 " That unless the jury believe, from the evidence, that the 
 passenger cars were full, and that it was a part of the contract 
 that the plaintiff should occupy, during the trip, the baggage 
 car, the mere fact that the plaintiff left that car and went into 
 the first-class passenger car, is not of itself such negligence in 
 the plaintiff as to defeat a recovery in this case." 
 
AND QUESTIONS OF FACT. 167 
 
 Of this instruction Mr. Chief -Justice Scates, in 
 delivering the opinion, of the court, says: 
 
 " The fifteenth instruction is erroneous. The facts, or acts 
 of defendant, recited in it are withdrawn from the consid- 
 eration of the jury, and decided by the court, as a question of 
 law, instead of fact. The court say these acts do not constitute 
 negligence or carelessness in defendant. Negligence is a ques- 
 tion of fact and not of law, and the court had no right to deter- 
 mine it. Had the jury found these facts specially — that the 
 passenger cars were not full ; that defendant, being directed by 
 the conductor to the baggage car, went into that car without a 
 special contract for passage on that car, and, after riding some 
 distance on it, left it, and went into the first-class car — without 
 finding that these facts did or did not constitute negligence, 
 under all the circumstances of the case, no court could pro- 
 nounce any judgment of law upon it, for want of completeness. 
 Negligence is the fact to be found. The acts of the party, and 
 the circumstances under which they were done, are not the fact 
 to be found, but are merely evidences of that main fact. The 
 court has only assumed the province of the jury in assuming 
 that such circumstances and acts as are enumerated in the 
 instruction are not sufficient proof of the party's negligence. 
 Had the instruction further assumed that the jury find the con- 
 clusion that the court is made to find, then might the court well 
 have said, the right of action is not barred by those facts." 
 
 In Galena & Chicago Union Railroad Co. v. Dill, 22 
 111. 265, Mr. Justice Walker, in delivering the opinion 
 of the court, says : 
 
 " The question of negligence is one of fact, which must 
 be left to the determination of the jury. It depends to so great 
 an extent upon the surrounding circumstances of each case, 
 that unless it is gross, no rule can be adopted. The jury must 
 necessarily determine from the situation of the parties, and all 
 of the surrounding circumstances, whether there has been negli- 
 gence on either part, or whether the occurrence was purely acci- 
 dental, and without the fault of either party. The court has 
 no authority to determine the fact of negligence, unless it be 
 
168 QUESTIONS OF LAW 
 
 in the non-observance of a positive requirement of law. 
 Whether the failure to ring a bell or sound the whistle is negli- 
 gence is a question of fact for the jury, and could not be so 
 regarded unless its omission occasioned the collision producing 
 the injury. Where such acts are not required by legislative 
 enactment, their omission does not raise a legal inference that the 
 injury resulted from a want of their performance. * * * The 
 instruction should have left it to the jury to say whether the 
 omission to ring the bell or sound the whistle was negligence, 
 which produced the injury, and failing to do so it was error to 
 give it." 
 
 In Great Western E. R. Co. v. Haworth, 39 111. 353, 
 Mr. Justice Walker, in delivering the opinion of the 
 court, says : 
 
 " Negligence is not a legal question, but is one of fact, and 
 must be proved like any other. Juries are intended to be se- 
 lected from intelligent, practical men, who, after hearing the 
 evidence, will be able to determine whether, considering all of 
 the circumstances, the issues have been proved. And, as negli- 
 gence is the opposite of care and prudence — is the omission to 
 use the means reasonably necessary to avoid injury to others — 
 it is proper that such questions should be left to practical minds 
 to determine whether a duty has been omitted, and, if so, 
 whether, under the circumstances, it constitutes slight or gross 
 negligence." 
 
 In C. & A. R. R. Co. v. Pennell, 94 111. 448, Mr. Jus- 
 tice Craig, in delivering the opinion of the court, says : 
 " The third instruction given for the plaintiff was as follows : 
 " ' 3. The use of wood for fuel, in an engine built for and 
 as a coal-burning engine, is negligence, if the jury believe, from 
 the evidence, that the engine was constructed so as to burn coal, 
 and not so constructed as to burn wood with as much safety as 
 coal. But such negligence cannot be such as to render defend- 
 ant liable (if proven), unless it is further proven, to the satis- 
 faction of the jury, that the use of such engine, by burning 
 wood therein, caused the injury complained of in the declara- 
 tion.' 
 
AND QUESTIONS OF FACT. 169 
 
 " Negligence is a question of fact for the jury, and not a 
 question of law. In Great Western Railroad Co. v. Haworth, 
 supra, it was held that negligence is the opposite of care and 
 prudence ; it is the omission to use the means reasonably neces- 
 sary to avoid injury to others, and is not a legal question, but is 
 one of fact, to be proved like any other question. The instruc- 
 tion took the question of fact from the jury — a question which 
 it was their province to determine." 
 
 In Pennsylvania Co. v. Conlan, 101 111. 94, Mr. Jus- 
 tice Scholfield, in delivering the opinion of the court, 
 comments upon certain instructions offered by the 
 defendant, as follows : 
 
 " As to the first and second, it is enough to say the court 
 properly refused them, because they assumed to tell the jury as 
 matters of law, that certain facts per se constituted negligence 
 on the part of the deceased. In Great Western R. R. Co. v. 
 Haworth et al., 39 111. 353, this court ruled, 'negligence is not 
 a legal question, but is one of fact, and must be proved like any 
 other,' and this was followed in Chicago & Alton R. R. Co. v. 
 Pennell, 94 111. 448. Of course this does not mean that the 
 definition of negligence is one of fact, and that the jury shall 
 be left to their own fancies to determine what, in each case, 
 shall be the measure to which the proof shall be applied in de- 
 termining whether there is negligence, but, simply, the general 
 rule being declared as matter of law, the jury must determine 
 whether such facts have been proved as bring the case within 
 that general rule. Thus, in the Haworth Case, supra, negligence 
 was defined to be ' the opposite of care and prudence — the omis- 
 sion to use the means reasonably necessary to avoid injury to 
 others,' and it was left to the jury to determine, from all the 
 evidence, whether the party charged with the negligent act was 
 thus guilty — that is, whether the party had failed to exercise 
 care and prudence, or, in other words, omitted to use the means 
 reasonably necessary to avoid injury to the other party. It is 
 sometimes said that negligence is a mingled question of law and 
 fact. Shearman &Redfield on Negligence (2d ed.), sec. 11. If by 
 this it is meant it is a question of law to determine the rule — 
 that is, the definition of negligence, and a question of fact to 
 
170 QUESTIONS OF LAW 
 
 determine, from the evidence, whether the particular case falls 
 within the rule or definition,— it is entirely in harmony with 
 the rulings of this court in the cases supra. 
 
 "Expressions may frequently be found in opinions of this 
 court, where, under our old Practice Act, we were required to 
 review questions of fact as well as of law, that such and such 
 facts were evidence of negligence. But this is always mere 
 argument — the expression of a conclusion of fact, not of law — 
 from certain other admitted or proved facts. In such cases, and 
 as to such questions, the court is exercising precisely the same 
 function as does a jury in the trial court, only, unlike the jury, 
 giving its reasons for its conclusions ; and it is this blending in 
 such cases, of the distinct and independent functions exercised 
 by court and jury at nisi prius, that has occasionally misled 
 counsel, and induced the belief that the court has declared the 
 result of purely controverted questions of fact as conclusions 
 of law. ' It is the office of the judge to instruct the jury in 
 points of law, — of the jury to decide on matters of fact.' 
 Broom's Maxims (4th ed.), 103, *77." 
 
 In C. & A. E. R. Co. v. Bonifield, 104 111. 224, Mr. 
 Justice Walker, in delivering the opinion of the court, 
 says : 
 
 " It is claimed that alighting from a train in motion is such 
 negligence as to preclude all recovery, whatever the circum- 
 stances. This may be true, and no doubt is, where the com- 
 pany is not in fault, and the train has considerable speed ; but it is 
 not necessarily true where it is a question of comparative negli- 
 gence. A train might be barely in motion — moving so slowly as to 
 be scarcely perceptible on close inspection — when to get off would 
 be attended with no danger whatever. To hold such an act, 
 under such circumstances, gross negligence per se, would find 
 no sanction in reason or justice. It would violate the experi- 
 ence of all persons, and be contrary to the reason of all men. 
 But to leave a train when running at a high rate of speed, as 
 was done in some of the cases to which reference is made in 
 argument, is, and must be, gross negligence. And it may be 
 perilous to get off in the dark when running at a rate of speed 
 that would be safe in the light of day. The value of a certain 
 
AND QUESTIONS OF FACT. 171 
 
 fact ill evidence depends largely on the attendant circumstances. 
 An act which is gross negligence in one case is not in another, 
 owing to modifying circumstances. Then, what acts are negli-. 
 gent must depend upon other acts in each case, and what is said 
 in a case of negligence is with reference to that case. But few 
 acts can be said to be negligent per se, hence stern and unbend- 
 ing rules as to the weight of particular acts as evidence cannot 
 be announced for all cases and under all circumstances. Such 
 rules must necessarily be more or less flexible, or be under many 
 cases confined to the cause being tried. All persons in the pro- 
 fession know that a small circumstance in evidence frequently 
 rightfully changes the result of a trial and recovery. 
 
 "It is the long settled doctrine of this court that negli- 
 gence is a fact the finding of which is clearly within the pro- 
 vince of a jury ; and it is equally as well settled that a question 
 of comparative negligence is as clearly within its province. 
 The legislature has deprived this court of the power of review- 
 ing controverted facts passed upon by a jury. That power has 
 been conferred upon the appellate courts, and we have been de- 
 prived of its exercise. We are compelled to take them as found 
 by those tribunals, and have no discretion in the matter. In 
 this case it was a controverted fact whether the act of deceased 
 in passing from the train at the time was slight negligence, and 
 the negligence of tbe company in starting its train as it did, 
 when compared with that of deceased, was gross. These facts 
 have been found by the jury and the appellate court, and we 
 have no right to disregard their finding." 
 
 In City of Bloomington v. Chamberlain, 104 111. 
 273, Mr. Justice Sheldon, in delivering the opinion of 
 the court, says : 
 
 "Tbe errors assigned are in the refusal of instructions and 
 the admission of evidence. One of the refused instructions 
 asked by defendant was, that if plaintiff knew of the defective 
 condition of the sidewalk, it was her duty to exercise a high 
 degree of care while passing over it. The degree of care which 
 tbe law required the plaintiff to exercise was ordinary care, 
 under all the circumstances of the case. The plaintiff's knowl- 
 edge as to the condition of the sidewalk would be one of such 
 
172 QUESTIONS OF LAW 
 
 circumstances to be considered by the jury in determining 
 whether there had been the exercise of ordinary care. The 
 court did instruct the jury that the law required plaintiff to 
 show that at the time she sustained the injury complained of 
 she was exercising ordinary care and caution, and that if, by 
 the exercise of such care and caution, she would have avoided 
 the danger, they should find for the defendant. We think the 
 instruction given stated the law upon the subject sufficiently 
 favorable for the defendant, and that there is no just ground of 
 complaint in not giving the further instruction which was re- 
 fused. 
 
 . " The tenth refused instruction told the jury, in substance, 
 that the law required the plaintiff to go out into the street and 
 pass around the walk, if she knew it was defective ; and the 
 eleventh, that if plaintiff could have gone out into the street 
 and around the defective sidewalk, and if her failure to 'do so 
 showed a want of ordinary care on her part, the jury should 
 find for the defendant. Clearly the tenth one could not be laid 
 down as a legal proposition. (See City of Aurora v. Hillman, 
 90 111. 61.) All the law that there was embraced in the eleventh 
 refused instruction was, that a want of ordinary care on plaintiff's 
 part would preclude her from recovering, and the jury were so 
 informed in an instruction which was given, as already stated. 
 There could be no error in not repeating the instruction. 
 The present case is quite unlike that of City of Centralia v. 
 Krouse, 64 111. 19, where the sidewalk was in a palpably danger- 
 ous condition. The defect here was, that there were loose 
 boards in the walk, and plaintiff was injured by turning up a 
 loose board, which caused her to fall." 
 
 In I. & St. L. R. E. Co. v. Morgenstern, 106 111. 220, 
 Mr. Justice Craig, in delivering the opinion of the 
 court, says : 
 
 " It is also contended that the deceased, and Bray, the bag- 
 gage-master, were fellow-servants, and upon that account no 
 recovery can be had. In Great Western Railroad Co. v. Ha- 
 worth, 39 111. 346, it was held that negligence is not a legal 
 question, but is one of fact, and must be proved like any other. 
 This was followed by Chicago & Alton Railroad Co. v. Pennell, 
 
AND QUESTIONS OP FACT. 173 
 
 94 111. 448, where the same doctrine was announced. In Penn- 
 sylvania Co. v. Conlan, 101 111. 93, what was said in the cases 
 cited was approved, and it was further held that the definition 
 of negligence was a question of law, and it was a question of 
 fact, to be determined from the evidence, whether the particu- 
 lar case falls within the definition. 
 
 " What has been said in relation to the question of negli- 
 gence may also be said in regard to fellow-servants. The defi- 
 nition of fellow-servants may be a question of law, but it is 
 always a question of fact, to be determined from the evidence, 
 whether a given case falls within that definition." 
 
 From these cases it would seem that 'there ought 
 to be no great difficulty in the way of a circuit judge 
 in distinguishing between questions of law and ques- 
 tions of fact in actions for negligence. The principle 
 announced in the Yarwood Case is, that negligence is 
 a question of fact, that the acts of the parties, and the 
 circumstances under which they were done, are merely 
 evidences bearing upon that main fact, and that it is 
 inadmissible for the court to tell the jury that a particu- 
 lar act, or particular acts, of a party do or do not con- 
 stitute negligence, that being a question for the jury 
 to determine from all the circumstances shown by the 
 evidence. In the Dill Case the rule is held to be quali- 
 fied to the extent, and to that extent only, of permit- 
 ting the court to instruct the jury that the omission to 
 observe the requirements of a statute, such as that 
 which prescribes the ringing of the bell or sounding of 
 the whistle, is negligence. So that the rule may prop- 
 erly be stated to be, that where the act done or omitted 
 is not forbidden or prescribed by statutory enactment, 
 it is for the jury, and not for the court, to say whether 
 the doing or the omission of the act is or is not negli- 
 gence. 
 
 The latter portion of the opinion in the Conlan 
 Case, supra, in effect alleges that such has always been 
 
174 QUESTIONS OF LAW 
 
 the law in this state, and that trial judges and counsel, 
 when they have supposed it to be proper to instruct a 
 jury that such and such facts proved negligence, have 
 entirely misapprehended the supreme court and have 
 mistaken the court's conclusions of fact for conclu- 
 sions of law. It is now proposed to quote from a few 
 of the opinions of the court which, it is alleged, have 
 misled counsel. 
 
 SECOND CLASS. 
 
 In the Pennsylvania Co. v. Rudel, 100 111. 603, the 
 court, in an opinion delivered by Mr. Justice Sheldon, 
 which was filed in the clerk's office on the same day 
 with that in the Conlan Case, says : 
 
 " One of the refused instructions asked by defendant was, 
 that if plaintiff knew of the existence of defendant's east main 
 track at the place of the injury, and that locomotives and trains 
 frequently passed along the same going north, and that plaintiff, 
 before he went upon said track, could have looked for and seen, 
 or have listened for and heard, the approaching train by which 
 he was injured, and that plaintiff did not thus look or listen, 
 and that by reason thereof he failed to avoid the injury, 
 then the jury should find for the defendant. It is insisted this 
 instruction should have been given, in accordance with former 
 decisions of this court upon the subject. Ordinarily such an 
 instruction should be given, according to what this court has 
 often laid down to be the rule in this respect ; but under the 
 special facts and circumstances of this case, we cannot say 
 that it was error to refuse the instruction. There was 
 much in the peculiar circumstances of the case to go in excuse 
 of the taking of such usually necessary precautions as are 
 named in the instruction, before going upon a railroad track." 
 
 Tt is here declared plainly and distinctly that it is 
 a question of law for the court to determine whether 
 a man should listen and look for an approaching train 
 when he is about to cross a track, and that sometimes 
 
AND QUESTIONS OP FACT. 175 
 
 it is the law that he should listen and look and 
 sometimes it is not. How the supreme court could 
 unanimously, and upon the very same day, approve 
 of this opinion and that delivered in the Conlan Case 
 is a question which the reader will be left to solve for 
 himself, it being purely a question of fact. 
 
 In I. C. R. R. Co. v. Goddard, 72 111. 567, the court 
 below refused to give the following instruction asked 
 by the defendant : 
 
 "7. It is the duty of every person, when going upon or 
 across a railroad track, to look in each direction to see if cars 
 are approaching, and a failure to do so amounts to a want of 
 ordinary care." 
 
 Of this the court, in an opinion delivered by Mr. 
 Justice Sheldon, say : 
 
 "As respects the- seventh instruction, this court has repeat- 
 edly said that it is the duty of persons about to cross the track 
 of a railroad, to look about them and see if there is danger. 
 Chicago & Alton Railroad Co. v. Gretzner, supra ; Manly's Case, 
 supra ; Chicago & Alton Railroad Co. v. Jacobs, 63 111. 178 ; 
 Chicago, Rock Island & Pacific Railroad Co. v. Bell, 70 id.' 102 ; 
 Illinois Central Railroad Co. v. Godfrey, 71 id. 500 ; and in 
 Shearman and Redfield on Negligence, sec. 488, it is laid down 
 that, as a general though not invariable rule, it is culpable -neg- 
 ligence for anyone to cross the track of a railroad without 
 looking in every direction that the rails run, to make sure that 
 the road is clear. We see nothing in the facts of this case to 
 except it from the general rule, and are of opinion the instruc- 
 tion should have been given." i 
 
 Numerous other cases might be cited where the 
 same ruling has been made, not as a mere conclusion 
 of fact, but as a conclusion of law ; but it would be a 
 work of supererogation to quote from them. The 
 reader will find a large number cited in C, B. & Q. R. 
 R. Co. v. Damerell, 81 111. 454. It is sufficient to pause 
 
176 QUESTIONS OF LAW 
 
 for a moment and contrast the rule thus laid down 
 with the doctrine announced in the Dill Case, supra. 
 In the latter case it is held that, in the absence of any 
 statutory requirement, it is a question of fact for the 
 jury to determine, whether a railroad company should 
 ring a bell or sound a whistle on approaching a rail- 
 way crossing, while in the Goddard Case it is held to be 
 a question of law for the court to determine, whether 
 an individual should look up and down a railroad track 
 before attempting to cross. In each case there was a 
 judgment rendered in the court below against a rail- 
 road company, and in each the judgment was reversed; 
 in one, because the court below decided that negli- 
 gence was a question of law, and in the other because 
 it decided that negligence was a question of fact. 
 
 The doctrine announced in the Dill Case was, how- 
 ever, somewhat modified, or perhaps -explained, for the 
 benefit of defendants, in a number of cases, among 
 which was that of C, B. & Q. R. R. Co. v. Van Patten, 64 
 111. 514, in which Mr. Justice Scott, in delivering the 
 opinion of the court, says : 
 
 " By the second instruction given on the part of the appel- 
 lee, the jury were told in substance that, if they believed, from 
 the evidence, that at the time of the disaster no bell was rung 
 or whistle sounded, they were at liberty to infer negligence on 
 the part of the appellant, and should find for the appellee, 
 unless they should believe, from the evidence, that the deceased 
 was guilty of such negligence as contributed directly to produce 
 or cause the injury. 
 
 " This instruction does not state the law correctly. While 
 it is true that it is negligence in the servants of the company to 
 omit to ring the bell or sound a whistle when approaching a 
 public crossing, yet the company is not necessarily liable for 
 every accident that may occur where they omit this duty. It is 
 only where the injury happens by reason of such neglect that 
 the company may be held liable, and such is the plain meaning 
 
AND QUESTIONS OF FACT. 177 
 
 of the statute on this subject. It was said by this court, in the 
 Chicago & Rock Island Railroad Company v. McKean, 40 111. 
 218, that the mere omission to ring a bell or sound a whistle 
 will not, per se, render the company liable. It must appear 
 from facts and circumstances, at least, that the injury was occa- 
 sioned by reason of such neglect. How this may be shown, can- 
 not be stated in any general rule. It may sometimes be made 
 to appear by showing that the party injured was himself in the 
 exercise of due care and caution; where a party knows he is. 
 approaching a railroad crossing, by showing, if it is possible to 
 do so, that he observed the usual and proper precautions, by 
 looking in either direction and watching for the usual signals 
 of danger, before attempting to cross. This is the plain duty of 
 everyone who attempts to pass over a railroad crossing, either 
 in the city, in the village, or in the country ; and where it ap- 
 pears, either from direct testimony, or from facts and circum- 
 stances in evidence, that a party is injured from a want of these 
 usual and prudent precautions, the law can afford no redress, 
 however fearful the injury. St. Louis, Alton & Terre Haute 
 Railroad Co. v. Manly, 58 111. 300." 
 
 The doctrine here announced is, that though the 
 party injured at a railroad crossing has been guilty of 
 no negligence contributing to his injury, and though 
 it appears that the railroad company failed to ring the 
 bell or sound the whistle, and thus disobeyed the stat- 
 ute, yet it is inadmissible to tell the jury that such 
 facts make the company liable ; but, on the contrary, 
 the jury must, before rendering a verdict for the plain- 
 tiff, be able to say that such negligence on the part of 
 the company caused the injury. If such be the law, 
 what is accomplished by the statute ? Manifestly 
 nothing, except to entrap the trial courts into mis- 
 stating the law to juries, and thus necessitating the 
 reversal of their judgments. 
 
 The very purpose of the statutory provision requir- 
 ing the ringing of the bell or the sounding of the 
 whistle, is to furnish warning to those about to cross 
 
 12 
 
178 QUESTIONS OF LAW 
 
 the track of the approach of trains, and thus enable 
 them to avoid being injured. When, therefore, it 
 appears, as was required by the instruction above 
 mentioned, that the injured party exercised due care 
 to avoid injury and that the company neglected to 
 observe a positive requirement of the statute, that 
 warning should be given of the approach of the train, 
 any jury or any court ought to draw the conclusion 
 that the injury was. the result of that neglect of duty. 
 It should be presumed, in such a case, that, had de- 
 fendant discharged its duty, the injury would not have 
 happened. 
 
 In C. & N. W. R'y Co. v. Coss, 73 111. 396, Mr. Chief 
 Justice Walker, in delivering the opinion of the court, 
 says: 
 
 "Appellant raises a number of questions on this record, 
 amongst which is one that the court below erred in overruling 
 a motion in arrest of judgment, and in support of that objection 
 it is urged that the declaration fails to show any cause of action. 
 It contains the averment that the company had a passenger 
 depot at Crystal Lake, on its road, and that appellee went to the 
 station for the purpose of taking passage on one of its trains to 
 Cary Station; that it was the duty of appellant to keep safe and 
 convenient approaches, so that persons could go safely from the 
 depot to the passenger cars for the purpose of taking passage 
 therein; but they, at the time the passenger train was about to 
 start, knowingly, carelessly, willfully and negligently blocked 
 up and stopped all of the public streets, approaches and grounds, 
 between the depot and passenger train, by running upon a track 
 between them a long, large and heavy freight train of cars, 
 which entirely closed, blocked up and stopped all public roads 
 and approaches from the depot to the passenger train, when it 
 was its duty to have kept such approaches open and free to 
 persons going upon the passenger train; that it let the freight 
 train so stand until almost the moment when the passenger 
 train started ; that it was impracticable and impossible for ap- 
 pellee to go from the depot to the passenger train without pass- 
 
AND QUESTIONS OF FACT. 179 
 
 ing over, through or between the cars in the freight train; that 
 in order that appellee might take passage on the cars, he, with 
 due caution and circumspection, attempted to pass between the 
 cars in the freight train, and to do so it was necessary for him 
 to step upon the bumpers or couplings of the freight cars, 
 and whilst on the same, appellant suddenly, carelessly and neg- 
 ligently, without any warning or notice, by ringing a bell, 
 sounding a whistle, or otherwise, started up the train, and by a 
 violent and sudden jerk caused appellee to lose his footing and to 
 fall between the freight cars and the couplings or bumpers, and 
 one of his feet was thereby greatly injured, and he suffered 
 great pain, was put to great expense, and lost many months, 
 time, etc. 
 
 " The default, even if it was regular, only amounted to a 
 confession of the truth of the averments properly pleaded. It 
 confessed no fact not averred, and whether this declaration con- 
 tains averments sufficient to sustain the verdict, is the question 
 we propose to consider. 
 
 " Under the rule long since announced and adhered to by 
 this court, a party receiving injury must show either that he is 
 himself free from and the defendant is guilty of negligence, of, 
 if the plaintiff is guilty of negligence, that it is slight and 
 that of defendant is gross or wanton, or the injury willfully 
 inflicted. These are the conditions upon which a party may 
 recover in such a case. When tested by these rules, does this 
 declaration show a right of recovery by appellee ? That he, in 
 attempting to cross between the cars of a freight train to which 
 an engine with steam up was attached, and liable to start at any 
 moment, and without permission, or notice to anyone in charge 
 of the train or having authority over it, was, we think, mani- 
 festly negligence, and, divested of all verbiage, that is what is 
 averred by this declaration. It was, no doubt, the duty of the 
 company, in due time before the passenger train left, to clear 
 the way, so that appellee and all other passengers could approach 
 and enter it with safety. But a failure of the company to per- 
 form their duty did not license .appellee to hazard his life to 
 reach the train. Had the passenger train left before he could 
 approach it safely, and thus have violated its implied agreement 
 to carry him on that train, if he had procured a ticket for a 
 
180 QUESTIONS OF LAW 
 
 passage thereon, he would have had his action against the road 
 for all damages sustained by not carrying him on that train, 
 but it conferred on him no right to imperil his life or limb. 
 
 "In the case of the Chicago, Burlington & Quincy Railroad 
 Co. v. Dewey, 26 111. 255, it was said that the deceased knew that 
 an engine was attached with the steam up, liable to move at any 
 moment ; that it was in the night, when the engineer or con- 
 ductor would not be likely to see or know of his effort to pass 
 between the cars ; that he gave no notice of his purpose to pass 
 through, and the officers had a right to suppose a prudent or 
 reasonable person would not attempt to pass at the time or un- 
 der the circumstances, and the evidence was that the bell was 
 rung and the usual notice thus given before the train was 
 moved. On those facts the court held that deceased was guilty 
 of negligence. It was also held, that it was negligence for the 
 servants of the road to stop their freight train so as to prevent 
 passengers from going from the depot to the passenger train ; 
 that having placed it there, it was their duty to have opened it, 
 so as to afford a safe and easy passage to and from the passen- 
 ger cars. In that case it was held, that negligence of deceased 
 Was not slight, as compared with that of the company, and 
 recovery could not be had. 
 
 " In a case like the present, whilst it is not necessary that a 
 plaintiff should aver that he was free from all negligence or 
 had observed due care, still, a declaration will be insufficient if 
 it appear that he was guilty of negligence from the averments. 
 In this case it does appear from the declaration that appellee was 
 guilty of negligence, and from all the averments we are unable 
 to say that his negligence was slight and that of appellant was 
 gross, and, failing to so appear, the declaration was insufficient 
 to sustain the judgment. Had it averred negligence of appel- 
 lant and not shown negligence on his part, then the declaration 
 would have been sufficient. The question of his negligence 
 would then not arise until the trial, and then it would be com- 
 pared with that of appellant, and if his should be found to be 
 slight and that of appellant gross, he would be entitled to 
 recover, otherwise he must fail. 
 
 " The judgment must be reversed and the cause remanded, 
 with leave to amend." 
 
AND QUESTIONS OF FACT. 181 
 
 It" cannot be claimed that in this case the court 
 was only expressing an opinion upon a question of 
 fact. The question presented was one of law only, 
 and was raised by a motion in arrest of judgment. 
 The declaration alleged that the defendant knowingly, 
 carelessly, willfully and negligently blocked up all the 
 approaches to the passenger train, that the plaintiff, 
 with due caution and circumspection, attempted to pass 
 between the cars, and whilst he was so doing the 
 defendant suddenly, carelessly and negligently, with- 
 out any warning or notice, started up the train, and 
 thereby he, the plaintiff, was injured. The court say 
 it was not necessary for the plaintiff to allege that he 
 exercised due care, but nevertheless declare, as a mat- 
 ter of law, that, contrary to the averment in the 
 declaration that he was acting with due caution and 
 circumspection, his conduct in attempting to pass 
 between the cars was t negligence, and that the declara- 
 tion was defective in not stating that his negligence 
 was slight and that of defendant gross. 
 
 As we have before . seen, judgments have been 
 reversed because the trial court has stated, and because 
 it has neglected to state to the jury, the doctrine of 
 comparative negligence in its instructions, but the 
 above is believed to be the only case in which it has 
 been held necessary to set forth the doctrine in the 
 plaintiff's declaration. 
 
 In C. & K W. R'y Co. v. Hatch, 79 111. 137, Mr. 
 Justice Scholfield, in delivering the opinion of the 
 court, says : 
 
 "Appellant asked the court to give the following among 
 other instructions to the jury, which the court refused : 
 
 "' 2. The jury are instructed, as a matter of law, that both 
 the plaintiffs and the defendant the railway company, had an 
 equal right to cross the street at the point where the accident 
 
182 QUESTIONS OF LAW 
 
 happened, and that the law imposes upon both parties the duty 
 of using reasonable and prudent precaution to avoid accident 
 and danger; and, while it was incumbent upon the railway 
 company to run its train on the occasion referred to, and to give 
 the required signal by ringing the bell for eighty" (80) rods 
 before reaching the crossing, it was also the duty of the plain- 
 tiffs to look out for the approach of the train, and to observe 
 all reasonable precautions before attempting to cross the rail- 
 way track. 
 
 " ' 4. If the evidence in this case shows that Swift, the 
 driver, took the risk of crossing in front of the engine before 
 it could strike him, and in this he was mistaken, that he mis- 
 calculated, and from any cause of his own was not able to pass 
 safely in front, the plaintiffs must bear the loss and the jury 
 must find for tbe defendant. 
 
 " ' 7. Every person is bound to know that a railroad cross- 
 ing is a dangerous place, and he is guilty of neglect unless he 
 approaches it as if it were dangerous. If Swift, the driver of 
 the team in question, knew the crossing where the accident 
 complained of occurred was a dangerous one, he was bound to 
 know that a train might be approaching; and if he did not 
 look or listen to ascertain if one was coming, but, on the con- 
 trary, drove directly on the track, and the accident resulted, he 
 was guilty of such negligence as precludes the plaintiffs from 
 recovering in this case, unless the plaintiffs have gone further 
 and proven to the satisfaction of the jury that the railway 
 company upon such occasion was guilty of gross negligence. 
 
 " ' 8. It is not the exercise of ordinary care and prudence 
 for a person to drive with a horse directly on to a railroad cross- 
 ing, known to him at the time to be dangerous, without making 
 an effort, by stopping or listening, or otherwise, to ascertain 
 whether a train is approaching, or whether it is safe to drive on 
 the track with his team/ 
 
 " These instructions were pertinent to facts proved, and 
 they embody principles which have been many times announced 
 by this court. The following, not to mention other cases, 
 fully sustain their correctness : Chicago, Burlington & Quincy 
 Railroad Co. v. Van Patten, Admx., 64 111. 510 ; The Chicago & 
 Rock Island Railroad Co. v. McKean, 40 id. 218 ; Chicago & 
 
AND QUESTIONS OF FACT. 183 
 
 Alton Railroad Co. v. Jacobs, 63 id. 178 ; Chicago & Alton 
 Railroad Co. v. Gretzner, 46 id. 75 ; Toledo, Peoria & Warsaw 
 Railway Co. v. Riley, 47 id. 514 ; Chicago, Burlington & Quincy 
 Railroad Co. v. Lee, Admx., 68 id. 578. 
 
 " Nor were there any instructions given, either on the part 
 of appellant or of appellees, supplyingtheir omission. * * * For 
 the error in refusing to give the foregoing instructions, the 
 judgment is reversed and the cause remanded." 
 
 Twenty years after the Yarwood Case, supra, was 
 decided, the learned judge who delivered the opinion 
 was himself injured, while attempting to get on board 
 a railroad train, and, in a suit which he brought against 
 the railroad company, he insisted that negligence was a 
 question of fact for the j ury to determine. The answer 
 to his argument is found in C. & N. W. E'y Co. v. 
 Scates, 90 111. 592, where Mr. Chief- Justice Craig, in 
 delivering the opinion of the court, says : 
 
 " It is, however, said that negligence is a question of fact, 
 which should be left to a jury. This is true, and yet, if a per- 
 son is guilty of gross negligence, on account of which an 
 injury is received, or is injured for a failure to exercise ordinary 
 care and caution to avoid danger, we apprehend it would not be 
 error for a court to so instruct a jury. 
 
 " The second instruction, which was refused, was in harmony 
 with the views here expressed. It, in substance, directed the 
 jury, that if they find that the train started on regular time, 
 that it had been in proper position to receive passengers a suffi- 
 cient time to allow all passengers an opportunity to take seats 
 in the cars, and if plaintiff, after the cars were in motion, 
 attempted to get on board, and was injured by reason of the 
 car being in motion, he could not recover. The instruction 
 was, in substance, a declaration to the jury, if plaintiff was in- 
 jured on account of gross negligence on his part, or from the 
 want of ordinary care, he could not recover." 
 
 In C, B. & Q. R. E. Co. v< Van Patten, 74 111. 91, the 
 declaration, as appears in the report of the case on the 
 first appeal, in 64 111. 512, charged that the deceased, 
 
184 QUESTIONS OF LAW 
 
 while exercising due care and caution, was run over 
 and killed by a train of the defendant, and that there 
 was negligence on the part of the defendant, first, in the 
 omission to ring the bell or sound the whistle for the 
 requisite distance before reaching the crossing at which 
 the accident occurred; second, in running the train at 
 a highly dangerous and improper rate of speed; third, 
 in keeping no look-out from the engine; and fourth, in 
 general mismanagement and gross want of care in 
 running the train. Mr. Justice Scholfield, in deliver- 
 ing the opinion of the court, among other things, says: 
 " In the record before us there is evidence showing that the 
 plaintiff's intestate was guilty of negligence contributing to the 
 injury which resulted in his death, and on account of which the 
 suit is brought. He was, at the time, riding in a wagon, drawn 
 by a pair of mules which seem to have been entirely under his 
 control. He was familiar with the crossing, and the train was 
 on regular time. The wagon road on which he was traveling, 
 after running parallel and not far distant from the railroad 
 track, turns at a point about four rods distant from the track, 
 and crosses it nearly at right angles. At and from the point 
 where the wagon road turns to cross the railroad track a train can 
 be plainly seen for a distance sufficient to enable a person to check 
 an ordinary team before passing on the track. The intestate 
 did not look in the direction from which the train was coming, 
 but kept his head averted, looking in an opposite direction, ap- 
 parently at some persons who were driving hogs, and without 
 checking or attempting to check his team, and thus drove on 
 the track and was struck by the advancing engine. So far as 
 we have been able to discover, there was no controversy in this 
 respect. His conduct, therefore, was clearly and unquestionably 
 negligent. C. & A. R. R. Co. v. Jacobs, 63 111. 178; St. L., A. & 
 T. H. R. R. Co. v. Manly, 58 id. 300; T., W. & W. R. R. Co. v. 
 Jones, 76 id. 311; C, B. & Q. R. R. Co, v. Lee, Admx., 68 id. 576. 
 The only question, then, was, whether tbe defendant was guilty 
 of a degree of negligence in comparison with which this negli- 
 gence of the intestate was slight. This was to be determined 
 from the evidence alone. 
 
AND QUESTIONS OF FACT. 185 
 
 " The defendant requested and the court instructed the jury 
 to find specially in answer to the following interrogatories : 
 
 " ' Int. 1. In what particulars were the servants of the 
 defendant guilty of negligence in causing the death of Matthew 
 B. Van Patten ? 
 
 *' ' Int. 2. At what rate of speed was the tram which 
 caused the death of said Matthew B. Van Patten moving at the 
 time of the accident ? 
 
 " ' Int. 3. Could the said Matthew B. Van Patten, from his 
 position on the road at the point where the same turns out of 
 the public road westward to the place of the accident as indi- 
 cated on the map shown in the evidence, and from that point 
 until he reached the railroad track, have seen the approaching 
 train; if so, for what distance could he have so seen the same ? 
 
 " ' Int. 4. Did the said Matthew B. Van Patten, at any 
 time before the accident occurred, and while the train that 
 caused his death was within sight, look in the direction of said 
 train as it approached ; if so, at what point did he so look ? ' 
 
 " The court, then, of its own motion, and against the defend- 
 . ant's objection, remarked to the jury that if they were unable 
 to render a special verdict in answer to the interrogatories be- 
 cause of the uncertainty of the evidence, they could so report 
 in the way of a special verdict. 
 
 "The jury, with their general verdict, returned the follow- 
 ing special verdict : 
 
 "'•First. We, the jury, find the greatest negligence on the 
 part of the defendant's servants, in causing the death of Mat- 
 thew B. Van Patten. 
 
 " ' Second. In not giving the proper signals. 
 
 " ' Third. In running at an unusual rate of speed.' 
 
 " The defendant objected to receiving the verdict, but the 
 court overruled the objection and gave judgment on the general 
 verdict, for the plaintiff. 
 
 " It was provided by the fifty-first section of the Practice 
 Act, in force July 1, ]872 : 'The court may, at the request of 
 either party, require the jury to render a special verdict upon 
 any fact or facts in issue in the cause, which verdict shall be 
 entered of record,' etc. When the special finding of fact is in- 
 
186 QUESTIONS OF LAW 
 
 consistent with the general verdict, the former shall control the 
 latter, and the court shall give judgment accordingly. 
 
 " When the court exercised its discretion and instructed the 
 jury to find specially in answer to the interrogatories, we think 
 its power in that respect was exhausted, and that it was then 
 the duty of the jury to obey the instruction. By subsequently 
 informing them that if they were unable to answer the interro- 
 gatories because of the uncertainty of the evidence, they might 
 so report, etc., the jury were made to understand that, in the 
 opinion of the court, there was uncertainty in the evidence 
 upon the points presented by the interrogatories, and also that, 
 although the evidence was too uncertain to enable them to spe- 
 cifically answer the interrogatories, they might nevertheless be 
 able to return a general verdict. We think the tendency of this 
 was to mislead the jury. The interrogatories embrace the vital 
 issues in the case. Unless the jury were able to find that the 
 answers to them were unfavorable to the defendant, their verdict 
 should have been for the defendant. If no instruction to find 
 specially in answer to these interrogatories had been given, it 
 would still have been the duty of the jury to have believed, 
 from the evidence, before they returned a verdict for the plain- 
 tiff, that the defendant was guilty of negligence which caused 
 the injury to the intestate; that the intestate was not guilty of 
 contributive negligence, or, if guilty of such negligence, that it 
 was slight and that of the defendant gross when compared with 
 each other. It is idle to say a jury might intelligently return a 
 general finding embracing these issues, and yet, by reason of the 
 uncertainty of the evidence, not be able to answer the interrog- 
 atories." 
 
 In thus holding that the special interrogatories 
 submitted to the jury were proper and that they em- 
 braced the vital issues of the case, the court were not 
 expressing an opinion which was merely a conclusion 
 of fact, but were determining a question which they 
 supposed to be one of law. They were not using lan- 
 guage calculated to mislead counsel, but were declar- 
 ing in unambiguous terms that, whether such and 
 such acts were done or omitted to be done by the 
 
AND QUESTIONS OF FACT.. 187 
 
 parties was a question of fact for the jury; but that 
 whether the doing of such acts or the omission thereof 
 constituted negligence was a question of law for the 
 court. The jury, by their general verdict, found that 
 the deceased exercised due care and caution, and that 
 defendant was guilty of negligence as charged in the 
 declaration. " Negligence," as is said in the Yarwood 
 Case, supra, "is the fact to be found. The acts of the 
 party, and the circumstances under which they were 
 done, are not the fact to be found, but are merely evi- 
 dences of that main fact." The special interrogatories 
 propounded to the jury did not call for the fact or 
 facts in issue in the cause, the determination of which 
 is the province of the jury, but they merely called for 
 the acts of the parties, and the circumstances under 
 which they were done, all of which were merely evi- 
 dences of the facts in issue. The evident purpose for 
 which the interrogatories were submitted was to have 
 the jury find, not the facts in issue, but merely some 
 of the evidences of those facts, in order that the court 
 might draw its own conclusions of fact and substitute 
 them for the conclusions of the jury. Such a proceed- 
 ing could only be sustained upon the theory that not 
 only is the definition of negligence a question of law, 
 but it is also a question of law whether the facts of a 
 particular case fall within the rule or definition. 
 
 The statute declared that when the special finding 
 of fact was inconsistent with the general verdict, the 
 former should control the latter. Suppose, then, that 
 the jury had found specially that the servants of 
 defendant were guilty of negligence in failing to give 
 the proper signals and in running at an improper 
 rate of speed, to wit, thirty miles an hour; that Van 
 Patten could have, seen the train from his position on 
 the road for a distance of twenty rods, and that he did 
 not look in the direction of the approaching train, and 
 
188 QUESTIONS OF LAW 
 
 had also found a general verdict in favor of plaintiff, 
 what would have been the result ? There would have 
 been presented to the court the question whether the 
 special verdict was inconsistent with the general 
 verdict. This would have been simply a question of 
 law, and before the court could have held the special 
 was inconsistent with the general verdict it would 
 have been required to decide, as a matter of law, that 
 the simple fact that Van Patten did not look in the 
 direction of the advancing train, no matter what the 
 other circumstances of the case may have been, created 
 a conclusive presumption of law that he did not exer- 
 cise due care. This would clearly make negligence a 
 question of law for the court, and not a question of 
 fact for the jury. 
 
 Other cases are to be found in which the court has 
 decided that whether certain facts constitute negli- 
 gence is a question of law, but they need not be cited. 
 The bar and the trial courts seem now to be of the 
 opinion that they must be regarded as overruled by 
 the Conlan Case, at least until further notice. Had 
 the opinion in that case freely confessed the former 
 errors of the court, instead of apparently denying 
 them, and charging the bar and the trial judges with a 
 failure to properly comprehend the effect of prior 
 decisions, all doubts as to the future would have been 
 removed. It is not perceived what advantage is to be 
 gained by a court in endeavoring to explain away the 
 effect of prior decisions, especially when they are not 
 susceptible of such explanation. Honesty is the best 
 policy, for courts as well as for individuals ; and par- 
 ticularly should this maxim be remembered by a court 
 which has one hundred volumes of reports outstand- 
 ing. 
 
 If the rule that negligence is a question of fact for 
 the jury be strictly adhered to, trial judges of ordinary 
 
AND QUESTIONS OF FACT. 189 
 
 sense and prudence ought to find but little difficulty in 
 avoiding the giving of instructions which take from 
 the jury the right to decide questions of fact in actions 
 for negligence. But were it made the duty of the 
 judge to decide, as a matter of law, that particular 
 acts or omissions of the parties, not provided for by 
 legislative enactment, constituted proper care or neg- 
 ligence, as the case might be, the result would be 
 almost endless difficulty and confusion, for whether 
 the decision of the circuit judge upon such questions 
 of law would be sustained, would -depend entirely 
 upon whether his view of what ordinary care and 
 prudence demanded in the particular case was in 
 accord with that of the reviewing courts, and as the 
 standard by which one judge might measure the 
 requirements of due care and caution is liable to differ 
 from that by which another measures them, the deci- 
 sions of questions of law would become extremely 
 difficult and uncertain. 
 
 II;. may be that, if the court is only, permitted to 
 define negligence and must leave it to the jury in all 
 cases to say whether the facts proven bring the case 
 within the definition, improper verdicts may be ren- 
 dered. But such verdicts may be set aside on motions 
 for new trials. The main thing necessary to secure a 
 reputable administration of justice is a simplification 
 of the law, so that errors of law may be to a great 
 extent avoided by the trial courts, and the reviewing 
 courts may be compelled to decide every case upon its 
 merits, and have no reason for reversing any judgment, 
 if the evidence is sufficient to sustain the verdict. 
 
CHAPTER V. 
 
 EXCESSIVE DAMAGES. 
 
 The principles by which courts should be guided in 
 determining whether the verdict of a jury should be set 
 aside as excessive are stated in Field on Damages, 
 sec. 873, as follows : 
 
 " It may Tbe remarked that courts seldom exercise this power 
 where the amount depends upon a question of fact, or is 
 unliquidated, even where the jury have not, in the opinion of 
 the court, determined the case as it should have been on the facts ; 
 and especially where there is conflicting or contradictory 
 evidence. 
 
 " The reluctance of courts to interfere with the findings of 
 juries on the facts, where there have been no errors of law, is 
 illustrated by a recent case in Pennsylvania. In a suit by the 
 husband for the death of his wife, who was killed through a 
 collision with a railroad train, it appeared that the plaintiff and 
 his wife were riding in a market wagon down a graded slope 
 of more than a quarter of a mile in plain view of the defend- 
 ant's train for a long distance, and the court had no doubt, from 
 the circumstances of the case, that the injury happened from 
 either the plaintiff's misfortune or fault. Yet as the case had 
 been given to the jury without any error in law, the court 
 affirmed a verdict of $9,150 for the plaintiff. 
 
 " The power of the court to set aside verdicts, and grant 
 new trials, should be exercised only where it is apparent, from 
 the amount of the verdict or otherwise, that the jury were 
 influenced by passion, prejudice, corruption, or an evident mis- 
 take of the law or the facts, or that there was a palpable error 
 
 190 
 
EXCESSIVE DAMAGES. 191 
 
 in computation. This doctrine is well expressed by Justice 
 Wilde, who remarks: 'In all case3 where there is no rule 
 of law regulating the assessment of damages and the amount 
 does not depend upon computation, the judgment of the jury, 
 and not the opinion. of the court, is to govern, unless the dam- 
 ages are so excessive as to warrant the belief that the jury must 
 have been influenced by partiality or prejudice, or have been 
 misled by some mistaken views of the merits of the case.' But 
 when the verdict of the jury is so flagrantly excessive that the 
 mind at once perceives that the verdict is unjust, it should be 
 set aside." 
 
 In Graham and Waterman on New Trials, Vol. I, 
 pp. 452-453, the reason for this rule is stated as follows : 
 
 " The reasons for holding parties so tenaciously to the dam- 
 ages found by the jury in personal torts is, that in cases of this 
 class there is no scale by which the damages are to be gradu- 
 ated with certainty. They admit of no other test than the 
 intelligence of a jury, governed by a sense of justice. It is, 
 indeed, one of the principal causes in which the trial by jury 
 has originated. From the prolific fountain of litigation 
 numerous cases must daily spring up calling for adjudication 
 for alleged injuries, accompanied with facts and circumstances 
 affording no definite standard by which these alleged wrongs 
 can be measured, and which, from the necessity of the case, 
 must be judged of and appreciated by the view that may be taken 
 of them by impartial men. To the jury, therefore, as a favorite 
 and almost sacred tribunal, is committed, by unanimous consent, 
 the exclusive task of examining those facts and circumstances, 
 and valuing the injury, and awarding compensation in the 
 shape of damages. The law that confers on them this power, 
 and exacts of them the performance of this solemn trust, favors 
 the presumption that they are actuated by pure motives. It, 
 therefore, makes every allowance for different dispositions, 
 capacities, views, and even frailties, in the examination of hetero- 
 geneous matters of facts, where no criterion can be supplied, and 
 it is not until the result of the deliberations of the jury 
 appears in a form calculated to shock the understanding, and 
 
192 EXCESSIVE DAMAGES. 
 
 impose no dubious conviction of their prejudice and passion, 
 that courts have found themselves compelled to interpose. 
 
 " But in actions where, by reason of the agreement of the 
 parties, or from other causes, a reasonably certain measure of 
 damages is afforded, no such latitude is allowed the jury, and 
 the court will look into the circumstances, and grant or refuse 
 a new trial, or correct the verdict according to the justice of 
 the case." 
 
 In McNamara v.. King, 2 Grilm. 436, Mr. Justice 
 Treat, in' delivering the opinion of the court, says : 
 
 " The amount of recovery in actions for personal injuries 
 rests so much in the discretion of juries, that courts will not 
 disturb their verdictson the ground that the damages are exces- 
 sive, unless it is manifest that they have been governed by pas- 
 sion, partiality or corruption ; and, to draw such a conclusion, 
 it is not enough that the damages, in the opinion of the court, 
 are too high, or that a less amount would have been a sufficient 
 satisfaction for the injury. It must be apparent at first blush 
 that the damages are glaringly excessive." 
 
 The rules thus announced have received the 
 approval of all courts in all countries where the right 
 of trial by jury has been recognized. It is proposed 
 now to briefly inquire how the Supreme Court of Illi- 
 nois have applied the rules thus universally recognized 
 and agreed upon. 
 
 The cases will be divided into two classes, first, 
 those which discuss whether damages awarded are 
 excessive, and second, those in which judgments have 
 been reversed for the admission of erroneous evidence, 
 or the giving of erroneous instructions, or the refusing of 
 proper instructions affecting, or supposed to affect, the 
 amount of damages awarded. 
 
 FIRST CLASS. 
 
 In C, B. & Q. R. R. Co. v. Hazzard, 26 111.. 389, Mr. 
 Justice Breese, in delivering the opinion of the court, 
 
 says : 
 
THE HAZZARD CASE. 193 
 
 " The next point argued at length by the plaintiff, is the 
 amount of damages, in reply to suggestions of the defendant 
 that they are excessive. The plaintiff insists that this depends 
 mostly upon the nature, extent and permanency of the 
 injury ; the effect it has produced and is likely to produce upon 
 the physical condition of the plaintiff ; his pain and suffering, 
 both mental and physical, past and future ; the effect it has 
 upon his pecuniary interests, both as regards the expenses 
 occasioned by the injury, and the effect it has upon his busi- 
 ness. These are proper elements to be considered in estimating 
 the damages, and as to them what are the facts? No one of 
 the surgeons describe a very serious injury. Though it may be 
 a permanent injury, that does not make it very serious, like the 
 loss of a limb, a hand or foot, or an eye. It is merely, if we 
 understand them, the displacement of a small bone of the foot, 
 called the astragalus— the ankle bone, knuckle bone or sling bone, 
 as it is sometimes called. Displacing this turns the foot in and 
 the toes downward. But if it is replaced, or the bone taken 
 out, those surgeons do not say he will be disabled. Dr. Brain- 
 ard says, if the displaced piece was taken out, he would have a 
 strong and useful foot; but the foot would be flattened, the 
 ankle stiff, and the limb an inch shorter. He thinks the bone 
 will be likely to unite by ligaments, which nature forms, and 
 when formed and united, he will not lose the motion he now 
 has, and this motion may increase when it shall become fully 
 united ; will have to walk on the side of his foot, which may 
 produce swelling, but if care is used, no danger of any abscess. 
 
 " This, though painful enough, is nothing to the loss of the 
 foot, the hand, eye, arm, or any other prominent limb. It is 
 simply a displacement of the ankle bone, the most serious effect 
 of which will be to cause the plaintiff to limp some, requiring, 
 probably, the use of a cane to assist him in walking. His phy- 
 sical condition, as a whole, cannot, from the nature of the 
 injury, be affected in any way. The pain and suffering hither- 
 to has been unquestionably very great, and may be repeated if 
 an operation becomes necessary, of which there is no great 
 probability, if he is careful, and refrains from using his foot 
 until the parts are accommodated to each other. The expenses 
 of his cure would also be a legitimate subject of inquiry, and 
 
194 EXCESSIVE DAMAGES. 
 
 can be very nearly estimated. One of the surgeons, who seems 
 to have had the case in charge, thinks his bill will be as much 
 as one hundred dollars, and that of the nurses, we should think, 
 would probably be as much more. Here then is one item pretty 
 accurately ascertained, if damages can in any event be allowed. 
 For pain and suffering, the jury would have a right to be liberal 
 in a proper case, and there is no fixed rule by which, in this 
 estimate, they are to be governed, keeping in mind all the time 
 that though they may give damages, they must not be so great 
 as to carry with them the appearance of being the progeny of 
 prejudice, passion, or other unworthy motive. The effect the 
 injury is likely to produce on the professional business of the 
 plaintiff would also be taken into consideration. He is known 
 to be a gentleman of high standing at the bar, with many 
 clients, and with a lucrative practice extending to Chicago, and 
 in the most important court there. How is this injury to affect 
 that practice, and his professional earnings from it ? 
 
 "This is by far the most important inquiry of all, and on 
 which little or no evidence was given. Mr. Beardsley stated 
 that the plaintiff had been doing a large business, requiring him 
 to be away from home — generally in the courts of the United 
 States. He went, last October, four months after he had received 
 the injury, to Chicago, to attend court. At July term, he had 
 about one hundred cases which were continued, whether on 
 account of his inability to attend to them, it is not stated, or 
 that there was any loss resulting from such continuances. He 
 attended the September term, in Knox county, about two 
 months after receiving the injury; the fall term, at Chicago, 
 and the last term, at Chicago, of the United States Court — all 
 within a few months after the accident. No loss is proved as 
 resulting from the injury, in his practice, nor can we see how he 
 is in any manner disabled from pursuing his profession with the 
 same ardor, with the same efficiency, and with the same profita- 
 ble results as heretofore. His lameness, even if he has to be 
 supported by a crutch or cane, will in no degree interfere with 
 his office business, or with his pleadings in court, or with his 
 studies in his chamber, or paralyze his laudable efforts to climb 
 the steep, 
 
 "'Where Fame's proud temple shines afar.' 
 
THE HAZZARD CASE. 195 
 
 ''The plaintiff, to his praise be it said, is an eminent attor- 
 ney and counselor, skilled in drafting bills in chancery, special 
 pleas, and in the preparation of able and voluminous briefs in 
 important cases, and in arguing from them; how can this injury 
 of the ankle diminish his power in these respects ? Would he 
 not, crippled as he says he is, be justified in demanding as large 
 fees for the exertion of his brains as before the injury ? Can 
 he not go from home to Chicago, and elsewhere, with the same 
 ease he was wont to travel ? Certainly, unless this accident 
 shall have made him timid of railroad traveling, which is not at 
 all probable, and especially if a large sum of money is to be 
 derived from a comparatively slight accident. Will his income 
 be less by what has befallen ? The plaintiff says the jury did 
 not find enough ; they should have found sufficient to enable 
 him to have retired from business, supporting his family on the 
 interest of a fund which the j ury should have placed at his disposal, 
 and giving them as good a support as he could furnish in the 
 pursuit of his business. If this is a proper view of the case, 
 then certainly the jury have failed in their duty. The support 
 of the plaintiff's family cannot fall short of two thousand dol- 
 lars per annum. A fund to yield this am6unt, at six per cent., 
 should be thirty-three thousand three hundred and thirty-three 
 dollars and thirty-three cents, and that should have been the 
 verdict of the jury. But that is not the view to take; the one 
 we have presented is the true view. How much are his profes- 
 sional receipts diminished, or likely to be diminished, by reason 
 of this accident ? The plaintiff is in the prime of life, in good 
 health, and in the full enjoyment of all the faculties necessary 
 to enable him to pursue his profession with all the industry and 
 energy he may invoke, save, perhaps, the necessity of limping 
 slightly in going to and from the various courts he attends. 
 
 " Should a person whose avocations in life are not profes- 
 sional, but dependent for success on the free use of all of his 
 limbs, be injured, the proper inquiry in such case is, to what 
 extent is he disabled ? If a carpenter, blacksmith, or other 
 person whose living is obtained by manual labor, should be 
 crippled in his hand, in so far as that detracts from his power 
 of earning his accustomed livelihood, so far should the jury 
 give him damages over and above the usual damages for the 
 
196 EXCESSIVE DAMAGES. 
 
 pain and suffering, medical attendance, loss of business whilst 
 confined, etc. So with every other profession. There is a total 
 absence of evidence here, to show that the plaintiff has lost or 
 will lose one dime less of income from his practice now than he 
 received prior to the accident. It was not in the nature of 
 things, or of the injury, that he should. 
 
 ' In the absence of all necessary proof on this important 
 point, who will not say that the damages are excessive? Even if 
 we have erred on the question of negligence, no circumstances 
 of aggravation are shown against the defendant, and if negli- 
 gent at all, it was very slight, and not to be visited by vindic- 
 tive damages, as these unquestionably are. Their magnitude, in 
 'full view of all the facts of the case, compel the belief that the 
 jury who gave them was influenced by that popular prejudice 
 existing all over the country against railroad corporations. This 
 should not be. Juries should remember that railroad accidents 
 are not always produced by the misconduct of agents and em- 
 ployes, but a large proportion of them by the carelessness and 
 recklessness of passengers. This our experience tells us. It is 
 a great evil, and it would be a sin to encourage it by allowing a 
 premium on it to be extorted from companies. However bad 
 their behavior may sometimes be, it would not be improved by 
 making them pay for faults not their own. 
 
 " The law where death occurs by the negligence of a railroad 
 company, no matter who the deceased may have been, howsoever 
 distinguished, and however successful in reaping the fruits 
 of his professional skill, or how enormous they may annually 
 have been, cannot give his widow and children, or next of kin, 
 more than five thousand dollars. The plaintiff has the same 
 power now that he ever had to provide for his family. If five 
 thousand dollars is compensation for the loss of the prop and 
 stay of the family, is not eleven thousand dollars excessive dam- 
 ages when the head of the family is no further disabled than a 
 dislocated or fractured ankle? " 
 
 In C. & R. I. R. R. Co. v. McKean, 40 111. 238, the 
 same learned judge, in delivering the opinion of the 
 court, says : 
 
 "Descending to particulars in this case, it was proved that 
 appellee's horses were both killed, and they were worth three hun- 
 
THE MCKEAN CASE. 197 
 
 dred or three hundred and twenty dollars. His wagon, which was 
 an old one, had one wheel destroyed and axle broken, and the bed 
 or box slightly injured, and one of the springs of the seat broken. 
 It was worth seventy-five or eighty-five dollars, and was deteri- 
 orated half its original value by the injury. The harness was 
 injured to the extent of twenty-five dollars. Expenses for 
 medical attendance were, as proved, one hundred and thirty- 
 eight dollars and fifty cents, and for nursing, at three dollars 
 per day, twenty-six days, seventy-eight dollars, making in all six 
 hundred and one dollars and fifty cents, as follows: For prop- 
 erty destroyed or injured, three hundred and eighty-five dollars; 
 for surgical attendance, one hundred and thirty-eight dollars and 
 fifty cents ; for nursing, seventy-eight dollars. The verdict 
 was for five thousand eight hundred and seventy-five dollars, 
 leaving as solatium, for pain and suffering and loss of time, and 
 the permanent injury of appellee, the sum of five thousand two 
 hundred and seventy-three dollars and fifty cents. * * * In 
 Hazzard's Case, 26 111. 373, on the point of excessive damages 
 for a personal injury by a railroad train, this court said, * that 
 the amount of damages depends upon the nature, extent and 
 permanency of the injury ; the effect it has produced, and is 
 likely to produce, upon the physical condition of the plaintiff ; 
 his pain and suffering, both mental and physical, past and 
 future ; the effect it has upon his pecuniary interests, both as 
 regards the expense occasioned by the injury and the effect it 
 has upon his business.' 
 
 " The injured party in that case was a practicing lawyer in 
 high standing, and the injury was. a displacement of the ankle 
 bone. This, the court said, though painful enough, is nothing 
 to the loss of the foot, the hand, eye, arm, or any other promi- 
 nent limb, but no loss of his practice was shown as a conse- 
 quence of the injury, nor was he disabled from pursuing his 
 profession with the same ardor, and the same efficiency, and with 
 the same profitable results, as theretofore. And we further said, 
 the true view to take of the amount of the damages in this regard 
 is, ' how much are his professional receipts diminished or likely 
 to be diminished by the accident ? Should a person whose avoca- 
 tions in life are not professional, but dependent for success on the 
 free use of all his limbs, be injured, the proper inquiry in such 
 
198 EXCESSIVE DAMAGES. 
 
 case would be, to what extent is he disabled? If a carpenter, 
 blacksmith, or other person whose living is obtained by manual 
 labor, should be crippled in his hand, in so far that it detracts 
 from his power of earning his accustomed livelihood, so far 
 should the jury give him damages over and above the usual 
 damages for the pain and suffering, medical attendance, loss of 
 business while confined, etc ; so with every other profession,' or 
 pursuit. We further said, ' for pain and suffering the jury would 
 have a right to be liberal in a proper case, and there is no fixed 
 rule by which, in this estimate, they are to be governed, keeping 
 in mind all the time that though they may give damages, they 
 must not be so great as to carry with them the appearance of 
 being the progeny of prejudice, passion, or other unworthy 
 motive.' 
 
 " Allowing, then, great but reasonable latitude to the jury, 
 not only to compensate the injured, but to punish the trans- 
 gressors of a wholesome public law, we cannot see how this ver- 
 dict can be retained. Admitting the negligence of the appel- 
 lant exceeds that of appellee, the injury to appellee is not, by 
 any means, great in degree. It is not like the loss of a leg, an 
 arm, or a foot even, for, without the toes of one foot, a man is 
 by no means incapacitated to earn a good living by manual 
 labor, notwithstanding what Doctor Lattimer said. Had appellee 
 lost the fingers of his left hand, then, indeed, might it be said 
 he was unfitted for manual labor, but while he has his hands, it 
 cannot be truly said he cannot earn his living by manual labor. 
 What were the pursuits of appellee ? What was his business 
 at the time of the accident ? It is said he was a farmer, but as 
 no one said he owned land, we infer he was a renter, and it was 
 proved he was worth from one to two thousand dollars, and 
 kept a ' stable horse,' and moved about with him. The infer- 
 ence is that this horse and team were the bulk of his prop- 
 erty. Now, it is very apparent that the last-named branch 
 of business can be quite well performed by a man who has been 
 deprived of the toes of one foot, and, as several witnesses stated, 
 with our improved agricultural machines, he can still do much 
 farm work, and it is absurd to say, as Dr. Lattimer testified, if 
 appellee came to him for a pension, knowing what he does of 
 his foot, he would state he was wholly disabled from getting 
 
THE MCKEAN CASE. 199 
 
 a support by manual labor. At tbe same time be says there 
 are many things he could do, but not those which required 
 much walking. Tbe inference is, be could do things wbich 
 required some walking, and could do any amount of riding if 
 ulceration of the tQe did not arise ; but tbe danger of that, he 
 says, is not very great. His judgment is that the toe will heal, 
 but will be apt to break out again. Dr. Dunn thinks the injury 
 disables him two-thirds as a farmer, but, if he should learn a 
 trade that would not require walking, perhaps it would not 
 disable him to any great extent. If be should walk mode- 
 rately, and adapt himself to some sedentary pursuit, there would 
 be liability of ulceration, but the liability would not be very 
 great. 
 
 " We are inclined to the opinion, from the testimony of Dr. 
 Holton, who attended appellee after the amputation, that bad 
 surgery may have had not a little to do with bis present unfor- 
 tunate condition. He says, with all tenderness and respect for 
 the amputating surgeon, that from tbe ulceration and condition 
 there had been a great deal more sloughing of the soft parts than 
 had been anticipated by that operator. The metatarsal bone of 
 the great toe was naked, so far as the flesh was concerned. 
 He does not think his foot will heal unless some surgical atten- 
 tion is given to it. If it was amputated at the head of the 
 metatarsal bone it would be more likely to heal. This surgeon 
 further says, if the operation he has indicated should be per- 
 formed, be thinks his foot would heal up. It would not impair 
 its muscular action. If it should heal up, he could superintend 
 farming as well as ever, and plow and plant corn, and rake hay 
 as they do now-a-days, by riding, and be could haul grain. And 
 he certainly could saw and cut and split wood, feed cattle, attend 
 to his stallion, and do many useful things about a farm, all which 
 show be is neither two-thirds disabled, nor anything like it. 
 
 " The government of tbe United States, lauded everywhere 
 as a just and generous government, and by no means afraid to 
 disburse the public money freely, gives to its mutilated soldiers 
 — to those who have lost in 'battle, arms, legs, or other useful 
 member — about three hundred dollars a year, without regard to 
 their occupation, and in the worst cases of disability. This ver- 
 dict gives appellee a small fortune, the interest on which, at legal 
 
200 EXCESSIVE DAMAGES. 
 
 rates, would amount to near six hundred dollars a year, and lie 
 at the same time able to attend to almost all kinds of ordinary 
 business. What justice is there in it ?. 
 
 " The legislature of this state have declared, if, in a case like 
 this, death shall ensue, the utmost limit of recovery recoverable 
 by the next of kin, made a widow or orphans by the accident, 
 shall be five thousand dollars. These damages are given as com- 
 pensation for the actual loss of one whose labor contributed to 
 the stay and support of his widow and next of kin. No part of 
 it is given as solaee. What, then, must be thought of a verdict 
 given to a man who is not permanently injured, and who, in the 
 opinion of Dr. Holton, if proper surgical treatment is afforded 
 him, will not he seriously disabled ? To what else but to passion 
 and prejudice could the verdict be attributed ? 
 
 " This is not a case of a mere assessment of damages upon 
 an undisputed state of facts, but it is a case where different 
 men might very honestly draw different inferences from the evi- 
 dence. There is, as we repeat, much ground for believing that 
 the law was complied with by appellants, and still stronger 
 ground for the belief that appellee both saw and heard the train 
 before he reached the crossing, which considerations should have 
 had their proper influence in estimating the damages. No malice 
 was shown or pretended, or intentional wrong. In a case be- 
 tween individuals, where one wantonly and maliciously makes 
 an assault upon another,; and cuts off the toes of his adversary's 
 foot, but not designedly, while the law would hold him liable 
 for the whole injury consequent upon his unlawful act, no jury- 
 could be found who would coolly „ and uninfluenced by passion or 
 prejudice, give against the wrong-doer such a verdict as this. 
 We admit the case of a railroad train, running regardless of law, 
 demands at the hands of a jury something more in the way of 
 damages than a mere individual, and this for the protection of 
 the public; yet, while admitting this, we cannot perceive any- 
 thing in this case that should call down the vengeful power of 
 a jury against a party whose omission of duty was at least 
 questionable, and in favor of one whose own negligence is pretty 
 clearly established. We think justice requires the case should 
 undergo revision by another jury." 
 
HAZZARD AND MCKEAN CASES. 201 
 
 The opinion in the Hazzard Case declares that the 
 elements proper to be considered in estimating the 
 damages for an injury to the person, are the nature, 
 extent and permanency of the injury; the effect it has 
 produced and is likely to produce upon the physical 
 condition of the plaintiff ; his pain and suffering, 
 both mental and physical, past and future ; the effect 
 it has upon his pecuniary interests, both as regards 
 the expenses occasioned by the injury and the effect 
 it has upon his business. The same doctrine, substan- 
 tially, is laid down in the McKean Case, and that it is 
 manifestly sound all will admit. But the same can- 
 not be said of the application made by the court of 
 the doctrine, nor of the arguments by which its appli- 
 cation in those cases is sought to be sustained. 
 
 Hazzard, according to the opinion of the court, was 
 a practicing attorney, of high standing at the bar, and 
 the injury he suffered was the displacement of a small 
 bone of the foot called the astragalus, the ankle-bone, 
 knuckle-bone, or slingbone, as it is sometimes called, 
 the effect of which, according to the testimony of an 
 eminent surgeon, was, if the displaced piece was taken 
 out, to leave him a strong and useful foot, but it would 
 be flattened, the ankle stiff,, and the limb an inch 
 shorter. The jury awarded him eleven thousand dol- 
 lars. In commenting upon this verdict the court lay 
 down the following propositions : 
 
 1. The most serious effect of the injury will be to 
 cause him to limp some, requiring, probably, the use 
 of a cane to assist hinf in walking, but his physical 
 condition, as a whole, cannot, •from the nature of the 
 injury, be affected in any way. This proposition is 
 laid down by the court in such a way, and under such 
 circumstances, as to warrant the inference that the 
 court were of opinion the injury, so far as it affected 
 the physical condition of the plaintiff, only justified 
 
202 EXCESSIVE DAMAGES. 
 
 such an amount of damages as would be sufficient to 
 keep the plaintiff supplied with walking-sticks. 
 
 2. The expenses of the cure could be very accu- 
 rately estimated, and would amount to about two 
 hundred dollars. 
 
 3. For pain and suffering the jury would have a 
 right to be liberal in a proper case, but must not be 
 influenced by passion or prejudice. How large an 
 award of damages must be made to satisfy the court of 
 passion and prejudice on the part of the jury is not 
 intimated. 
 
 4. By far the most important inquiry of all, how- 
 ever, is the effect of the injury upon the professional 
 business of the plaintiff, and, as he secured continu- 
 ances of the suits in which he was engaged, and as his 
 lameness produced no loss of business, and did not 
 paralyze his laudable efforts to climb the steep 
 
 " Where Fame's proud temple shines afar," 
 
 it therefore follows that no damages should have been 
 allowed him for injury to his professional business. 
 
 5. Should a carpenter, blacksmith, or other person 
 whose living is obtained by manual labor, be crippled 
 in his hand, in so' far that it detracts from his power 
 of earning his accustomed livelihood, so far should the 
 jury give him damages over and above the usual dam- 
 ages for the . pain and suffering, medical attendance, 
 loss of business while confined, etc. 
 
 From the propositions thus announced by the court, 
 it is apparent that the measure* of damages for an in- 
 jury to the person is substantially the same as that for 
 an injury to a horse or other animal, for while, in the one 
 case, some allowance may be made for pain and suffer- 
 ing, but. in the other not; yet that element is regarded 
 as of trifling importance, the main question in each case 
 being the effect upon the capacity of the man or the ani- 
 
HAZZARD AND MCKEAN CASES. 203 
 
 mal to earn money. It would also seem to follow, from 
 the fifth proposition laid down by the court, that, if a 
 common laborer should lose a limb, he would be entitled 
 to greater compensation therefor than would a law- 
 yer, minister of the gospel, or physician, for a like in- 
 jury, for the effect upon the physical condition of the 
 injured party, the pain and suffering, the expense of 
 being cured, would be substantially the same in each 
 case, but the common laborer would be seriously dis- 
 abled and incapacitated for the work necessary to 
 obtain a livelihood, while the lawyer could try as many 
 lawsuits, the minister of the gospel preach as many 
 sermons, and the physician attend as many patients, as 
 he could before the injury. From all of which it 
 would seem that the best time for a railroad company 
 to cut a lawyer's leg off would be at the commence- 
 ment of his summer vacation, as it would then be 
 comparatively inexpensive, while if done in term time 
 it might come tolerably high — unless his brethren at 
 the bar would kindly consent to the continuance of 
 his cases. It would be practically immaterial, how- 
 ever, whether a judge's leg were cut off in term time 
 or in vacation. 
 
 McKean was a farmer. The injury to him consisted 
 m cutting off the toes of one foot. The amount 
 awarded by the jury was $5,875, of which the court 
 say $5,275 was allowed by the jury for the injury 
 to the person, and the remainder for injury to personal 
 property. In his oral argument, the counsel for the 
 appellant, Mr. Campbell, cited the Hazzard Case in 
 support of his position that the damages were exces- 
 sive. To this the counsel for the appellee, now one of 
 the circuit judges of this state, replied, in substance, that 
 he was very glad the Hazzard Case had been cited, 
 that he had it on his brief and relied upon it to sus- 
 tain the judgment in the case at bar, that in that case 
 
204 EXCESSIVE DAMAGES. 
 
 the plaintiff was a lawyer, who was injured in his 
 ankle, and the court had said his lameness would not 
 interfere with his business, nor paralyze his laudable 
 efforts to climb the steep 
 
 " Where Fame's proud temple shines afar." 
 
 But he further argued, the court had also declared in 
 that case, that should a person be injured whose avo- 
 cation in life is not professional, but dependent for 
 success on the free use of his limbs, the proper inquiry 
 would be the extent to which he was disabled, and he 
 said that his client was not a lawyer, but only a poor 
 clodhopper who had lost his toes, and therefore had 
 not the claws with which to climb the dizzy steep 
 
 " Where Fame's proud temple shines afar." 
 
 Hence, he insisted, under the ruling in the Hazzard 
 Case, the damages awarded in the case at bar could 
 not be regarded as excessive. 
 
 This argument, though highly enjoyed by the 
 members of the bar, was not appreciated by the 
 learned judge who had delivered the opinion in the 
 Hazzard Case, who took the view that, notwithstand- 
 ing the injury disabled McKean from doing farm work 
 which required walking, he could nevertheless saw 
 and cut and split wood, feed cattle, attend to his stall- 
 ion, and do many useful things about a farm, and 
 consequently was not two-thirds disabled, as one phy- 
 sician declared he was, and that $5,275 for his injury 
 was excessive. As a further reason why that amount of 
 damages should be regarded as excessive, it was said 
 that the government of the United States, lauded 
 everywhere as a just and generous government, and by 
 no means afraid to disburse the public money freely, 
 gives to soldiers, wholly disabled in battle, only $300 
 per year as a pension, and the legislature of the state 
 
HAZZARD AND MCKEAN CASES. 205 
 
 has limited the amount of the recovery for an injury- 
 resulting in death to $5,000. 
 
 It is not perceived wherein any action of congress 
 in fixing the amount of the pension to be awarded to 
 a disabled soldier can affect the amount of damages 
 to be awarded by an Illinois jury for an injury to 
 the person. If it could, it would follow that, were 
 congress to repeal all the laws allowing pensions, no 
 damages at all could be allowed by a jury for such 
 an injury. It would also follow that the allowance 
 of exorbitant pensions would justify excessive ver- 
 dicts. Again, the fact that a private soldier's pay was 
 fixed at $13 per month would form the proper basis 
 for estimating the pecuniary injuries resulting from 
 the death of the head of a family. 
 
 Nor is there any force in the argument that the 
 -legislature has limited the amount of the recovery in 
 the case of an injury resulting in death to $5,000. 
 The legislature undoubtedly has the power to limit the 
 amount that may be recovered in such a case, for the 
 right of action is created by statute; but its power to 
 limit the amount of the recovery in the case of an 
 injury to the person may well be doubted, for the 
 power to limit the recovery would seem to imply the 
 power to prohibit a recovery altogether ; and as such 
 right of recovery existed at the time of the adoption 
 of the constitution, any interference with it by the 
 legislature would seem to be in violation of that pro- 
 vision which declares that every person ought to find 
 a certain remedy in the laws for all injuries and 
 wrongs which he may receive in his person, property 
 or reputation, and he ought to obtain, by law, right 
 and justice freely, and without being obliged to pur- 
 chase it, completely and without denial, promptly and 
 without delay. Besides, if this $5,000 limit is used as 
 an argument in one case, it should be in all, and its 
 
206 EXCESSIVE DAMAGES. 
 
 effect would be to annul every verdict of over that 
 amount in an action for an injury to the person. 
 
 This same argument, the reader will find, is ad- 
 vanced by the court in very many cases where the 
 court have arrived at the conclusion that the damages 
 are excessive; and since the supreme court have been 
 deprived of the power of reviewing the finding of the 
 jury as to the amount of damages, the same refrain 
 has been taken up by the appellate courts and repeated 
 until it would seem that it ought to be worn out. On 
 the other hand, when the damages in an action for an 
 injury resulting in death are discussed, we are con- 
 stantly reminded that the statute only allows a recov- 
 ery for pecuniary injuries and nothing for solatium, 
 and this often furnishes a ground for the reversal of a 
 judgment in such a case. 
 
 The fact that this argument has been so freely and 
 so often indulged in is one reason why the legislature 
 should amend the statute by striking out the $5,000 
 limit. But the strongest reason for striking it out is, 
 that it is manifestly unjust. It is not found in the 
 English statute, nor in the statutes of many of the 
 states, such as Arkansas, California, Iowa, Kentucky, 
 Louisiana, Maryland, Mississippi, North Carolina, New 
 Jersey, Pennsylvania, Rhode Island, Texas and Ver- 
 mont. No species of reasoning which can justify the 
 right of recovery can at the same time justify a limi- 
 tation as to amount. If it is made an actionable 
 injury to kill a human being, the measure of damages 
 should be the same as it is for other torts. The limit 
 was inserted in the statute for the benefit of railroad 
 companies at a time when there was a disposition to 
 aid and encourage railroad-building by land grants, 
 subsidies and other benefits, and the necessity for such 
 aid and encouragement having long ago ceased to 
 exist, the limit should be stricken out. The sum of 
 
HAZZARD AND MCKEAN CASES. 207 
 
 $5,000 is little enough in any case of injury resulting 
 in death. Indeed, in Field on Damages, section 882, 
 it is said : 
 
 "As a general rale, perhaps, it may be said that, in the 
 absence of statutory limitation, damages resulting from the 
 death of a person are not regarded as excessive if they do not 
 exceed $5,000." 
 
 ' In the case of a professional man enjoying a large 
 income and in the prime of life, the sum of $5,000 is 
 grossly inadequate compensation for his death. Take, 
 for example, the case of a judge of the Supreme Court 
 of Illinois, who receives a salary of $5,000, and sup- 
 pose that he is killed at the age of , sixty, when, 
 according to Dr. Wigglesworth, his expectation of life 
 is about fifteen years, during which he could earn for 
 himself and his family about $75,000. Who will not 
 say that $5,000 damages for an injury resulting in his 
 death would not be so glaringly inadequate as to shock 
 the understanding ? It would, under the present law, 
 be far more profitable for a railroad company to kill 
 the judge than to inflict upon him a serious injury not 
 resulting in death, unless, of course, the injury was 
 such as to fall within the rule laid down in the Haz- 
 zard Case. 
 
 Another objection to this $5,000 limit is, as hereto- 
 fore pointed out, that it operates to encourage railroad 
 companies to resist the payment of claims, however 
 just they may be. Under the statute the amount of 
 damages awarded cannot draw interest until the entry 
 of final judgment, which, in very many cases, is not- 
 made for several years after the infliction of the injury. 
 Computing interest at six per cent., each year's delay 
 in the entry of final judgment saves to the company 
 $300, or, computing it at ten per cent., as it always is 
 computed by the supreme court in estimating the value 
 to the plaintiff of the sum awarded him, each year's 
 
208 EXCESSIVE DAMAGES. 
 
 • 
 
 delay saves the company $500, an amount amply suffi- 
 cient to cover all the expenses of each year of the 
 litigation. The advantages that may result to a de- 
 fendant by delay are well illustrated by the Moranda 
 Case, 93 111. 302, and 108 111. 576, which, upon the first 
 appeal, was taken under advisement by the supreme 
 court October 6, 1877, and decided February 5, 1880. 
 The second judgment was reversed by the supreme 
 court January 23, 1884, thus causing the plaintiff a 
 delay of over seven years from the time of the first 
 trial to the time of the third trial. Had the pecuniary 
 loss been $5,000, the saving to the defendant by the 
 delay, computing interest at six per cent., would have 
 been over $2,100. Well might the widow and children 
 in that case say with Lord Bacon : 
 
 " There be (saith the Scripture) 'that turn judgment into 
 wormwood;' and surely there be also that turn it into vinegar; 
 for injustice maketh it bitter, and delays make it sour." 
 
 A railroad company, therefore, has everything to 
 gain and nothing to lose by resisting the most just 
 claim. On the other hand, the plaintiff, although the 
 damages sustained may largely exceed $5,000, can better 
 afford to accept $4,000 or $4,500 in full settlement than 
 to litigate. This condition of the law is taken advan- 
 tage of by railroad companies. One of the most power- 
 ful of these corporations, by the admitted gross negli- 
 gence of whose servants, resulting in a collision of 
 trains over a year ago, seven passengers were killed, 
 one of whom was a physician and another a lawyer, 
 each in the prime of life and in the enjoyment of a 
 large income, compelled the widow and children of the - 
 physician to accept $4,500 in full settlement rather 
 than establish their claim by litigation, and because 1 
 the widow and children of the lawyer would not accept 
 the same or a less amount, compelled them to com 
 mence a suit, which, after considerable delay, owin- 
 
HAZZARD AND MCKEAN CASES. 209 
 
 to a change of venue taken by the company on account 
 of the prejudice of one of the circuit judges, was also 
 settled by the payment of $4,500. 
 
 Such are a few of the practical results of this stat- 
 ute, and they are of such a character as to demand its 
 modification by striking out the clause limiting the 
 damages to $5,000. And it should be amended in 
 another particular. It should in no case be an advan- 
 tage to a railroad company, or to any other tort feasor, 
 to kill a man rather than -to seriously cripple him 
 •without causing his death. For this reason the Cali- 
 fornia statute is commendable. It reads as 'follows: 
 
 " When the death of a person is caused by the wrongful act 
 or neglect of another, his heirs or personal representatives may 
 maintain an action for damages against the person causing the 
 death; or when the death of a person is caused by an injury 
 received in falling through an opening or defective place in a 
 sidewalk, street, alley, square or wharf, his heirs or personal 
 representatives may maintain an action for damages against the 
 person whose duty it was, at the time of the injury, to have 
 kept in repair such sidewalk or other place. In every such action 
 the jury may give such damages, pecuniary or exemplary, as 
 under all the circumstances of the case may seem to them jurt." 
 
 "With such a statute as that in force in this state, 
 there would be some inducement on the part of rail- 
 road companies to use proper care to avoid killing 
 people, and no encouragement to them to defraud a 
 poor widow and her children out of the paltry sum 
 of $500 by threatening resistance 'of a just claim in 
 
 the courts. 
 
 Another most serious objection to the opinion of 
 Mr. Justice Breese in the McKean Case, is its utter 
 disregard of the elementary principles which should 
 govern courts in reviewing the allowance of damages 
 •made by a jury in an action ex delicto. In such a case, 
 as we have before seen, the damages do not rest in. 
 
210 EXCESSIVE DAMAGES. 
 
 computation, nor can they be ascertained with cer- 
 tainty, but must of necessity be judged of and appre- 
 ciated by the view that may be taken of them by 
 impartial men. The law therefore " makes every allow- 
 ance for different dispositions, capacities, views, and 
 even frailties, in the examination of heterogeneous 
 matters of fact where no criterion can be supplied, 
 and it is not until the result of the deliberations of the 
 jury appear in a form calculated to shock the under- 
 standing and impose no dubious conviction of their 
 prejudice and passion, that courts have found them- 
 selves compelled to interfere." 
 
 How is it possible to accurately estimate the 
 amount of damages that should be awarded for the 
 loss of the toes of one foot ? How much should be 
 the compensation for the pain and suffering caused by 
 such an injury? How much for going through life a 
 cripple, and being unable to do the work necessary to 
 profitably carry on one's occupation? How much for 
 being reduced from a full man to half a man, or to a 
 third of a man? Manifestly these are questions to 
 which no two intelligent men would be likely to give 
 precisely the same answer. Hence the propriety of 
 submitting them to a jury of twelve men to exercise 
 their best judgment, and of making their determina- 
 tion final, unless it appear at first blush plainly and 
 palpably unjust. 
 
 But how do the court look at the case? They en- 
 deavor to make a computation, as though the damages 
 were susceptible of computation. They estimate the 
 pain and suffering at a trifling amount, and the dis- 
 comfort of a lifetime of lameness at nothing, and 
 conclude that, notwithstanding a farmer cannot do all 
 the work a farmer ought to be able to do, he can never- 
 theless saw and cut and split wood, feed cattle, attend- 
 a "stable horse," etc., and consequently the sum of 
 
HAZZARD AND MCKEAN CASES. 211 
 
 $5,275 for the loss of his toes is so outrageously ex- 
 cessive as to shock the understanding and furnish 
 palpable evidence of passion and prejudice on the part 
 of the jury. 
 
 Passion and prejudice may influence a judge no 
 less than a juryman, and when they do, his opinions 
 often show upon their face that they are the arguments 
 of an advocate instead of the sober and impartial 
 reasonings of a judge. Such is the case with these 
 two opinions. There is one little inconsistency in 
 them, which, though trifling in itself, shows what a 
 judge may do when he assumes the role of an advo- 
 cate. In the Hazzard Case, the plaintiff insisted that 
 the verdict was not large enough, that it should have 
 been sufficient to enable him to support his family 
 upon the interest thereof. The court say this would 
 require $2,000 per annum, and a fund to yield that 
 amount at six per cent, should be $33,333.33. This 
 computation is made for the evident purpose of show- 
 ing how enormous the verdict would have to be on 
 plaintiff's theory. But in the McKean Case, for the 
 purpose of impressing upon the reader the enormity 
 of the verdict of $5,275 for injuries to the person, the 
 court say "this verdict gives appellee^ small fortune, 
 the interest on which, at legal rates, would amount 
 to nearly $600 a year," which result could not be 
 arrived at without reckoning the interest at nearly 
 twelve per cent. This, of course, is but a small matter, 
 and perhaps it is of so little consequence that it is 
 scarcely worth while to call attention to it. But it 
 is to be remembered that these two opinions are some- 
 what peculiar, and are scarcely susceptible of any 
 other treatment than that which may be applied by 
 "descending to particulars." It may be conceded that 
 $11,000 was too much for shortening a lawyer's leg 
 only an inch, and that the counsel for the appellee in 
 
212 EXCESSIVE DAMAGES. 
 
 the McKean Case was a little indiscreet in his allusion 
 to the poetic portion of the opinion in the Hazzard 
 Case, but those facts constituted no justification for 
 the promulgation of erroneous principles and unsound 
 arguments in their support. 
 
 In C. & A. R. R. Co, v. Shannon, 43 111. 346, Mr. 
 Justice Lawrence, in delivering the opinion of the 
 court, says: 
 
 "We hold, then, that such next of kin as have suffered 
 pecuniary injury from the death of deceased may recover pe- 
 cuniary compensatory damages under this statute. How this 
 pecuniary damage is to be measured, — in other words, what is to 
 be the amount of the verdict, must be largely left (within the 
 limits of the statute) to the discretion of the jury. The legisla- 
 ture has used language which seems to recognize this difficulty 
 of exact measurement, and commits the question especially to 
 the finding of the jury. The law provides, that ' they are to give 
 such damages as they shall deem a fair and just compensation.' 
 What the life of one person is worth, in a pecuniary sense, to 
 another, is a question incapable, from its nature, of exact deter- 
 mination. Although the wealth or poverty of the deceased may 
 be important elements, they are not the only ones that enter into 
 the problem. If the deceased was poor, the loss may consist in 
 the fact that his personal exertions can no longer support those 
 dependent upon him. If rich, the loss may be nearly as great, 
 in the deprivation of the care and management of his business 
 or estate. In creating this right of action the legislature have 
 confided to the jury a subject that does not lie within the limits 
 of exact proof. But in this, as in all other actions, the court 
 must so far supervise the verdict as to see that it is not the result 
 of unreasoning prejudice or passion. In the case at bar it is 
 in proof that the father of the deceased was fifty years old, and 
 had little property besides his homestead; that the deceased lived 
 at his father's when not on the road, and contributed to the 
 support of the family, and that his father had an insurance 
 policy on his (the father's) life, for the benefit of the mother 
 of deceased, the premium upon which, $118, the deceased had 
 
THE WELDON CASE. 213 
 
 paid, and promised to keep paid. The verdict was for $2,000, and 
 we do not feel authorized to say it was too large." 
 
 In I. C. R. R. Co. v. Weldon, 52 111. 295, Mr. Justice 
 Breese, in delivering the opinion of the court, says: 
 
 "A point is made upon the amount of damages allowed. It 
 will be perceived the jury have gone to the extent of the law, 
 and, without any proof other than the fact of death, have said 
 the pecuniary loss thereby to his widow and next of kin is five 
 thousand dollars, and no less. 
 
 "By section two of the act under which this action is 
 brought, a jury is permitted to give such damages as they shall 
 deem a fair and just compensation, with reference to the pecu- 
 niary injuries resulting from the death, to the widow and next 
 of kin of the deceased, not exceeding five thousand dollars. The 
 only injury for which a jury can estimate is a pecuniary injury; 
 that is, what have the widow and next of kin lost, in a money 
 view, by the death? Nothing is to be allowed by way of solace. 
 In Conant v. Griffin, Admr., 48 111. 410, which was a case under 
 this statute, it was distinctly announced, as it had previously been 
 in other like cases, that the damages could only be for the 
 pecuniary loss, not for the bereavement. City of Chicago v. 
 Major, 18 ib. 349; Chicago & Rock Island Railroad Co. v. Morris, 
 26 ib. 400. The amount awarded by the jury, placed at inter- 
 est, would yield five hundred dollars per annum. There was no 
 proof that deceased earned, annually, one half of that amount by 
 his labor, or that his prospects were such, and such his business 
 capacity, as to justify a reasonable expectation that he would, in 
 the future, earn one-half the interest on that sum. He was a 
 common laboring man, but at what wages there was no proof. 
 This court said, in the case of the Chicago & Alton Railroad 
 Co. v. Shannon, Admr., 43 111. 338, if the deceased was poor, the 
 loss may consist in the fact that his personal exertions can no 
 longer support those dependent upon him, but the subject itself 
 does not lie within the limits of exact proof. While this is so, 
 yet surely some evidence should be given of the profits of the 
 labor of the deceased, and what he might, in all probability, earn 
 for the future support of his wife and children. In this consists 
 essentially the loss to the family. If some rule is not prescribed 
 
214 EXCESSIVE DAMAGES. 
 
 by which juries must be governed in such cases, the result will 
 be in all cases a verdict to the extent of the law. The jury have 
 no right to find arbitrarily, that the death of any husband and 
 father results in a pecuniary loss to his widow and next of kin 
 of five thousand dollars. A verdict rendered without evidence 
 on a material point, and for the largest amount provided by law, 
 bears very much the appearance of being the result of prejudice 
 and passion. 
 
 "For the reasons given, the judgment is reversed and the 
 cause remanded." 
 
 There is an apparent inconsistency between the 
 reasoning of the court in the Shannon Case and that in 
 the Weldon Case. This inconsistency was brought 
 about very likely by the fact that the amount of dama- 
 ges awarded in the one case was small and in the other 
 .large. Those who have had occasion to investigate 
 judicial opinions must have come to the conclusion 
 that the view's entertained by the court as to the" merits 
 of a ease have often had a controlling influence upon 
 the decision of the court upon the questions of law 
 involved. When, judges are satisfied with a verdict they 
 are very apt to announce principles of law which they 
 refuse to apply when a verdict appears to be unjust. 
 Accordingly, in the Shannon Case, where the verdict 
 was for but $2,000, which the court did not feel author- 
 ized to say was too large, we find it declared that 
 "what the life of one person is worth, in a pecuniary 
 sense, to another is a question incapable, from its 
 nature, of exact determination," and that it was for 
 this reason that the legislature committed the question 
 especially to the finding of the jury by declaring that 
 they should give "such damages as they shall deem a 
 fair and just compensation." But in the Weldon Case, 
 where the verdict was for $5,000, and was regarded as 
 excessive, we find the court again, for the purpose of 
 demonstrating the enormity of the finding of the jury, 
 
THE WELDON CASE. 215 
 
 reckoning interest at ten per cent, and requiring that 
 the evidence in the case should be such as to enable the 
 jury to compute the damages with almost mathemati- 
 cal accuracy, and thus violating elementary principles. 
 It is quite true that no witnesses were introduced to 
 show the wages earned by the deceased, but why the 
 necessity of such evidence? That such evidence was 
 not necessary was subsequently ruled by the court in 
 City of Chicago v. Scholten, 75 111. 470, where the jury 
 awarded $2,833,33 for the negligent killing of a boy 
 twelve years of age, and Mr. Justice Scott, in delivering 
 the opinion of the court, says: 
 
 "The court, at request of plaintiff, instructed the jury, 
 that in case they found the eity had been guilty of negligence, 
 in failing to keep its sidewalks in proper and suitable repair, and 
 allowing the same to remain so out of repair after such con- 
 dition was known, or ought to have been known, then they have 
 a 'right to find for the plaintiff, and should assess the damages 
 at such sum as will, in the judgment of the jury, compensate the 
 plaintiff, and those in whose interest he sues, for the loss of the 
 deceased.' 
 
 "One reason suggested why this instruction should have 
 been refused is, that it is not based on any evidence in the case. 
 This is a misapprehension of the facts. Where there is any 
 evidence, however slight, it is sufficient to sustain an instruction 
 upon the hypothetical case it tends to prove. As much evidence 
 is contained in this record as was given in The City of Chicago 
 v. Major, 18 111. 349, where a verdict for $800 was sustained for 
 causing the death of a child four years old. The child was too 
 young to have rendered any services to its parents, or next of 
 kin, and all that was proven was the age and relationship. It 
 was said, the jury was authorized to estimate the pecuniary 
 damages, from the facts proven, in connection with their own 
 knowledge and experience. The doctrine of this case has been 
 adhered to in all subsequent cases arising under this statute. 
 C. & E. L R. R. Co. v. Morris, 26 111. 400 ; C. & A. R. R. Co. v. 
 Shannon, 43 ib. 346. 
 
216 EXCESSIVE DAMAGES. 
 
 " In the case at bar, proof was made of the age of the deceased, 
 the names of the next of kin, and that his parents were laboring 
 people. 
 
 " These facts alone were sufficient on which base an instruc- 
 tion, embodying the principle contained in this one. It was 
 not indispensable there should be proof of actual services of 
 pecuniary value rendered to the next of kin, nor that any 
 witness should express an opinion as to the value of such ser- 
 vices, before a recovery could be had." 
 
 The judgment in that case was, however, reversed 
 on the ground that the language of the instruction 
 was guch that the jury might have inferred they were 
 at liberty to award other than pecuniary compensation. 
 But the point was expressly decided that the jury were 
 authorized to estimate the damages, from the facts 
 proven, in connection with their own knowledge and 
 experience, and that proof as to the value of services 
 rendered or to be rendered was not necessary. 
 
 Can it, indeed, well be supposed that twelve intelli- 
 gent men can be placed in a jury box, who are wholly 
 ignorant as to what would be reasonable wages for a 
 laboring man engaged in doing the work that Weldon 
 was? Again, computing interest at six per cent., as it 
 is computed in all other cases, taking into account 
 the high price of the necessaries of life and the 
 depreciation of the currency in 1868, and also the 
 delay, expense and trouble attendant upon obtaining 
 judgment, who shall say that a verdict for $5,000 
 awarded by a jury, clothed by law with an apparently 
 unlimited discretion of awarding "such damages as 
 they may deem a fair and just compensation," for the 
 negligent killing of the head of a family, is so grossly 
 excessive as to appear at first blush to be the progeny 
 of passion and prejudice? 
 
 In C. R. I. & P. E. R. Co. v. McAra, 52 111. 297, Mr. 
 Justice Lawrence, in delivering the opinion of the 
 court, says: 
 
THE WELCH CASE. 217 
 
 " We can, however, find no warrant in the evidence for the 
 amount of damages. The plaintiff had no bones broken. He 
 stated at the time of the accident he was not much hurt. In 
 describing the extent of the injury, in his own testimony, he 
 says he was severely bruised on his left side. Dr. Peck testifies 
 that he and Dr. Conway agreed, when they examined him, that 
 it was merely a muscular injury. He kept his bed nearly all the 
 time for a month, getting up, however, and walking about the 
 house every day, and claimed to be still lame at the trial. The 
 physicians who testified are unable to give a satisfactory ex- 
 planation of his lameness, the theory advanced by some of them 
 being pronounced impossible by the others. Four or five 
 different witnesses testify to have seen him on as many different 
 occasions, when in a state of some excitement, walking and even 
 running for a short distance, without showing any appearance 
 of lameness. While we cannot accept the theory of appellant's 
 counsel, that his lameness was wholly feigned, we can not, on 
 the other hand, resist the conviction that his recovery would 
 have been much more rapid if he had had no claim for damages, 
 and that a verdict of five thousand dollars, which the statute fixes 
 as the maximum limit of damages for death itself, in a suit 
 brought for the benefit of the widow and next of kin, is wholly 
 disproportionate to the injuries received by this appellee. 
 
 " We think it our duty to send this case to another jury." 
 
 In I. C. R. R. Co. v. Welch, 52 111. 188, Mr. Justice 
 Lawrence, in delivering the opinion of the court, says: 
 
 " Doubtless the twelve men who composed this jury were, 
 individually, honest men, but we cannot believe they had a 
 proper sense of their duty and responsibility as jurors. There 
 was in this case no malice or oppression on the part of the com- 
 pany, and therefore no room for vindictive damages. The injury 
 to the plaintiff was merely an accident, resulting, it is true, from 
 the carelessness of the company, but still an accident in the 
 sense that it was unintentional. The injury, although severe, is 
 not one that wholly disables the plaintiff!. He testifies that he 
 has since been learning the trade of a printer. His wages 
 as a brakeman were forty dollars per month, amounting to four 
 hundred and eighty dollars per annum. The actual income he 
 
218 EXCESSIVE DAMAGES. 
 
 would derive from ten thousand dollars, the amount of this 
 verdict, would be, at the ordinary rate of interest in this state, 
 one thousand dollars. The wages he was receiving would not 
 amount to this verdict in twenty years. In one sense, it is true, 
 a pecuniary value cannot he placed upon an arm. But inasmuch 
 as the law can give only a pecuniary compensation, and as the 
 plaintiff seeks that by his suit, we are obliged to take a practical 
 and almost unfeeling view of this question, and when the injury 
 is one that will still leave a plaintiff able to earn as much, in 
 many occupations, as he was earning before the accident, we 
 must hold a verdict to be unreasonable which gives him at once 
 a sum larger than the great majority of the community earn by 
 a long life of toil, and the interest of 'which would amount to more 
 than twice his wages. When we consider this, and remember 
 that such verdicts for injuries inflicted without design or malice 
 are never rendered in suits between individuals, and that the 
 statute limits the damages for the loss of life to five thousand 
 dollars, we think it our duty to pronounce the damages in this 
 case excessive." 
 
 In P., C. & St. L. R'y Co. v. Thompson, 56 111. 143, 
 Mr. Justice Lawrence, in delivering the opinion of the 
 court, says : 
 
 " The only remaining question is as to the quantum of dam- 
 ages. The jury found |5,000. It is claimed the verdict is 
 unreasonably large. The proof is conflicting as to whether the 
 plaintiff was injured in the membranous covering of the spine, 
 or merely in the muscular ligaments connected with it. He was 
 confined from two to three weeks to his bed, but did not, when 
 quiet, suffer greatly from pain. After that period he began to 
 walk about, though with great difficulty, but did not resume 
 business in his office, for three months. At the time of the trial, 
 thirteen months after the accident, he was still feeling some 
 pain and inconvenience. If this temporary confinement and 
 pain were the only consequences of the injury, we should not • 
 hesitate to pronounce the damages excessive. But the physician 
 who attended the plaintiff testified that in his opinion the plain- 
 tiff would never entirely recover, and that, in future, any im- 
 prudence or unusual exposure, which would not affect a person 
 
THE JACKSON CASE. 219 
 
 in sound condition, might lead to very serious and even fatal 
 results. Two other physicians, called by plaintiff, concurred* in 
 this view, while two, called by the defendant, thought the injury 
 was only to the muscles, and not to the spine or its coverings, 
 and that the recovery was already substantially complete. In 
 the former view the damages cannot .be considered excessive, 
 and we have no right to say the jury erred in adopting it, 
 rather than that of the physicians called by defendant." 
 
 In C. & K W. R'y Co. v. Fillmore, 57 111. 267, Mr. 
 Justice Thornton, in delivering the opinion of the 
 court, says : 
 
 "The injury to appellee was of a serious and permanent 
 character. He is a cripple for life. He has suffered pain and 
 anguish, and been involved in large expenditures of money. 
 The evidence, however, fails to disclose any wantonness or will- 
 fulness on the part of the company, and therefore we cannot 
 appreciate the motives which induced the finding of the jury. 
 The verdict was for $25,000. There is no foundation in the 
 evidence for the damages awarded. In case of death, our statute 
 only allows $5,000 for negligent acts, however gross. 
 
 "For a similar injury, inflicted by an individual, no jury 
 would find such a verdict. However reluctant to disturb the 
 verdict of a jury for such cause, we must pronounce the dam- 
 ages allowed as grossly excessive. We shall always hold railway 
 companies to a full accountability for all damages from wrong- 
 ful acts, and at the same time guard them from being made 
 victims of popular prejudice." 
 
 In C. & N. W. R'y Co. v. Jackson, 55 111. 493, Mr. Jus- 
 tice Walker, in delivering the opinion of the court, 
 
 says: 
 
 " This was an action on the case, brought by appellee, in 
 the Kane Circuit Court, against appellants, to recover for inju- 
 ries received by falling from a car and having his legs so badly 
 injured or crushed by the engine passing over them, that they had 
 to be amputated." 
 
220 EXCESSIVE DAMAGES. 
 
 After discussing the evidence and finding that a 
 verdict for the appellee was warranted by the evidence, 
 the learned judge further says : 
 
 "We come now to the consideration of the question of 
 damages. $18,000 is so large a sum that we regard it excessive. 
 That amount, put at interest at the highest legal rate, would 
 produce annually $1,800 — more, by a large sum, than is obtained 
 by the most skillful mechanics for their labor, while appellee, in 
 the pursuit of his calling as a brakeman, could probably not 
 have received more than one-third of that sum. It is true that 
 appellee has received a grievous injury, and has been rendered 
 almost unfitted for business; but the railroad company should 
 not be required to render to him a sum which would produce 
 a greater income than he could have earned had he not been 
 injured. He is only entitled to compensation, and not to vindic- 
 tive damages, as corporations are not liable to more than com- 
 pensatory damages, unless the injury is wanton or willful, and 
 that is not the case in this record. But we can see that, after 
 deducting physicians' bills, loss of time, and other expenses, 
 including counsel fees, the sum left would, at interest, produce 
 an annual sum largely above any amount he could have expected 
 to earn had he not been disabled. 
 
 " This verdict seems to have been the result of passion or 
 prejudice, and not of calm and dispassionate reflection. The 
 finding must be in proportion to the injury sustained, and when 
 it is greatly excessive, as it is in this case, it will be set aside." 
 
 Here again we find the court, for the purpose of 
 illustrating the enormity of the verdict, computing 
 interest at ten per cent instead of at six, the rate used 
 for the purpose of ascertaining the value of an annuity, 
 or of a life estate in realty, and the rate at which 
 interest on a judgment is computed. We also find it 
 solemnly declared by seven judges that for negligently 
 cutting a man's two legs off "the railroad company 
 should not be required to render to him a sum which 
 would produce a greater income than he could have 
 earned had he not been injured," and thus an injury to 
 
THE JACKSON CASE. 221 
 
 a human being is treated almost precisely like an 
 injury to an animal. 
 
 The jury must have taken a more practical and 
 liberal view of the matter. As practical men they 
 might have made the following estimates: 
 
 1. Incidental expenses, $200, and counsel fees, 
 $1,800. This estimate of counsel fees at ten per cent, 
 of the amount recovered any respectable lawyer would 
 say was very reasonable. 
 
 2. Interest on the remaining $16,000 at six per 
 cent, from the date of the injury to the time of the 
 judgment, a little over two years, about $2,000, leaving 
 $14,000. 
 
 3. Expenses of being cured $1,000, leaving $13,000. 
 
 4. Pain and suffering about $1,000, leaving $12,000. 
 
 5. Permanent injury to general health, and physi- 
 cal and mental suffering necessarily attendant upon 
 going through life without legs, about $5,000. 
 
 6. A fund to place at interest for support and for 
 the payment of taxes and other expenses, about $7,000, 
 the net income upon which, after the payment of taxes 
 and other expenses, would scarcely exceed $350. 
 
 The items for incidental expenses and counsel fees 
 in the above estimate are, of course, not proper items, 
 under existing laws, to be considered, but they should 
 be. All the other items are legitimate and are not 
 exorbitant. It is certain that no man without legs 
 would hesitate, if he had the means, to give $18,000, 
 or much more, to be supplied with those appendages, 
 and there is no sound reason in law or justice that 
 entitles a railroad company to take a man's legs by 
 paying him simply what he could earn were he not 
 deprived of them. But conceding that $18,000 is an 
 exorbitant amount, let us ask which is the most 
 shocking to every man's natural sense of justice, the 
 verdict of a jury of $18,000 for the loss of both legs, or 
 
'222 EXCESSIVE DAMAGES. 
 
 the intimation in the opinion of a court of last resort 
 that a railroad company should not be required to pay 
 for such an injury more than the injured party could 
 have earned with two legs, and that one third of 
 $18,000, or $6,000, would be amply sufficient compen- 
 sation? 
 
 This opinion of the court, like many others, bears 
 upon its face evidence of the effect upon the court of 
 the sophistries embodied in the arguments of railroad 
 lawyers. In no other way can the fact be accounted for 
 that the court has been led to declare that a railroad 
 company should only pay for a limb an amount suffi- 
 cient to cover the party's actual pecuniary loss. The 
 presistency with which these corporation attorneys 
 present and argue the most frivolous points is abso- 
 lutely amazing. A fair specimen of the points made 
 in railroad cases is to be found in the following extract 
 from the opinion of the court in the case under consid- 
 eration: 
 
 "It is first insisted that there was a variance between the 
 declaration and the proof; that in the declaration it is averred 
 that the injury occurred while appellee was acting as a brakeman 
 on a freight train of appellants, while the proof shows that he 
 was acting as a brakeman in switching cars at the station, in 
 making up a freight train. There is no dispute but the three or 
 four cars being switched were freight cars, and were being pro- 
 pelled by an engine, and were what is generally understood to be 
 a freight train. It was a train of freight cars, and therefore a 
 freight train. It was a train used for the transportation of 
 freight, as contradistinguished from a train composed of cars 
 usually employed in transporting passengers, and called a pas- 
 senger train. In this we perceive no variance, and the evidence 
 was properly admitted for the consideration of the jury. " 
 
 Why is it that railroad lawyers persist in making 
 such points as the above before the supreme court ? 
 The answer is, that they are encouraged to do so by 
 
THE WILSON CASE. 223 
 
 the opinions of the court. The decision of a railroad 
 case on its merits is, in that court, a thing of rare oc- 
 currence. More than one-half of the decisions in such 
 cases are made upon points no more affecting the 
 real merits than the above important question of 
 variance. Case after case is reversed for supposed 
 errors in instructions or in the admission or rejection 
 of evidence which all concerned, excepting the su- 
 preme court, know did not have, or could not have 
 had, any effect upon the verdict of the jury. 
 
 In C. & A. E. E. Co. v. Wilson, 63 111. 170, Mr. Justice 
 Walker, in delivering the opinion of the court, says : 
 
 "After receiving the injury appellee was taken to a hotel 
 close by, and his right hand being badly mangled, it was ampu- 
 tated. For some days h'is life was believed to be in danger. 
 He was unable to attend to his business for about six months 
 after receiving the injury, and expended, as the evidence shows, 
 about $1,000 in paying physicians' bills, medicines, board and 
 nurses. His occupation is that of a teacher of music, arid the 
 proof tends to show that he earned about $200 per month, and 
 that he is less successful since his injury ; and he is under the 
 necessity of hiring an assistant. These are the material facts 
 developed on the trial. The case was twice tried by the court 
 and a jury, the first trial resulting in a verdict of $14,000 ; the 
 latter in $8,000, upon which judgment was rendered. * * * 
 
 " We now come to consider the question whether the dan> 
 ages are so far excessive as to require a reversal. Whilst they 
 are high, were it not for the fact that there was such gross neg- 
 ligence on the part of the employes of the company, this verdict 
 would probably have been excessive. When the company neg- 
 lected to make the change of their track when their attention 
 was called to the danger it involved, it indicated such reckless- 
 ness as authorized punitive damages. When appellee had lost 
 his hand, had been rendered thereby incapable of performing on 
 a musical instrument necessary to his musical performances, and 
 being compelled to employ an assistant at a large expense to 
 pursue his business, and having to submit to greatly reduced 
 
224 EXCESSIVE DAMAGES. 
 
 income, and having been compelled to lose a large sum whilst 
 being cured, and being at large expense in board and physicians' 
 bills, he was entitled to a large portion of this sum as mere 
 compensation, and the amount allowed as punitive damages is 
 not excessive. 
 
 " Perceiving no error in this record, the judgment is affirmed." 
 
 The plaintiff in the above case, before the injury, 
 was, as stated by the court, able to earn $200 per 
 month. Through the injury he lost six months' busi- 
 ness, or $1,200, and he paid $1,000 for medical attend- 
 ance, making in all a pecuniary loss, up to the time of 
 his recovery, of $2,200. Deducting this from $8,000 
 awarded by the jury, and we have $5,800 as the 
 amount awarded for pain and suffering and permanent 
 injury. If we estimate six months' pain and suffering 
 and the discomfort of having but one hand for the 
 remainder of his lifetime at the moderate amount of 
 $800, an amount so small as to shock the understand- 
 ing of most men, we have left $5,000, the annual 
 interest on which would be $300, or $25 per month, as 
 recompense for this musician's loss of power to play 
 on musical instruments, his being compelled to employ 
 an assistant at large expense, and of loss of patronage 
 which would necessarily result from such an, injury. 
 Yet we are given to understand by the court, that the 
 judgment would have been reversed had not the cir- 
 cumstances of the case justified vindictive damages ; 
 that is to say, that such a verdict, under circumstances 
 not authorizing punitive damages, would have exhib- 
 ited the result of the deliberations of the jury "in 
 a form calculated to shock the understanding and im- 
 pose no dubious conviction of their prejudice and 
 passion," or, as Mr. Justice Treat, in McNamara v. 
 King, supra, puts it, it would have been "apparent at 
 the first blush that the damages are glaringly exces- 
 sive." 
 
THE BECKER CASE. 225 
 
 In C. & A. R. R. Co. v. Becker, 84 111. 484, in which 
 the jury had awarded $2,000 damages for negligence 
 resulting in the-death of a boy betweensix and seven 
 years old, after a previous judgment had been reversed, 
 Mr. Justice Craig, in delivering the opinion of the 
 court, says : 
 
 " The amount of the judgment in this case is large, but we 
 do not regard it as so excessive as to justify an appellate court to 
 interfere. The amount is not so large as to justify the inference 
 that the jury was actuated by passion or prejudice. It is true, 
 in an action of this character the recovery must be confined to 
 the pecuniary loss; but the amount of damages was a question 
 of fact for the jury, and while we would have been better satis- 
 fied with the amount had it been less, still we perceive no ground 
 for interfering with the judgment. It must be affirmed." 
 
 To appreciate the full force of the statement that 
 the court would have been better satisfied with a ver- 
 dict of less than $2,000, reference should be had to the 
 opinion of the court delivered upon "the first appeal, 
 in 76 111. 25. It is there stated that young Becker was 
 killed September 30, 1872, so that the judgment finally 
 sustained by the court at the January term, 1877, must 
 have been rendered nearly, if not quite, four years 
 after the cause of action accrued, and after a prior 
 judgment for $2,500 had been reversed at the costs of 
 the plaintiff. 
 
 Such are a few of the decisions of the court upon 
 the question of excessive damages. Others might be 
 cited, but it is believed the above are reasonably fair 
 illustrations of the methods of reasoning adopted by 
 the court, as a general rule, in discussing the propriety 
 of verdicts against railroad companies. In view of 
 their character it is not to be regretted that the legis- 
 lature, in 1877, deprived the court of the power to 
 investigate the question of the amount of damages in 
 this class of cases. The causes which led the court to 
 
 15 
 
226 EXCESSIVE DAMAGES. 
 
 entertain such views are not easily discernible. The 
 amount of the salary paid the judges may have had 
 some effect upon their opinions. To a judge enjoying 
 a salary of only $1,200 per annum, during a period 
 when the cost of the necessaries of life was very high, 
 for services the proper performance of which demanded 
 the highest order of talent and ability, a verdict of 
 $11,000 for shortening a lawyer's leg only an inch, or 
 of $5,275 for cutting a farmer's toes off, or of $5,000 
 for killing a common laboring man, or of $2,000 for 
 killing a small boy, would seem somewhat excessive. 
 The increasing of the judges' salaries to $5,000 per 
 annum seems to have had no effect upon their de- 
 cisions, for the rules announced prior to 1870 were 
 followed as long as the court had power to decide the 
 question of damages. It is useless, however, to spec- 
 ulate upon causes. The effects are evident. 
 
 Some of the appellate courts have taken the same 
 view as that taken by the supreme court with respect 
 to excessive damages, and there would seem to be no 
 way to remedy the injustice they do, excepting by 
 legislation. The question of excessive damages should 
 be one solely for the circuit judge. If the law were 
 such that the responsibility for the injustice that might 
 be done by excessive verdicts were cast upon him, it is 
 not reasonable to suppose he would permit injustice 
 to be done. His opportunities for determining the 
 amount that should properly be allowed are far supe- 
 rior to those of the judges of an appellate court, who 
 do not see and hear the witnesses nor the party 
 injured, and the injustice he might do by occasionally 
 sanctioning an excessive verdict would be trifling as 
 compared with that which has been done and will be 
 done by the appellate courts in reversing judgments 
 that are not excessive. 
 
THE MANLY CASE. 227 
 
 SECOND CLASS. 
 
 In St. L., A. & T. H. R. E. Go. v. Manly, 58 111. 302, 
 Mr. Justice Scott, in delivering the opinion of the 
 court, says : 
 
 "By the collision the son was instantly killed, and the 
 « appellee was so severely injured that he did not recover his 
 senses for near a month after the accident." 
 
 Further on, he says : 
 
 "By this fearful accident the son of the appellee was 
 instantly killed, and severe and permanent injuries inflicted 
 upon appellee; and as to the extent of the injuries sustained, 
 there is no dispute. They caused much mental and physical 
 suffering, and are of a permanent character, from which he will 
 probably never recover. 
 
 "Upon substantially this evidence a trial was had, which 
 resulted in a verdict for the appellee for $ 2,000. The court 
 overruled a motion for a new trial, and rendered judgment on 
 the verdicb, to reverse which judgment the appellant brings the 
 cause to this court. 
 
 " The principal errors relied on to reverse this judgment are: 
 first, that the court gave improper instructions to the jury, at 
 the request of the appellee; second, that the verdict is against 
 the weight of the evidence. 
 
 " The court, at the request of the appellee, instructed the 
 jury that ' the amount of damages to be recovered for personal 
 injuries rests much in the discretion of the jury, and they have a 
 right not only to compensate the plaintiff for all moneys by him 
 paid out, and for personal injuries, but to punish the defendant 
 according to the circumstances of the case, if the defendant has 
 been guilty of willful misconduct in perpetrating the injury.' 
 
 " It is true that, if the agents and servants of the company 
 willfully and wantonly commit an injury, the party injured may 
 recover in an action for personal injuries beyond the actual 
 damages sustained, in some instances as punitive damages, but 
 certainly by way of compensation for the indignity and outrage 
 committed, and for mental and physical suffering endured. The 
 Chicago & Rock Island Railroad Co. v. McKean, 40 111. 218. 
 
228 EXCESSIVE DAMAGES. 
 
 " Waiving all formal objections that might properly be taken 
 to this instruction, the principal objection lies in the fact that 
 it is not applicable to the facts in this case. As a general rule, 
 instructions must always be founded on the evidence, and al- 
 though the instruction asked may state a correct principle of law, 
 still, if it is based on a hypothetical state of facts not developed 
 in the case, it ought to be refused. An instruction that embodies 
 a correct principle of law, if not applicable to the facts, may 
 tend to mislead the jury, and for that reason it would be error 
 in the court to give it. It does not appear that the injury com- 
 plained of was the result of willfulness or wantonness on the part 
 of the agents and servants of the company, and therefore the 
 attention of the jury was directed by the instruction to the con- 
 sideration of a question not involved in the case. 
 
 " It is insisted that the appellant was not injured by the in- 
 struction, for the reason that the jury did not award vindictive 
 damages. We have no means of knowing whether they did or 
 not. The attention of the jury was directed to that fact as an 
 element of increased damages, and we may presume that the 
 instruction, coming from the court, had its due influence, and 
 made its impression on the minds of the jury against the appel- 
 lant. If so, the instruction was clearly erroneous in this 
 instance." 
 
 In this case the court recognize the rule that an 
 erroneous instruction as to the measure of damages 
 will not justify a reversal, where it is reasonably 
 certain the jury were not influenced thereby. But 
 the difficulty they encountered was in not being able 
 to perceive with the judicial eye that to be knocked 
 senseless so as to remain so for a month, and to be 
 injured severely and permanently, and be caused much 
 mental and physical suffering, would be reasonably 
 worth $2,000. It is much to be regretted that the 
 court expressed no opinion as to the amount of com- 
 pensation that might justly be awarded for such an 
 injury. 
 
THE AUSTIN CASE. 229 
 
 In C, R. L & P. R. R. Co. v. Austin, Admx., 69 111. 427, 
 Mr. Justice Breese, in delivering the opinion of the 
 court, says: 
 
 " This was an action on the case, under the statute, to recov- 
 er damages for the death of plaintiff's husband, on whose estate 
 she is administratrix, the death being caused by the negligence 
 of the servants of the railroad company, appellants here. 
 
 The jury found a verdict for forty-two hundred and fifty 
 dollars in damages, on which the court rendered judgment, hav- 
 ing overruled defendants' motion for a new trial. 
 
 " We have examined the evidence very carefully, as it is 
 spread upon the record, and whilst we are of opinion there 
 is great doubt how the verdict should be, we do not feel author- 
 ized, in view of previous rulings of this court, to reverse the judg- 
 ment on the ground that it is contrary to the evidence. The 
 evidence was very conflicting and unsatisfactory on the point of 
 negligence by the company; yet, if the jury saw the witnesses, 
 noticed their manner, and had a knowledge of surrounding cir- 
 cumstances, they occupied a better position than we do to arrive 
 at the truth. 
 
 " But it is complained, by appellants, improper instructions 
 were given for the plaintiff, and proper ones refused to the de- 
 fendants. 
 
 " In examining the instructions, whieh are very voluminous 
 on both sides, and for the most part given as asked, we have di- 
 rected our attention to the fifth and tenth instructions given for 
 the plaintiff, which we are satisfied should not have been given, 
 and which being given, might have contributed very much to 
 the finding of the jury. 
 
 " The fifth is in these words: 
 
 "'The jury are instructed that, by the statute of Illinois, 
 the plaintiff in this case cannot recover more than five thousand 
 dollars, and if they believe, from the evidence, that the plaintiff 
 is entitled to recover, they will render a verdict for no more than 
 that amount.' * 
 
 " By all the rules of philology, that is but telling the jury 
 they must render a verdict for five thousand dollars. It is true, 
 the jury did not render such a verdict, but was it not a strong, 
 
230 EXCESSIVE DAMAGES. 
 
 persuasive argument addressed to them by the court to render a 
 large verdict? The court say to the jury, in effect, you cannot 
 render a verdict for more than five thousand dollars, but it is 
 expected you will render a verdict for that amount. Such an 
 instruction could not fail to have had an improper influence on 
 the jury, and, in a doubtful case like this, the verdict, rendered 
 either way, not subject to be disturbed, to tell the jury they 
 must find to the extent of the law, was improper, and ought to 
 prejudice the finding. 
 
 "The tenth instruction for plaintiff was as follows: 
 
 " 'If the jury believe, from the evidence, the plain tiff should 
 recover in this case, it is proper for them, in fixing the damages, 
 to take into consideration the support of the widow and children 
 of the deceased; and the instruction and moral training of the 
 children, and their ages, and the pecuniary condition of the 
 widow and children.' 
 
 " Some courts have held that the subject-matter of the last 
 clause of this instruction was proper for the consideration of the 
 jury, and this court, in one case, threw out an intimation, if 
 there was testimony to that point, such an instruction might be 
 proper. In the case of the Illinois Central Railroad Co. v. Wel- 
 don, 52 111. 290, the court so intimated. In that case, an instruc- 
 tion similar to this was held to be wrong, as there was no evidence 
 on which to base it. The same is the case here. There is do 
 proof tending to show that the deceased was fitted by nature or 
 education, or by disposition, to furnish to his children instruc- 
 tion, or moral, physical or intellectual training. The instruction 
 should not have been given. 
 
 " It is also complained by appellants that the court refused 
 to give the fourteenth instruction asked by them. That instruc- 
 tion is as follows: 
 
 " ' The defendants' servants in charge of the engine which 
 struck the deceased had the right to assume that he was rational, 
 and would exercise care and caution to keep himself out of 
 danger until they saw something in his conduct which was incon- 
 sistent with such assumption. If he was walking on a line 
 parallel with the track, and so far removed therefrom as to be 
 free from danger of collision, they had the right to assume that 
 
THE AUSTIN CASE. 231 
 
 lie would remain at such safe distance, until he manifested a 
 purpose to place himself in dangerous proximity to it.' 
 
 " Appellee insists this instruction was properly refused, as it 
 was not based upon the evidence in the cause. 
 
 " It may be the evidence does not show deceased was pro- 
 ceeding upon a line of exact mathematical parallelism with ap- 
 pellants' track, yet there was evidence tending to show his 
 course was on such a line, practically. 
 
 "It surely was not asking too much of the court, in view of 
 all the evidence before it, to give this instruction. It is good 
 law, and it was proper so to say to the jury. * * * 
 
 " For the error of the court in so disposing of these instruc- 
 tions, the judgment is reversed, and the cause remanded, that a 
 new trial may be had, and the cause submitted on proper in- 
 structions." 
 
 Upon the remandment of the cause it was again 
 tried and the result was a verdict and judgment for 
 the defendant. The plaintiff thereupon prosecuted an 
 appeal to the supreme court, where in January, 1878, 
 an opinion, delivered by Mr. Justice Walker, was filed 
 reversing that judgment and remanding the cause for 
 a new trial, on the ground of the admission of improp- 
 er evidence, the refusal to give proper instructions for 
 the plaintiff and the giving of an improper instruction 
 for the defendant. This opinion was concurred in by 
 all the members of the court excepting Mr. Justice 
 Sheldon, who dissented only as to the view expressed 
 as to the instruction given for defendant. Thereupon 
 a petition for a rehearing was filed by the railroad 
 company, which was allowed and subsequently the 
 judgment was affirmed. The case is reported in 91 111. 
 36. The material portion of the opinion of the court, 
 as delivered by Mr. Justice Sheldon, is as follows: 
 
 " Upon the facts of this case we do not see any right of 
 recovery. It appears that the deceased was walking along the 
 track of defendant's road, and placed himself in the position of 
 danger he did from an advancing engine without using any 
 
232 EXCESSIVE DAMAGES. 
 
 precautions whatever to ascertain whether or not there was any 
 engine or train approaching on the track. Seeing the engine 
 go south on the Rock Island main track but so short a time 
 before may have misled him to think it, or any other engine, 
 would not come north on the side track so soon afterward. 
 Watching, as he appears to have been, the engine on the Lake 
 Shore track at the time he went so dangerously near the Rock 
 Island side track, may have, in a degree, diverted his attention 
 from approaching danger on the latter track, but neither or both 
 of these things can be accepted as an excuse for omitting to 
 look and see whether there was, in fact, danger in taking the 
 position so near the Rock Island track. There was no reasona- 
 ble necessity or cause for his going there. The distance between 
 the two tracks, Lake Shore and Rock Island, was some eight or 
 ten feet, — ample room of safety between them. Negligence and 
 inattention in voluntarily and needlessly going into a place of 
 danger are not to be excused. The greater the danger, the 
 higher the care and caution which should be exercised to avoid it. 
 
 " This court has repeatedly held, that to walk upon the track 
 of a railroad, without looking in both directions to discover ap- 
 proaching engines or trains, when the exercise of such precau- 
 tion would discover either the one or the other, is such negli- 
 gence as will preclude a recovery, unless the injury be willfully 
 or wantonly inflicted by the defendant. Chicago & Alton Rail- 
 road Co. v. Gretzner, 46 111. 82; Chicago & Northwestern Rail- 
 road Co. v. Sweeney, 52 id. 325; Chicago, Burlington & Quincy 
 Railroad Co. v. Van Patten, 64 id. 510; Chicago, Burlington & 
 Quincy Railroad Co. v. Damerell, 81 id. 450; Chicago, Rock Isl- 
 and & Pacific Railroad Co. v. Bell, 70 id. 106; Lake Shore & 
 Michigan Southern Railroad Co. v. Hart, 87 id. 529; Illinois 
 Central Railroad Co. v. Hall, 72 id. 222; Illinois Central Rail- 
 road Co. v. Hetherington, 83 id. 510. 
 
 " We are of opinion that there was such negligence here 
 on the part of the deceased, that the plaintiff has no right, in law, 
 to recover; that the case is so clear for the defendant, upon the 
 facts, that had the verdict been for the plaintiff, it would have 
 been the duty of the court to set it aside as unwarranted by the 
 evidence. 
 
THE AUSTIN CASE. 233 
 
 " Under such circumstances, we deem it unnecessary to con- 
 sider the questions raised upon instructions, and as to allowing 
 a certain interrogatory to a witness, as, upon the facts, there can 
 be no just cause of complaint of injury therefrom. 
 
 " The judgment will be affirmed." 
 
 From this statement of the facts it appears that 
 while the first judgment was reversed on account of in- 
 structions given for the plaintiff, which were alleged 
 to be erroneous and detrimental to the defendant, and 
 the cause was remanded, in the language of the court, 
 " that a new trial may be had and the cause submitted 
 on proper instructions," yet, although it was not sub- 
 mitted on proper instructions, but upon improper ones, 
 this time detrimental to the plaintiff, nevertheless, the 
 verdict being for the defendant, the judgment was 
 affirmed because " substantial justice " was done. From 
 this and other like cases it appears that while errone- 
 ous instructions almost always justify the reversal of 
 a judgment against a railroad company, the fact that 
 substantial justice has been done generally cures erro- 
 neous instructions resulting in a judgment in its fa- 
 vor. 
 
 It is worth the while, under the peculiar circum- 
 stances of this case, to briefly consider whether the 
 first judgment was properly reversed, or rather, wheth- 
 er the grounds assigned by Mr. Justice Breese, in de- 
 livering the opinion, are such as to commend them- 
 selves to the profession. 
 
 The objection taken to the fifth instruction for the 
 plaintiff is aggravated hypercriticism. The instruc- 
 tion simply told the jury what the statute law of the 
 state was, and cautioned them against exceeding the 
 statutory limit in their verdict. This may have been 
 unnecessary, but it was not illegal. Instead of its be- 
 ing, by all the rules of "philology," but telling the 
 jury to render a verdict for five thousand dollars, it 
 
234 EXCESSIVE DAMAGES. 
 
 could not, by any rule of "philology," excepting that 
 used by railroad lawyers and the courts, be so con- 
 strued. If all the rules of "philology" required such 
 a construction, it is manifest the jury had no knowl- 
 edge of a single rule of "philology," for, notwith- 
 standing the instruction, the verdict was for only 
 $4,250. It is of vast importance to the profession to 
 know what text-book on "philology" the courts use, 
 for it is evidently unsafe to practice law without hav- 
 ing in one's library a first-class work on "philology." 
 The objection taken to the tenth instruction is that, 
 although it states a correct proposition of law, yet there 
 was no evidence on which to base it, in this, that there 
 was no proof tending to show that the deceased was 
 fitted by nature or education, or by disposition, to fur- 
 nish to his children instruction, or moral, physical or 
 intellectual training. If such evidence is necessary, 
 then the presumption of law must be, in the absence 
 of evidence to the contrary, that every man who is 
 killed, and leaves a wife and family of children behind 
 him, is wholly unfitted by nature or education, or by 
 disposition, to furnish his children instruction, or 
 moral, physical or intellectual training, or, in other 
 words, that he is absolutely useless excepting for the 
 amount of wages he can earn, and even that cannot 
 be inferred by the jury from their common observa- 
 tion and experience, but must be proven, according to 
 the opinion of the same learned judge in the Weldon 
 Case, supra. It must be admitted such a doctrine may 
 reasonably be expected from courts which presume, in 
 the absence of evidence to the contrary, that every 
 man injured by the negligence of another is himself 
 careless and imprudent ; but it ill accords with com- 
 mon experience. It would seem a strange rule of law 
 that would compel a widow to prove her husband was 
 not a drunkard, that he did not beat his wife and chil- 
 
THE AUSTIN CASE. 235 
 
 dren;- in a word, that he was not a mere brute, before a 
 jury of intelligent men may infer that the head of the 
 family was capable of giving some instruction and 
 moral training to his children. 
 
 It ought to be presumed, in the absence of evidence 
 tending to prove the contrary, that every man who is 
 the head of a family is able to give his children some 
 instruction and moral training, slight though it may 
 be, and the value of such instruction and moral train- 
 ing should be determined by the jury from the evi- 
 dence as to the condition in life and habits of the 
 deceased, aided by their common observation and ex- 
 perience. The law has, in express terms, placed the 
 valuing of such an injury exclusively in the discretion 
 of the jury, and it is for the jury to say, from the evi- 
 dence and from their experience, the pecuniary value 
 to children of such instruction and moral training as 
 a man in the condition in life of the deceased could 
 reasonably be expected to give them. 
 
 But suppose these instructions were not strictly 
 accurate, which is by no means conceded, how can it 
 be said that the damages awarded could have been less 
 under instructions that would have been satisfactory 
 to the supreme court ? Taking into account that two 
 years elapsed from the time of the death of Austin, 
 which occurred on April 6, 1871, to the rendition of 
 judgment, and the expense necessarily attendant upon 
 getting that judgment, who can say that $4,250 is an 
 excessive amount, or any less than the verdict should 
 have been? It is quite safe to say that, had the 
 supreme court affirmed the judgment, the amount 
 that would have been realized by the widow and chil- 
 dren three years after the death, after deducting the 
 necessary expenses, would in no event have exceeded 
 $3,500. To say that such an amount of compensation 
 to the widow and children for the killing of the head 
 
236 EXCESSIVE DAMAGES. 
 
 of the family could be regarded as too large, is to shock 
 the sense of justice of all reasonable men. And as we 
 have above seen, in those jurisdictions where the 
 amount to be recovered in cases of injuries resulting 
 in death is unlimited by statute, a verdict for $5,000 is 
 not, as a general rule, regarded as excessive in any 
 such case. Error in the instructions, therefore, was no 
 excuse for the reversal of the judgment. 
 
 The fourteenth instruction, refused by the court 
 below, was bad because it was an argument upon cer- 
 tain supposed facts, and because it was an interference 
 with the functions of the jury, and attempted to decide 
 as a matter of law that which could only be determined 
 as a matter of fact. What the defendant's servants 
 in charge of the engine had a right to assume, or had 
 no right to assume, was clearly a question of fact for 
 the jury to determine from all the circumstances of 
 the case, and not a question of law for, the court to 
 decide. This is evidently but another one of those 
 cases that have "occasionally misled counsel, and 
 induced the belief that the court has declared the 
 result of purely controverted questions of fact as con- 
 clusions of law." (See Conlan Case, in the preceding 
 chapter.) 
 
 The ruling of the court upon this instruction 
 should be compared with that in W., St. L. & P. R. R. 
 Co. v. Wallace, 110 111. 117, where Mr. Justice Walker, 
 in delivering the opinion of the court, says : 
 
 " Objections are urged against the appellee's seventh instruc- 
 tion. It is this : 
 
 '"The jury are instructed that if they believe, from the 
 evidence, that a bell was not rung or a steam whistle sounded, 
 at a distance of eighty rods from the crossing of said defend- 
 ant's railroad across said north-and-south highway, and ■ kept 
 ringing or whistling until the crossing was reached, and the 
 plaintiff was lulled into security by reason of such neglect on 
 
THE AUSTIN CASE. 237 
 
 the part of the defendant, then the plaintiff would have the 
 right to recover for any injury caused therehy, even though he 
 was guilty of slight negligence.' 
 
 " Appellee cites in support of this instruction the case of 
 Chicago & Alton R. R. Co. v. Elmore, 67 111. 178, and it seems 
 to support the rule contained in the instruction. But the rule 
 has been disregarded in subsequent cases. The cases of Chicago, 
 Burlington & Quincy R. R. Co. v. Harwood, 80 111. 88, and Chi- 
 cago, Burlington & Quincy R. R. Co. v. Johnson, 103 id. 512, 
 clearly modify the rule announced by that case. They hold, that 
 although the railroad company may omit the duty imposed by 
 the statute of ringing a bell or sounding a whistle, still the 
 plaintiff must use care and caution, — that the negligence of the 
 company does not absolve him from all care. Such a neglect of 
 duty on the part of the company will no doubt exonerate the 
 plaintiff from as high a degree of care as would have been 
 required had it performed the duty. Plaintiff, under such cir- 
 cumstances, is required to exercise care, and such care as might 
 be expected from prudent men generally, under like circum- 
 stances. So far, therefore, as the Elmore Case conflicts with the 
 views here expressed, it is overruled." 
 
 This opinion clearly demonstrates that* a lawyer 
 should not permit himself to be lulled into security 
 by a decision of the supreme court, as well as that the 
 rules of law applied to individuals and railroad com- 
 panies are essentially different. The instruction in the 
 Austin Case was intended and calculated to inform the 
 jury that the servants of the railroad company might 
 assume that Austin would exercise ordinary care and 
 caution, and that therefore they might permit them- 
 selves to be lulled, as it were, into the exercise of a less 
 degree of care, and it was held proper. And in the 
 Wallace Case the instruction informed the jury that if 
 the plaintiff assumed the servants of defendant would 
 exercise ordinary care by ringing the bell as the stat- 
 ute required, and was thereby lulled into security, he 
 might recover, and it was held improper, though in 
 
238 EXCESSIVE DAMAGES. 
 
 accordance with the prior decision of the court in the 
 Elmore Case. Justice to the court, however, requires 
 it to be said that in the Siltman Case, 67 111. 72, decided 
 at the same time and published in the same volume, 
 the same identical instruction approved in the Elmore 
 Case was declared to be an evasion of the statute, be- 
 cause it omitted to submit to the jury the question 
 whether the plaintiff sustained the damages he sought 
 to recover, by reason of the neglect of the defendant's 
 servants to ring the bell or sound the whistle, a defect, 
 however, which was obviated in the instruction in the 
 Wallace Case, and thus the instruction was made to 
 conform to the rulings in both cases. 
 
 But it is unnecessary to discuss this Austin Case fur- 
 ther. It is a good illustration of the fate of suits 
 against railroad companies in our courts. Upon the 
 first appeal the court declared they were not author- 
 ized to say the verdict was contrary to the evidence, 
 but reversed the judgment for supposed errors in in- 
 structions which were not errors at all, or, if they were, 
 in no wise affected the result. The cause was remand- 
 ed to be submitted to the jury on proper instructions. 
 It was submitted upon improper instructions, but the 
 verdict being for the defendant, the court, although at 
 first unanimously of the opinion the second judgment 
 ought to be reversed on that ground, granted a rehear- 
 ing and -unanimously affirmed the judgment, because 
 they considered the verdict right, although the in- 
 structions were manifestly and admittedly improper 
 and prejudicial to the plaintiff. 
 
 In the Moranda Case, 93 111. 302, which has hereto- 
 fore been discussed at considerable length, Mr. Justice 
 Dickey, in delivering the opinion of the court, says: 
 
 " On the trial the plaintiff, who is the widow of deceased, 
 was permitted to prove that after the time of the death of Mo- 
 randa she and her children had no other means of support, save 
 
THE MOJSANDA CASE. 239 
 
 that arising from his daily earnings. The utmost that can law- 
 fully be recovered, in actions of this kind, is compensation for 
 pecuniary loss suffered by the widow and next of kin. It was 
 entirely proper to show the amount of his usual earnings, and 
 that plaintiff was his wife in life, and that they had minor 
 children whom he was by law bound to support, and who usual- 
 ly shared his income; but it was wholly immaterial whether 
 such next of kin had or had not other pecuniary resources after 
 his death. Such evidence was held incompetent in O'Brennan's 
 Case (65 111. 160), and in Powers' Case (74 111. 343). 
 
 " Where the next of kin consist of collaterals, or persons 
 whom the deceased in life was not bound by law to support, un- 
 less in a state of dependence, it may be proper to show that in 
 his life they were supported by him. The question is, in such 
 case, what pecuniary loss has been suffered by the next of kin. 
 Their poverty after the death can shed no light on this question. 
 If immediately after this disaster the plaintiff and her children 
 had, by inheritance from other sources, become at once wealthy, 
 it would not have abated one cent from the amount of their 
 lawful demand in this case (if entitled to recover at all) — nor 
 can their poverty be permitted to add thereto. 
 
 " For this error the judgment in this case must be reversed, 
 and the cause remanded for a new trial." 
 
 . In view of the subsequent history of this case, which 
 is detailed in the first chapter of this work, it is impor- 
 tant to know what had been the prior rulings of the 
 court upon this question. 
 
 In City of Chicago v. Powers, Admx., 42 111. 173, 
 which was an action brought to recover damages for 
 negligence resulting in the death of the plaintiff's 
 intestate, who was the daughter of the plaintiff, Mr. 
 Chief -Justice Walker, in delivering the opinion of the 
 court, says: 
 
 " It is also insisted that the court below erred in admitting 
 evidence of the pecuniary circumstances of appellee. It tended 
 to show the extent of the loss which appellee had sustained. She 
 may have been dependent upon her daughter for her support, 
 
240 EXCESSIVE DAMAGES. 
 
 either altogether or only in part. If poor and dependent, she 
 had suffered a greater pecuniary loss than if rich and independ- 
 ent. But, from the amount of the verdict, we do not see that 
 this evidence could have produced much effect on their finding. 
 It was but one-fifth of the sum they could have found under the 
 statute. Chicago & Rock Island Railroad v. Morris, 26 111. 400." 
 
 Every argument advanced in the above opinion is 
 applicable with equal force to the Moranda Case. The 
 pecuniary circumstances of the plaintiff tended to 
 show the extent of the loss which she had sustained, 
 that being "poor and dependent, she had suffered a 
 greater loss than if rich and independent," and the 
 amount of the verdict, $4,000, was such as to make it 
 apparent the evidence could not have produced much 
 effect. 
 
 As we have before seen, the court in the Shannon 
 Case, 43 111. 338, said that if the deceased was poor, 
 the loss may consist in the fact that his personal exer- 
 tions can no longer support those dependent upon him. 
 
 In I. C. R. R. Co. v. Weldon, 52 111. 294, Mr. Chief- 
 Justice Breese, in delivering the opinion of the court, 
 says: 
 
 "Exception is taken to the tenth instruction given for 
 appellee. It is as follows : 
 
 "'The jury are instructed that, in estimating the pecu- 
 niary injury, if they believe, from the evidence, that the widow 
 and minor children of said Christopher Weldon, deceased, 
 have sustained any injury for which the defendant is liable, 
 they have a right to take into consideration the support of the 
 said widow and minor children of the deceased, and the instruc- 
 tion and physical, moral and intellectual training, of the minor 
 children of the deceased, and also the ages of the said minor 
 children, and the pecuniary condition of the said minor children 
 and widow of the deceased, in determining the amount of dam- 
 ages in this case, if they believe, from the evidence, that said 
 Weldon left a widow and minor children.' 
 
THE MORANDA CASE. 241 
 
 " To the principle contained in this instruction we perceive 
 no objection. The matter of it has been elaborately discussed 
 in the courts of several of the states, but in none, perhaps, with 
 more ability than in the court of appeals of the State of New 
 York, in the case of Tilly, Admr., v. The Hudson River Railroad 
 Co., 29 N. Y. 252. That case was more than once before the 
 court of appeals, and it was held that the nurture and instruc- 
 tion, moral, physical and intellectual training, by the deceased, 
 of her children, were proper elements to enter into the consider- 
 ation of pecuniary loss suffered by the children. In that case 
 there was evidence on which to base that instruction ; in this 
 case there is no such evidence, and therefore it shquld not have 
 been given. In the absence of such evidence, it was a misdirec- 
 tion of the court. There was no proof tending to show that 
 the deceased was fitted by nature or education, or by disposition, 
 to furnish to his children instruction, or moral, physical or in- 
 tellectual training. On another trial this may be shown." 
 
 But in I. C. R. R. Co. v. Baches, 55 111. 388, Mr. Jus- 
 tice Breese, in delivering the opinion of the court, says: 
 
 "Appellants asked, and the court refused to give, this 
 instruction : 
 
 " ' The pecuniary circumstances of the plaintiff and her 
 infant daughter, at the time of and since the death of said Jacob 
 Baches, cannot increase or diminish the amount of damages 
 which the plaintiff is entitled to recover in this suit, in case the 
 jury find the issue for her; and if the jury so find, they are in- 
 structed, in the assessment of damages, to disregard all the 
 testimony as to the pecuniary circumstances of said plaintiff 
 and her infant daughter, at the time of and since the death of 
 said Jacob Baches.' 
 
 " This instruction should have been given. The object of 
 the act under which this action is brought, is to give compensa- 
 tion for the pecuniary loss sustained by the widow and next of 
 kin. The law expressly declares that the ' jury may give such 
 damages as they shall deem a fair and just compensation, with 
 reference to the pecuniary injuries resulting from such death, 
 to the wife and next of kin of such deceased person, not exceed;- 
 ing the sum of $5,000.' The language of this enactment limits 
 
242 EXCESSIVE DAMAGES. 
 
 the damages to the pecuniary loss. All other injuries and losses 
 are excluded by the language employed. The action is of stat- 
 utory creation, and it must be governed and controlled by the 
 statute. This is the construction given to this law, and it can- 
 not fairly receive any other. The feelings of the widow and next 
 of kin, their wealth or poverty, or any other fact than the pecu- 
 niary injury, cannot be considered in assessing the damages." 
 
 This opinion contains no reference whatever to the 
 Powers Case, or to the Weldon Case, supra. 
 
 In the Austin Case, supra, the Weldon Case was 
 referred to- with approval, and an instruction author- 
 izing the jury to take into consideration the pecuniary 
 circumstances of the widow and children was only criti- 
 cised because it also authorized the jury to take into 
 consideration the instruction and moral training of the 
 children, there being no evidence, as the court viewed 
 the case, that the deceased was capable of giving his 
 children any instruction or moral training. Had there 
 been such evidence the court would undoubtedly have 
 approved the instruction in each of those cases. In 
 the Austin Case no reference whatever is made to 
 the Baches Case. 
 
 The question again arose in Quincy Coal Co. v. Hood, 
 77 111. 71, which was an action brought by a father, as 
 administrator, for the negligent killing of his son, a 
 lad fourteen years of age. In delivering the" opinion 
 of the court in that case, Mr. Justice McAllister says: 
 
 "When all the provisions of the act are regarded, it is 
 apparent that, by its force alone, a legal pecuniary interest is 
 created in favor of certain members of a family in the life of 
 another upon whom the former may be dependent for support, 
 or to whose services one of the former may be entitled; and 
 that interest is invested with all the essential attributes of prop- 
 erty, subject to the laws for the distribution of personal estate. 
 In this last particular, alone, consists a similarity between this 
 action and an ordinary action by an administrator. While the 
 
THE MORANDA CASE. 243 
 
 action itself is purely statutory, there is nothing in the act giv- 
 ing it which expressly or impliedly affects any of the established 
 rules of pleading and evidence. * * * 
 
 " The father being named in this case, the person killed 
 being his son and a minor, the prima facie damages to the father 
 would be the loss of services to which he was entitled. But 
 suppose the defendant came prepared to show that the father 
 had legally emancipated the deceased, and thus divested himself 
 of the right to his services, would it not be competent to give 
 such matter in evidence, upon the question of damages ? But 
 even that might not disentitle the father from all damages be- 
 yond nominal, there being no widow or other next of kin, if he 
 was nevertheless dependent upon deceased for support. 
 
 " In Chicago & Alton Railroad Co. v. Shannon, 43 111. 346, 
 this court said: ' If, then, the next of kin are collateral kindred 
 of the deceased, and have not been receiving from him pecu- 
 niary assistance, and are not in a situation to require it, it is 
 immaterial how near the degree of relationship may be, only 
 nominal damages can be given, because there has been no pecu- 
 niary injury. If, on the other hand, the next of kin have been 
 dependent on the deceased for support, in whole or in part, it is 
 immaterial how remote the relationship may be, there has been 
 pecuniary loss for which compensation, under the statute, 
 must be given. So, also, if the deceased was a minor, and leaves 
 a father entitled to his services.' 
 
 " In the case of collateral kindred here supposed, it would 
 be admissible for defendent to controvert the fact of dependency 
 upon deceased for support; and in the case of the father, to show 
 he was not entitled to the services of his minor child during any 
 of the time of his minority. This must be so, because the 
 measure of damages is what the jury, under all the circumstances, 
 ought to deem to be a fair and just compensation, with reference 
 to the pecuniary injuries resulting from such death, to the wife 
 and next of kin of such deceased person. 
 
 " Hence, it will be perceived, both the basis and amount of 
 damages depend upon circumstances of relationship, dependency 
 for support, which may be various in character and degree." 
 
 The case above cited unquestionably holds that a 
 father, brother or sister may, in such an action, show 
 
244 EXCESSIVE DAMAGES. 
 
 their dependency upon the deceased for support, and 
 manifestly to do this would involve an inquiry into 
 the pecuniary circumstances of such father, brother or 
 sister, and evidence upon that question would be ad- 
 missible whether offered by the plaintiff or by the 
 defendant. The father, on his part, might show that 
 he Was in feeble health, without means of support and 
 unable to work, and that his son was in good health, 
 industrious, able and willing to earn money, and con- 
 tributed his earnings to the father's support. The 
 defendant, on the other hand, might show that the 
 father was in good health, wealthy, and that he re- 
 ceived no aid from the son, but that, on the contrary, 
 the son was either unable or unwilling to work, and a 
 charge upon the father. 
 
 If, then, the father must be permitted to show his 
 pecuniary circumstances when the suit is brought for 
 the death of the son, why not permit the son to show 
 his pecuniary circumstances in a suit brought for the 
 death of the father ? The distinction between the two 
 cases, if there be any, is too fine for practical use. 
 
 O'Brennan's Case, 65 111. 160, and Powers' Case, 74 
 111. 343, cited by the court in support of the opinion in 
 the Moranda Case, are not in point. In each of those 
 cases the person injured was himself the plaintiff. In 
 the Powers Case Mr. Chief-Justice Walker, in deliver- 
 ing the opinion of the court, says : 
 
 " It is urged as ground of reversal that the court below erred 
 in admitting evidence that the plaintiff had a family and was 
 unable to support them by his labor since his injury. In the 
 case of the City of Chicago v. O'Brennan, 65 111. 160, it was 
 held error to admit such evidence; that the evidence must be 
 confined to the plaintiff, his injuries, capacity for business, and 
 the probabilities of his recovery from the injuries received. Such 
 evidence is well calculated to unduly enhauce the damages, and 
 to influence the jury to give damages beyond what is a compen-' 
 
THE MORANDA CASE. 245 
 
 sation for the injury received. Appellants can in no case be 
 required to support the family of one of their employes who 
 may be injured even by the negligence of the servants of the 
 company. Such a rule would be carrying the liability of such 
 bodies beyond the liability of other persons, and would not 
 accord with the analogies or principles of the law. And to per- 
 mit such evidence would be virtually to impose that duty upon 
 the defendant. It is impossible for us to know what portion of 
 the verdict in this case was allowed because appellee had a 
 family. The evidence was before the jury for the purpose of 
 enhancing the damages, and we have no doubt it produced that 
 result. This was manifest error. " 
 
 In a case where the party injured is the plaintiff, it 
 is wholly immaterial whether he has a family or not, 
 the sole question heing the amount of injury he him- 
 self has sustained, while in an action brought under the 
 statute for an injury resulting in death, the question 
 whether the deceased has a wife and children, or other 
 relatives dependent upon him for support, is one of the 
 very issues made by the pleadings, and when proof is 
 introduced bearing upon that issue, the jury cannot 
 properly determine what they ought to deem " a fair 
 and just compensation, with reference to the pecu- 
 niary injuries resulting from such death," unless 
 they are fully informed as to all the circumstances of 
 the case. If the reasoning of the court be correct, that 
 evidence as to the pecuniary circumstances of the 
 widow and children is inadmissible, it follows that the 
 ascertaining of the damages is reduced to the simple 
 process of ascertaining the probable future earnings of 
 the deceased, the amount that might be devoted to the 
 use of his family, and the present value in gross 
 of that amount. But even that could not be ascer- 
 tained without evidence as to the necessities of the 
 family and the manner and extent to which the de- 
 ceased had, prior to his death, provided for those 
 necessities. 
 
246 EXCESSIVE DAMAGES. 
 
 It seems to be conceded by the court in the Wei don 
 and Austin Cases, supra, that the jury have a right to 
 take into consideration, in assessing the damages, 
 the instruction, and physical, moral and intellect- 
 ual training of the children. From this it follows 
 that they must ascertain the instruction and train- 
 ing which the children may have lost by the death 
 of the parent. But this would depend upon various 
 circumstances and upon none more than upon the 
 pecuniary condition in which they were left at his 
 death. If the father and they themselves were poor, a 
 portion of his earnings in his lifetime might be de- 
 voted to sending them to school, but in case of his 
 death, leaving nothing for their support, the mother 
 might not be able to support them, much less send them 
 to school, at least not until she could avail herself of 
 the judgment that might be recovered, which accord- 
 ing to the history of such cases would not be until 
 after the children, unless they were very young, had 
 grown too Old to go to school. On the other hand, if 
 they were well supplied with means they would suffer 
 no injury at all in that respect. 
 
 The question is not one that is to be regarded as 
 free from difficulty, but inasmuch as the court had 
 repeatedly decided that the father, or mother, or the 
 collateral relatives, of the deceased could prove their 
 pecuniary circumstances, and in two cases, had ex- 
 pressed approval of instructions authorizing the jury 
 to take in consideration the pecuniary circumstances 
 of the widow and children, the reversal of the judg- 
 ment in the Moranda Case on the ground stated seems 
 a great injustice. And the thought cannot be repressed 
 that half the labor, learning and ingenuity displayed 
 in formulating the doctrine of fellow-servants in the 
 latter portion of the opinion, if devoted to the ques- 
 tion above discussed, would have furnished the public 
 
THE MOEANDA CASE. 247 
 
 and the profession with an explanation of the differ- 
 ence between that case and the ones hereinbefore 
 mentioned, or resulted in the affirmance of the judg- 
 ment. The doctrine of fellow-servants established by 
 the court is, no doubt, if it can be understood, unfavor- 
 able to railroad companies and favorable to individuals 
 whom they employ, but the opinion when taken as 
 a whole, bears a marked resemblance to a great many 
 other opinions of the court, which, after stern and elo- 
 quent reminders to railroad companies of the duties 
 which they owe to the public, yet wind up with the 
 fatal words " reversed and remanded. " 
 
 Some method ought to be devised to prevent the 
 reversal of judgments upon grounds so unimportant as 
 that given by the court in the Moranda Case. The 
 mere fact that Moranda was the foreman of a party of 
 track repairers was of itself alone, when considered 
 with reference to the family dependent upon him for 
 support, evidence sufficient to satisfy any jury that he 
 and his family were poor, at least in the absence of 
 anything showing the contrary, and there could scarce- 
 ly have been even a possibility, much less a proba- 
 bility, that the evidence that his widow and children 
 had no other means of support save that arising from 
 his daily earnings, caused the rendition of a larger 
 verdict than would have been given without such 
 evidence. 
 
 There are two amendments that might properly be 
 made to prevent such decisions in the future. One is 
 to require the reviewing court before reversing a judg- 
 ment on such a ground to find how much the damages 
 were increased by the error and give the appellee the 
 privilege of entering a remittitur of the excess. The 
 other is to provide that, when a judgment is reversed 
 solely on the ground that the damages are excessive, 
 or that erroneous evidence has been admitted affect- 
 
248 EXCESSIVE DAMAGES. 
 
 ing the damages, the only question to be submitted 
 upon the retrial of the cause shall be the amount of 
 damages to be awarded. When the liability of the 
 defendant has been properly determined by a jury and 
 the only error is in the award of too much damages, 
 no reason is perceived why the result of an appeal to 
 the supreme court should be anything more than to 
 correct that one error without annulling the remainder 
 of the finding. Such a method of procedure might be 
 regarded as objectionable on the ground of novelty, 
 but it would certainly be in accordance with the 
 maxim interest reipublicos ut sit finis litium. 
 
CHAPTER VI. 
 
 TRIAL BY JURY. 
 
 The constitution of 1818 declared " that the right 
 of trial by jury shall remain inviolate." That of 1848 
 declared "that the right of trial by jury shall remain 
 inviolate, and shall extend to all cases at law without 
 regard to the amount in controversy. " That of 1870 
 declares that "the right of trial by jury, as heretofore 
 enjoyed, shall remain inviolate; but the trial of civil 
 cases before justices of the peace by a jury of less than 
 twelve men may be authorized by law." In further- 
 ance of these provisions of the constitution, the legis- 
 lature enacted in 1845 that "the circuit courts in 
 charging the jury shall only instruct as to the law of 
 the case," and that "no more than two new trials 
 shall be granted to the same party in the same cause," 
 and substantially the same enactments were incorpo- 
 rated into the Revised Statutes of 1874, the latter pro- 
 vision being there changed so as to read, " no more than 
 two new trials upon the same grounds shall be granted 
 to the same party in the same cause." These provis- 
 ions seem plain and unambiguous, and, when reasona- 
 bly construed, they mean that in all cases at law ju- 
 rors shall be left free to form and declare their own 
 opinion as to the facts uninfluenced by any opinions 
 of the court, other than as to the law, and, when they 
 have three times determined a controverted question 
 of fact in the same way, the propriety of their finding 
 
 249 
 
250 TRIAL BY JURY. 
 
 shall not be questioned by any other tribunal. The 
 language employed will admit of no other reasonable 
 construction. 
 
 It is proposed now to briefly show the views enter- 
 tained by the supreme court of the character, intelli- 
 gence and fairness of jurors, the effect of those views 
 upon the court, and the measures resorted to by the 
 court tending to limit the right of trial by jury. 
 
 In C. & R. I. E. R, Co. v. McKean, 40 111. 221, Mr. 
 Justice Breese, in delivering his own opinion, says : 
 
 " By the common law, and the practice under it which pre- 
 vailed for ages, the refusal to grant a new trial could not be as- 
 signed as error. Such was the law and the practice in this state 
 up to 1837, when the legislature, in its wisdom, declared by an 
 act of July 21 of that year, that exceptions taken to opinions or 
 decisions of the circuit courts overruling motions for new trials 
 should be allowed, and the party excepting might assign for 
 error any opinion so excepted to. Laws of 1837 (2d session), 109. 
 
 " This statute bestows upon this court the power to super- 
 vise every verdict that may be rendered in any of the courts of 
 record of this state. The evidence upon which they are found 
 may be brought in review before this court, for it will not in- 
 vestigate the question of a new trial moved for, on account of 
 defective evidence unless the whole of the evidence is shown in 
 the record brought here. McKee v. Ingalls, 4 Scam. 30; Clark 
 «;. Willis, 16111. 61. 
 
 " The policy of this legislative enactment has been, and may 
 well be, questioned, as it brings before a tribunal, other than a 
 jury, that which, in the institution of trial by jury, was for their 
 determination alone, that is, the facts of a case. An appellate 
 court was, before the passage of that act, judge of the law only, 
 to decide wherein, in the case brought before it, the rules of law 
 had been misapplied or violated. The old and honored maxim 
 once was, 'the judges respond to the law, the jury to the facts,' 
 but now, by this innovation, the judges of an appellate court 
 have as much power over the facts as the jury had in the first 
 instance, for it is undeniable this court may set aside a verdict, 
 if the facts fail to satisfy it of its propriety. This control, so 
 
THE PARKS CASE. 251 
 
 bestowed upon -this court, is unqualified and unlimited, and 
 therefore we say, the verdict of every jury is subject to the con- 
 trol of this court. * * * 
 
 " This right of revising motions fbr new trials on the evi- 
 dence preserved in the record was conferred on the appellate 
 court for some practical purpose; it was not intended it should 
 be nugatory, but it was supposed that, by its fearless and wise 
 exercise by such a court, benefits would result to the citizen, 
 and some protection be afforded to parties litigating, who had 
 been, or might be, in the power of a tribunal composed of twelve 
 men, wholly irresponsible, the common law writ of attaint hav- 
 ing been abolished, — a tribunal which has not always been 
 found very deeply imbued with a knowledge of the law, when 
 called on to apply its principles to the case before it, — a tribunal 
 not remarkable, as usually selected, for its skill in analysis, or in 
 the examination of facts, or in estimating their force, and made 
 up from persons who are not, as daily experience shows, wholly 
 devoid of prejudice, or entirely uninfluenced by passion, or unaf- 
 fected by popular opinion." 
 
 In C, B. & Q. R. R. Co. v. Parks, 18 111. 469, in com- 
 menting on the verdict of a jury, rendered in a suit 
 brought to recover damages for the expulsion of plain- 
 tiff from a train, Mr. Justice Caton, in delivering the 
 opinion of the court, says : 
 
 " Although, in a case of this kind, this court will interfere 
 with a verdict with great reluctance, yet we will not hesitate to 
 do so, where it is apparent, at first blush, that the jury have 
 misapprehended the law of the case, or misunderstood the facts, 
 or else have been influenced by their passions or their prejudices, 
 rather than the law and the facts. It is not the duty of courts 
 to enforce the arbitrary edicts of juries ; but it is their duty to 
 firmly and fearlessly stand between the party and the jury, 
 whenever it is manifest that the party has been made a victim 
 to their prejudices. In this class of cases great latitude should, 
 no doubt, be allowed to juries in their estimate of the damages, 
 but to this there must be a limit; and should we refuse to inter- 
 fere in this case, it would be equivalent to saying to juries, in 
 all cases of this kind, we will shut our eyes to the facts of the 
 
252 TRIAL BY JURY. 
 
 case, and let you work your will with all parties placed in your 
 hands. Now, do with them as you please; we will not inter- 
 fere." 
 
 In C., B. & Q. R. E. Co. v. Hazzard, 26 111. 388, Mr. 
 Justice Breese, in delivering the opinion of the court, 
 says : 
 
 "But it is argued by the plaintiff, that the jury having 
 found the facts alleged in the declaration, this court cannot, 
 without stultifying itself, and without invading the rights of 
 the jury to decide the facts, reverse their finding, by declaring 
 they do not exist, and that no negligence or carelessness on the 
 part of the defendant was proved. Such a decision, he contends, 
 would render useless trials by jury, and would be an invasion of 
 the constitutional rights of the citizen. But has not the court 
 rights and duties to perform, equally as important as those of 
 a jury ? This court is clothed with power by express statute, 
 to consider a case on the evidence, else why is the evidence 
 certified up to this court ? This court will look into the 
 error which questions the finding of a jury, whether upon the 
 law or the evidence, and the evidence is preserved in the record, 
 by bill of exceptions, for such purpose. This court can, and 
 will, and uniformly does, in a proper record, scan the evidence, 
 and if the finding of the jury is palpably against the evidence, 
 or there be no evidence to sustain the finding, what is this court 
 to do ? Why, clearly, so to pronounce ; to set aside the ver- 
 dict and remand the cause for a new trial, if proper so to do. 
 The citizen had no constitutional right to an unjust verdict, and 
 the trial by jury would be worse than useless if there existed no 
 supervisory power over them, to correct their errors, or, as it 
 may happen, to arrest them in a palpable and glaring attempt to 
 do injustice. This court has a right to look into the whole rec- 
 ord, into the facts as well as into the law, and adjust the scales 
 which a jury may have improperly or unjustly disturbed, always 
 regarding the rules for interference, which long custom and cor- 
 rect principle have sanctioned, and to which we have already 
 adverted, and now obey. * * * 
 
 " In the absence of all necessary proof on this important 
 point, who will not say that the damages are excessive ? Even 
 
THE MIDDLESWORTH CASE. 253 
 
 if we have erred on the question of negligence, no circumstances 
 of aggravation are shown against the defendant, and if negli- 
 gent at all, it was very slight, and not to be visited by vindic- 
 tive damages, as these unquestionably are. Their magnitude, in 
 full view of all the facts of the case, compel the belief that the 
 jury who gave them was influenced by that popular prejudice 
 existing all over the country against railroad corporations. This 
 should not be. Juries should remember that railroad accidents 
 are not always produced by the misconduct of agents and em- 
 ployes, but a large proportion of them, by the carelessness and 
 recklessness of passengers. This our experience tells us. It is a 
 great evil, and it would be a sin to encourage it, by allowing a 
 premium on it, to be extorted from companies. However bad 
 their behavior may sometimes be, it would not be improved by 
 making them pay for faults not their own. * * * Whilst 
 we sball hold railroad companies to a strict performance of all 
 their duties, at the same time we must give them, as we give all 
 other suitors in court, the benefit of all the rules of law and 
 principles of justice. The. judgment is reversed, and the cause 
 remanded." 
 
 The same learned judge was in a somewhat differ- 
 ent frame of mind when he delivered the opinion of 
 the court in I. C. R. R. Co. v. Middlesworth, 46 111. 496, 
 in which he says : 
 
 " We have examined the evidence with great care, as it ap- 
 pears in the bill of exceptions, and are satisfied it supports the 
 charge of great negligence even to recklessness on the part of 
 the employes of the appellants. 
 
 " The weight of the evidence is strong to the point, that it 
 was in the power of the driver of the engine, by the exercise of 
 ordinary care, to have seen such a number of mules in time to 
 have stopped the train before they were reached. With a good 
 headlight properly trimmed, and luminous, on a straight road, 
 it is impossible, if he was not asleep, which these drivers some- 
 times are, when on duty, and on the usual lookout, that he 
 should not have seen them. Even if he had other duties to per- 
 form, — such as attending to the pumps or other parts of the 
 
254 TRIAL BY JURY. 
 
 machine, he has always time to make such observations, and 
 provide against accidents. It is not unfrequent, and it has been 
 charged against these drivers, that they, intentionally, rush 
 their machines into a crowd of animals, with no other thought 
 but to see how many they can kill, like a sportsman shooting 
 into a flock of quails, and boast of their skill afterward ; and 
 that they are sometimes asleep at their posts is an asserted fact. 
 A spirit of recklessness seems to have been engendered among 
 them, resulting not only in loss to the companies employing 
 them, but in life and property to a fearful extent. We are not 
 to suggest a corrective, but it would seem, by the united action 
 of these most powerful and necessary corporations, some system 
 might be devised by which none but the most careful men 
 should receive employment from them in such responsible posi- 
 tions, a prompt discharge immediately following exhibition of 
 negligence. It may be said, these corporations must take men 
 as they find them, and none are perfect ; yet, there is a vast dif- 
 ference in the qualities of men engaged in the same pursuit, and 
 all proper means should be used to provide the best. There is 
 always a choice, and it ought to be incumbent on railroad com- 
 panies to make the best choice, without regard to compensa- 
 rion, of men, to whom the public are obliged to entrust their 
 property and lives and all that is dear to them." 
 
 In I. C. R. R. Co. v. Welch, 52 111. 188, Mr. Justice 
 Lawrence, in delivering the opinion of the court, says: 
 
 " It has become a matter of public notoriety, and is evi- 
 denced by many of the records brought to this court, that juries 
 may generally assess an amount of damages against railway 
 corporations which, in similar cases between individuals, would 
 be considered unjust in the extreme. It is lamentable that the 
 popular prejudice against these corporations should be so power- 
 ful as to taint the administration of justice, but we cannot close 
 our eyes to the fact. When this becomes apparent, the courts 
 must interfere. However natural this prejudice, or however 
 well deserved, it cannot be permitted to find expression in unjust 
 verdicts. A railway company is entitled to and must receive 
 the same measure of justice that is meted out in a suit between 
 John Doe and Richard Roe. Juries must be taught, if possible, 
 
THE VAN PATTEN CASE. 255 
 
 that when they enter the jury-box they are entering upon a 
 duty so high and solemn that they must shrink from the influ- 
 ence of prejudice or passion as they would shrink from crime." 
 
 In St. L., A. & T. H. R. E. Co. v. Manly, 58 111. 309, 
 Mr. Justice Scott, in delivering the opinion of the 
 court, says : 
 
 " It is the duty of the jury to try the case according to the 
 evidence, and their verdict should be a just conclusion from all 
 the evidence. We know from common observation it is exceed- 
 ingly difficult for a jury, in a certain class of cases, to observe 
 this rule with fidelity. There is a class of cases where the evi- 
 dence touches and awakens the sympathies, and it is exceedingly 
 difficult for the juror to exercise that clear and deliberate judg- 
 ment that ought to characterize all judicial investigations. We 
 conceive this to be one of that class of cases. However much 
 the recital of the injuries and misfortunes sustained by the 
 appellee may touch our sympathy, it affords no just reason for 
 disregarding the well-settled principles of the law." 
 
 In C, B. & Q. R. R. Co. v. Yan Patten, 64 111. 513, the 
 same learned judge, in delivering the opinion of the 
 court, says : 
 
 " It is a familiar rule in this court that, where there is a con- 
 trariety of evidence, and where the case has been fairly presented 
 to the jury on proper instructions, the verdict will Dot be disturbed 
 unless it is manifestly against the weight of the evidence, or 
 where it appears clearly to have been the result of passion and 
 prejudice ; but in that class of cases sounding purely in dam- 
 ages, where the evidence is conflicting and presents a difficult 
 issue even to persons accustomed to investigate legal matters, 
 the jury ought to be most accurately instructed. We know, 
 from common observation, how apt they are, in cases where the 
 recitals of the facts tend to touch their feelings, to seek for a 
 reason that would justify them in finding a verdict in accordance 
 with their sympathies. An improper instruction may often 
 afford the desired pretext, and in all such cases no instruction 
 which is calculated to mislead the jury into giving a verdict not 
 warranted by law should be allowed to go to them." 
 
256 TRIAL BY JURY. 
 
 These opinions are sufficient to show the views 
 entertained by the court as to the influence of passion, 
 prejudice and sympathy upon the verdicts of juries in 
 suits brought by individuals against railroad compa- 
 nies. That any court could entertain and so repeat- 
 edly express such views without incurring the risk, in 
 endeavoring to do equal and exact justice, of them- 
 selves going to the opposite extreme, is inconsistent 
 with the common observation and experience of men. 
 A few of the lamentable results that have followed, 
 as the natural consequences of this alleged passion and 
 prejudice of jurors, have already been shown in the 
 preceding chapters. Another result has been to render 
 the members of the court themselves devoid of all 
 passion, prejudice and sympathy so far as their deci- 
 sions are concerned, however much of such passion, 
 prejudice or sympathy they may possess as individuals. 
 This did not come about suddenly, but slowly and 
 gradually, yet surely, and it is in one respect illus- 
 trated by the following cases. 
 
 In P., Ft. W. & G. R. B, Co. v. Bumstead, 48 111. 224, 
 Mr. Justice Breese, in delivering the opinion of the 
 court, among other things, says : 
 
 "The next point made by appellants is, that the parents 
 of this child were guilty of great negligence in leaving him 
 with his young sister. We cannot perceive, admitting it is a 
 duty of the most imperious obligation resting upon parents to 
 use vigilance in the care of their offspring of tender years, that 
 the parents of this child were wanting in this requirement. A 
 mother cannot be always, at all hours, with her child, nor is 
 there any necessity she should be, nor is it practicable. She 
 must perform .her accustomed avocations, and in one moment a 
 child of four years of age may escape from her notice ; it can- 
 not be otherwise. The parents of this boy, the evidence shows, 
 were in a very humble walk of life, who had, the mother espe- 
 cially, something more important to do than to watch her child, 
 lest he came to harm. She had to contribute her labor to feed 
 
THE BUMSTEAD CASE. 257 
 
 and clothe him, and it is unreasonable to demand she should 
 have no other employment than to guard her child from danger, 
 leaving the child with his sister, a girl of fourteen years of age, 
 and who appears, from her testimony, to he intelligent and affec- 
 tionate, was not negligence. It was unavoidable, and she was" 
 trustworthy and competent to take the charge of the child. What 
 would be the public judgment of a rule of law which should 
 forbid a mother to leave a child four years of age with his. sister 
 of fourteen, while the mother was providing for their suste- 
 nance, or enjoying herself by a short visit to a neighbor ? Such 
 a rule would not receive the sanction of any court, and is not 
 to be found in any adjudged case, or in any legislative enactment, 
 and has no reason in its favor." 
 
 This opinion was concurred in by all the members 
 of the court, which then consisted of but three judges, 
 who, as a general rule, worked harmoniously together 
 and produced reasonably harmonious opinions. In 
 those days the litigant was justified in the belief that 
 the decision of his case was the result of an examina- 
 tion of its merits by all the judges, and not, as has 
 been suspected and alleged to be the practice in more 
 modern times, the result of the deliberations of a single 
 judge, or of a committee of two or three. Even in, 
 regard to the now justly celebrated doctrine of com- 
 parative negligence, there was substantial harmony in 
 the court. The opinion above quoted seems to an- 
 nounce a very salutary and just doctrine, to wit, that 
 a mother cannot be required to be always and at all 
 hours with her child, that she must perform her accus- 
 tomed avocations, and in one moment a child of four 
 years of age may escape from her notice, and it can- 
 not be otherwise. It is even conceded that she might 
 enjoy herself by a short visit to a neighbor, without 
 thereby justifying negligence on the part of a railroad 
 company resulting in the child's injury. But the 
 outcry against the passion and prejudice on the part 
 
 17 
 
258 TRIAL BY JURY. 
 
 of jurors began to have its effect upon the court shortly- 
 after the reorganization by the addition of four new 
 members, and the first result is manifested in the .case 
 now to be quoted. 
 
 In C. & A. R. R. Co. v. Gregory, 58 111. 227, Mr. Chief- 
 Justice Lawrence, in delivering the opinion of the 
 court, says : 
 
 " This was an action brought in the name of a minor, by 
 his next friend, against the Chicago & Alton Railroad Co., for 
 injuries received by plaintiff. The trial resulted in a verdict for 
 plaintiff of $3,833.33. 
 
 " It appears the parents of the plaintiff, a child not quite 
 five years old, lived very near the railway track, in the village of 
 Brighton. The mother had gone out to milk, leaving the child 
 in the care of his sister, eight years old, and, returning in a few 
 minutes, discovered he had strayed to the track. She went 
 hastily toward him, and called to him at the same time, but the 
 child ran down the track. Almost immediately the fast train 
 came along at great speed, not stopping at the depot, and, strik- 
 ing the child, threw him into the air. The child was somewhat 
 peculiar before, but since the injury he has been nearly or quite 
 idiotic. 
 
 " We have felt, and still feel, a good deal of doubt in regard 
 to this case, but have finally decided to affirm the judgment. 
 We cannot impute negligence to a child of such tender years, 
 especially to one of less than ordinary mental capacity. On 
 discovering the approach of the train its impulse would doubt- 
 less be to run away, but it would be as likely to run down the 
 track as away from it. It could not comprehend the object and 
 use of the rails. 
 
 " Is, then, the mother chargeable with negligence ? She 
 seems to have exercised all reasonable care. The same rule should 
 not be applied to persons depending upon their labor for support, 
 and to those whose means enable the mother of the family to 
 give a constant personal attention to the care of children, or to 
 employ a nurse for that purpose. Here the mother had left the 
 house for a few minutes to perform a necessary piece of labor, 
 leaving the boy in charge of his sister, but little older than 
 
THE GREGORY CASE. 259 
 
 himself, but probably the only person the mother could provide 
 to look after him during her brief absence. When she returns 
 her first inquiry is for the boy, and she goes in pursuit of him, 
 but too late. If she had heard the train coming, it might be 
 said she should have left her work to look after the boy, but the 
 weight of the evidence is, the train neither rung a bell nor 
 blew a whistle. 
 
 " While so little negligence can be charged upon the mother, 
 and the child was not old enough to be responsible, what is the 
 position of the defendant ? We waive the question of a failure to 
 ring the bell or sound the whistle, the evidence on that matter 
 being contradictory, and it being very probable that neither bell 
 nor whistle would have prevented the accident. The train was 
 running with great speed, which it did not slacken as it passed 
 through the town. We consider this, of itself, great negligence. 
 We cannot regard the saving of a few minutes of time, in mak- 
 ing the. journey between Chicago and Alton, a matter of such 
 importance as to justify a railway company in permitting its 
 fastest trains to dash with unabated speed through villages, 
 where men, women and children are liable at all times to be on 
 the open and unguarded track. There may be less danger in 
 this practice than there would seem to be at first sight, and 
 accidents may be less common than one would suppose ; but 
 that it must be dangerous is self-evident, and the law requires 
 of these companies the greatest precaution for the safety of 
 human life. In this view, we must sustain the finding of the 
 jury in the present case. 
 
 " All the members of the court concur in the foregoing 
 views, and a majority are of opinion the damages are not so 
 excessive as to require a reversal of the judgment. The boy is 
 probably a hopeless imbecile for life, with no means of support, 
 except the proceeds of this verdict." 
 
 In this case we find the court in great doubt 
 whether it was not such negligence on the part of the 
 mother to leave the boy with his eight-years-old sister, 
 while she herself went to milk the cow, as to excuse 
 the railroad company for running with unabated speed 
 through the village, without sounding bell or whistle, 
 
260 TRIAL BY JURY. 
 
 and injuring him so as to render him a hopeless imbe- 
 cile for life. It is even intimated that if she had heard 
 the train coming, it would have been her duty to stop 
 milking and look after her child. And it is only by a 
 majority vote that it is held that a verdict of $3,833.33 
 against the company, for thus reducing the boy to a 
 hopeless imbecile, is not so excessive as to require a 
 reversal of the judgment. The rule of law so vigor- 
 ously announced by Mr. Justice Breese, in the Bum- 
 stead Case, supra, had apparently almost ceased to be 
 regarded as sound. It ceased entirely to be considered 
 as proper a few years afterward, as will appear from 
 the case that follows. 
 
 In T. W. & W. R'y Co. v. Grable, 88 111. 442, Mr. Jus- 
 tice Scott, in delivering the opinion of the court, says : 
 
 "On the 8th day of June, 1874, Dora Lena Shores was 
 struck by a moving locomotive on defendant's road, and was 
 instantly killed. Its mother, while endeavoring to rescue her 
 child from the imminent peril to which it was exposed, was also 
 struck and killed by the same train. The residence occupied by 
 the parents was situated near the track of defendant's road, 
 with no fence or anything else to prevent the child from going 
 upon the railroad whenever it chose to do so. Immediately 
 before the accident occurred, the father and mother of the child 
 were in the house ; he was suffering from headache, and his wife 
 was engaged in bathing his head. While so engaged, they heard 
 the sound of the whistle upon the locomotive, and on observ- 
 ing that the child was not present, its mother went in search of 
 it. After calling twice for her child, she saw it either upon or 
 coming upon the track in front of the advancing train, and 
 flew with all possible haste to rescue it, but only succeeded in 
 reaching it as it was struck by the locomotive, and was herself 
 killed with her hand upon her child. The train that occasioned 
 this most unfortunate accident was nearly, if not exactly, on its 
 usual time, the same it had been running on for some consid- 
 erable time previous. It must be the parents of the child knew 
 the time the train would usually pass their house. This action 
 
THE GBABLE CASE. 261 
 
 was brought by the administrator of the deceased child to 
 recover damages resulting to the next of kin on account of its 
 death. 
 
 " Numerous questions have been elaborately argued by 
 counsel for defendant, but we do not deem it necessary to 
 remark upon all of them. The intestate, at the time of her 
 death, was only twenty-eight months old, and of course she was 
 too young to exercise any care for her personal safety. But its 
 parents, in whose custody the child was, must be charged with the 
 duty of exercising reasonable care for its safety, and if, for the 
 want of such care, the child was killed, it is apprehended there 
 can be no recovery on behalf of the next of kin. What degree 
 of care the parents in this instance exercised for the personal 
 safety of their child wa,s one of the vital questions involved in 
 the case. Taking the most favorable view possible for plaintiff, 
 the evidence offered made it a debatable point whether the 
 parents had exercised a reasonable care for their child, being of 
 such tender age as to be wholly dependent upon them, and the 
 jury ought to have been most accurately instructed in relation 
 to the doctrine of Ihe comparative negligence of the parties. 
 The fourth instruction given for plaintiff on this branch of the 
 case is so faulty it may have misled the jury. It asserts the 
 proposition that, although the parents of the infant killed may 
 have been guilty of slight negligence in suffering it to go beyond 
 their sight, yet if defendant was guilty of ' a greater degree of 
 negligence,' plaintiff might nevertheless recover. This is not 
 the law, as this eourt has had frequent occasion to- declare. 
 Where there is negligence on the part of the injured party, 
 or, as in this case, on the part of those charged with the 
 care of the injured party, contributing directly to produce the 
 injury, there can be no recovery unless such negligence is slight, 
 and that of defendant is gross in comparison, in regard to that 
 which caused the injury complained of. It is not sufficient that 
 defendant may have been guilty of a greater degree of negli- 
 gence in respect to the producing cause of the injury. 
 
 "This case has been examined with that care its importance 
 demands, and without remarking upon the merits at any con- 
 siderable length, it is nevertheless due to the parties to say it is 
 extremely doubtful whether any recovery could be permitted to 
 
262 TRIAL BY JURY. 
 
 stand, under the facts as presented by this record. The case is a 
 very sad one, and calculated to touch the sympathies. It may 
 be the erroneous instruction given for plaintiff may have 
 afforded the jury a pretext for finding the verdict they did, in 
 accordance with their sympathies, without reference to the 
 merits of the case. If correctly understood, and we are to pre- 
 sume it was, it could not but be hurtful to the defense, and 
 ought not to have been given. The judgment will be reversed, 
 and the cause remanded." 
 
 Had the reversal of the judgment in this case been 
 placed upon the ground that there was no negligence 
 on the part of the railroad company, there could, per- 
 haps, have been no just ground of complaint at the de- 
 cision, at least on the part of those who approve of the 
 views of the court as to what constitutes negligence 
 on the part of a railroad company. But the argument 
 of the opinion assumes it as true that there was such 
 negligence, and the court declare that, taking the most 
 favorable view possible for the plaintiff, it was a de- 
 batable point whether the parents had exercised a rea- 
 sonable care for their child, and therefore intimate 
 that it is doubtful whether a recovery could be permit- 
 ted to stand. Indeed, the circuit court would construe 
 the opinion as practically putting an end to the case. 
 
 While, therefore, the court were at first willing to 
 concede that a mother might even enjoy herself by a 
 short visit to a neighbor, and afterward conceded, 
 with some hesitation, that she might perform the nec- 
 essary duty of milking the cow, without being. thereby 
 guilty of such negligence as to excuse the railroad com- 
 pany for negligently inflicting an injury upon her 
 child, they at last evidently became satisfied that the 
 negligent killing of the child by the railroad company 
 was excusable, if the mother was guilty of leaving it 
 for a few moments for the purpose of relieving the 
 father from the pain of a headache by bathing his head. 
 
THE GRABLE CASE. 263 
 
 As appears from the opinion, the decision of the 
 court was declared to be based upon the ground that 
 one of the instructions for the plaintiff asserted the 
 proposition that although the parents of the infant 
 child killed may have been guilty of slight negligence 
 in suffering it to go beyond their .sight, yet, if, defend- 
 ant was guilty of "a greater degree of negligence," plain- 
 tiff might nevertheless recover, and was therefore er- 
 roneous. As we have already seen in the chapter on 
 comparative negligence, the plaintiff's counsel and the 
 trial court were warranted in using the expression 
 " greater degree of negligence " by a large number of 
 opinions of the supreme court, and hence the reversal 
 of the judgment on the ground stated by the court was, 
 for that reason alone, a great, hardship, it being the re- 
 sult of the carelessness of the supreme court rather 
 than of that of the counsel for the plaintiff and the 
 trial court. But the greatest hardship produced by 
 the opinion of the court arises from the construction 
 that must be placed upon it under the ruling in the 
 Johnson Case, 103 111. 512, heretofore discussed, which, 
 according to the court, whatever may have been the 
 views entertained by the profession, has always been 
 sound law. According to that celebrated case, " slight 
 negligence" is only another name for "ordinary care," 
 and the next higher degree of negligence is " ordinary 
 negligence," or the "want of ordinary care, " so that 
 the instruction in the Grable Case, when properly con- 
 strued, meant that, if the parents of the child exercised 
 simply ordinary care, and the railroad company was 
 guilty of ordinary negligence, or a want of ordinary 
 care, there could be a recovery, whereas the law of 
 this state required the jury to be told that if the par- 
 ents of the child were guilty of slight negligence, i. e. 
 exercised ordinary care, only gross negligence on the 
 part of the defendant would justify a recovery. 
 
264 TRIAL BY JURY. 
 
 Such is the law with respect to the relative degrees 
 of care required of parents of children injured, on the 
 one side, and railroad companies inflicting the inju- 
 ries on the other. The reader will now be introduced 
 to cases declaring the rules of law governing the rela- 
 tive degrees of care required oi children without par- 
 ents or guardian to whom contributory negligence can 
 be attributed, on the one hand, and of railroad compa- 
 nies on- the other. 
 
 In C. & A. R. R. Co. v. Murray, 62 EL 329, the court 
 below gave the following instruction for the plaintiff: 
 
 " 4 The court further instructs the jury for the plaintiff, 
 that if they believe, from the evidence, that the fireman on the 
 locomotive engine, which struck down and ran over Ellen Mur- 
 ray (if they believe from the evidence she was struck down and 
 run over), could, by the exercise of reasonable care and watch- 
 fulness, have seen the plaintiff in time to have stopped said en- 
 gine and prevented injury to her, then the railroad company is 
 liable for the want of care and watchfulness of said fireman, and 
 for any injury which was occasioned by such want of care or 
 watchfulness. " 
 
 In delivering the opinion of the court, Mr. Justice 
 Scott says: 
 
 "This is an action on the case brought by the appellee 
 against the appellant for personal injuries. At the time the appel- 
 lee received the injuries complained of she was about seven and 
 one-half years old. In attempting to cross the several tracks of 
 appellant's road, five or six in number, where the same pass over 
 Chestnut street, in the city of Bloomington, she was struck and 
 run over by an engine, by which one leg was severed from the 
 body and one hand crushed. 
 
 " In regard to the comparative negligence of the respective 
 parties in the transaction which resulted in the injuries to the 
 appellee, there is a vast amount of evidence preserved in the 
 record. The real questions in the case are, through whose fault 
 or negligence did the injury to the appellee occur, or, if the ap- 
 
THE MURRAY CASE. 265 
 
 pellee was guilty of contributory negligence, was the negli- 
 gence on her part slight in comparison with that of the agents 
 of the appellant ? 
 
 " Upon these questions the evidence presents a very sharp 
 and difficult issue, and all the controverted facts in the case 
 relate to the conduct of the appellee and the servants of the 
 appellant at the time of the happening of the casualty. 
 
 " In case of injury resulting from negligence, the doctrine 
 of the comparative negligence of the party injured, and of the 
 party producing the injury, has been so fully recognized, and the 
 distinction so accurately stated in the former decisions of this 
 court, that it is not now deemed necessary to discuss the ques- 
 tion anew. It may be regarded as the settled law of this state, 
 as declared in the case of The Chicago, Burlington & Quincy R. 
 R. Co. v. Payne, 49 111. 499, that when the negligence producing 
 the injury is equal or nearly so, or that of the plaintiff is greater 
 than that of the defendant, in such cases the plaintiff cannot 
 recover. On the other hand, although the plaintiff may be 
 guilty of negligence, yet if it is slight in comparison with that 
 of the defendant, the plaintiff may recover. C. & R. I. R. R. Co. 
 v. Still, 19 111. 499 ; C. & A. R. R. Co. v. Gretzner, 46 111. 74 ; 
 111. Cent. R. R. Co. v. Middleworth, 43 111. 64; 0. & M. R. R. Co. 
 v. Eaves, 42 111. 288 ; St. L., Alton &*T. H. R. R. Co. v. Manly, 
 58111.300. ' 
 
 " The fourth and eighth instructions of the series given on 
 behalf of the appellee, on the trial, wholly ignore the doctrine of 
 comparative negligence as uniformly held by the decisions of 
 this court. 
 
 " By those instructions the jury were told that if the appel- 
 lant by its servants, the engineer and fireman of the engine that 
 caused the injury, were guilty of negligence in the management 
 of the engine, then the appellee could recover without any 
 regard to the fact of negligence on her part. Neither of these 
 instructions, if considered alone, states the law correctly as 
 applicable to the facts of this case, and would, doubtless, tend to 
 mislead the jury. The vital question upon which the jury were to 
 pass, was the comparative negligence of the appellee and the 
 servants of the appellant. Upon an issue of this character, where 
 the evidence is so conflicting, as in the case at bar, the jury ought 
 
266 TEIAL BY JUKY. 
 
 to have been most accurately instructed. The object of instruc- 
 tions from the court is to enlighten the minds of the jury, to 
 enable them to render an intelligent yerdict on the evidence that 
 shall be just between the parties. 
 
 " We can see, in a case like the one at bar, where the recital 
 of the sufferings endured by a plaintiff of such tender years 
 would naturally tend to touch the sympathies of the jury, that 
 instructions so framed as the ones above noticed would be 
 calculated to mislead the jury. The inclination of the mind 
 of the jury would be to the interest of such a plaintiff, and 
 these instructions would .warrant a verdict not authorized on 
 principles of law. It is not a sufficient answer to this view, in 
 a case like the one under consideration, where the evidence is 
 conflicting, and the determination of the question at issue one 
 of difficulty to inexperienced persons, to say that some of the 
 numerous instructions contained in the series given for the 
 appellant and appellee may have stated, with some degree of 
 accuracy, the doctrine of comparative negligence. In case the 
 jury considered these instructions alone, they could have reached 
 the conclusion stated in their verdict, simply on finding that the 
 servants of the appellant were guilty of negligence,without refer- 
 ence to the fact whether the negligence of the appellee contrib- 
 uted to produce the injury, for the reason that they were dis- 
 tinctly told by the instructions of the court that they might 
 do so. In view of the facts of this case, as developed in the 
 evidence, we are of opinion that it was error in the court to give 
 instructions numbered four and eight on behalf of appellee, 
 without qualifying them by telling the jury to consider 
 whether the appellee herself had not been guilty of a high 
 degree of negligence, even for a person of her age. Inas- 
 much as this case is to be submitted to another jury, to be more 
 accurately instructed, we forbear at this time to comment on the 
 evidence, the sufficiency of which, to sustain the verdict, is ques- 
 tioned by the assignment of errors. 
 
 "' So far as the instructions asked by the appellant, and 
 refused by the court, state correct principles of law, they were 
 substantially given in the other instructions, given at its in- 
 stance, and therefore there was no error in the court in refusing 
 to give them the second time. 
 
THE MURRAY CASE. 267 
 
 " For the error of the court in giving improper instructions 
 on behalf of the appellee, the judgment is reversed and the 
 cause remanded." 
 
 An examination of the instructions in this case 
 discloses the fact that the doctrine of compara- 
 tive negligence was set forth in the most approved 
 form in two of those given for the plaintiff, and also 
 in some of those given for the defendant, and thus the 
 question was properly submitted to the jury. The two 
 given for the plaintiff were as follows : 
 
 " 3. The jury are further instructed for the plaintiff, that, 
 while the person injured is bound to use reasonable care, yet she 
 is not held to the highest degree of precaution of which the 
 human mind is capable, and to recover, she need not be wholly 
 free from negligence if the other party has been culpable. 
 Therefore, in this case, even if the jury believe, from the evi- 
 dence, that Ellen Murray was guilty of slight negligence, yet 
 if they believe from the evidence that the defendant was guilty 
 of gross negligence, and that the negligence of Ellen Murray 
 was slight compared with the negligence of the railroad com- 
 pany, then they will find for the plaintiff, and assess her dam- 
 ages at such sum as, under the evidence, they believe her entitled 
 to, not exceeding ten thousand dollars." 
 
 "5. The court further instructs the jury that care and 
 negligence are relative, and that the question of liability does 
 not depend absolutely upon the absence of all negligence on the 
 part of the plaintiff, but upon the relative degree of care, or 
 want of care, as manifested by both parties, that in proportion 
 to the negligence of the defendant should be the degree of care 
 required of the plaintiff ; that is to say, the more gross the neg- 
 ligence manifested bythe defendant, the less will be the degree 
 of care required by the plaintiff to enable her to recover. The 
 plaintiff need not be wholly without fault, but her fault is to be 
 measured by the defendant's negligence. Therefore, in this case, 
 although the jury may believe that Ellen Murray may not have 
 been wholly without fault, yet if they believe, from the evidence, 
 that the defendant has been guilty of gross negligence, and that 
 
268 TRIAL BY JURY. 
 
 the negligence of the plaintiff was slight compared with the negli- 
 gence of the defendant, then they will find for the plaintiff." 
 
 The reversal of the judgment was, therefore, placed 
 not upon the ground that the question was not sub- 
 mitted at all, but upon the ground that it was not 
 submitted in every instruction. As will appear in a 
 subsequent chapter, the court have affirmed numerous 
 judgments of conviction, and sent men to the peniten- 
 tiary for periods of from seven to twenty-five years on 
 the ground that, although single instructions given for 
 the people were incorrect, yet other instructions were 
 correct, and the court "must presume that the jury 
 considered all the instructions given, and based their 
 verdict on all and not on a portion." But this little 
 inconsistency is of small consequence compared with 
 the ruling of the court that the doctrine of compara- 
 tive negligence must be submitted to a jury in an 
 action brought by a child seven and one-half years old, 
 to recover damages for personal injuries, and that in 
 such a case the mere want of ordinary care on the 
 part of the defendant, when, if exercised, it would have 
 avoided the injury, is not of itself sufficient to create 
 a liability ; but if it appears that the child was guilty 
 of slight negligence, i. e., ordinary care, contributing 
 to its injury, only gross negligence or willful injury by 
 the railroad company will justify a verdict for the 
 plaintiff. 
 
 There was in this case, so far as the opinion dis- 
 closes, no question of contributory negligence on the 
 part of the parent or guardian of the child, but the 
 negligence, if there was any, was that of the child 
 itself. The question then arises : Can a child, only 
 seven and one-half years old, be guilty of contributory 
 negligence ? The criminal code of this state has, for 
 more than forty years, provided that " a person shall 
 be considered of sound mind who is neither an idiot 
 
THE MURRAY CASE. 269 
 
 nor lunatic, nor affected with insanity, and who hath 
 arrived at the age of fourteen years, or before that age, 
 if such person know the distinction between good and 
 evil," and that " an infant under the age of ten years 
 shall not be found guilty of any crime or misdemeanor." 
 A little girl seven and one-half years old is, therefore, 
 conclusively presumed to be legally incapable of com- 
 mitting murder, arson, larceny, or any other crime, 
 and this because of her inability to comprehend the 
 distinction between right and wrong. This statute 
 was the result of the experience and wisdom of the 
 people who framed it, which taught them that, in this 
 state and in this climate, such a degree of intellectual 
 development, in a child of less than ten years of age, 
 as to enable it to distinguish between right and wrong, 
 was so extremely rare that the dictates of humanity 
 demanded that no child of such tender years should be 
 punished for any crime, no matter how atrocious, and 
 that, even as to a child over ten years of age and under 
 fourteen, the law should be that no conviction should 
 "be had, unless it were shown affirmatively to the satis- 
 faction of the jury that such child did know the 
 distinction between good and evil. 
 
 What species of reasoning, then, will justify a court 
 in treating a little girl, only seven and one-half years 
 of age, as capable of such contributory negligence as 
 to excuse the want of ordinary care, a reasonable 
 regard for the safety of others, on the part of a rail- 
 road company ? A crime is an act of commission, and in 
 most cases involves the doing of something which our 
 natural instincts of right tell us we should not do. 
 Negligence is usually an act of omission. It is the 
 failure to do something which the particular circum- 
 stances of the case may reasonably require. "What 
 such circumstances may reasonably require is deter- 
 mined by our common observation and experience and 
 
270 TEIAL BY JUEY. 
 
 the use of our reasoning faculties. To decide what 
 the duty is in the particular case must, therefore, of 
 necessity, be immeasurably more difficult than to sim- 
 ply distinguish between good and evil, in which we 
 are aided by our natural instincts. A rule of law, 
 therefore, which holds a little girl, seven and one-half 
 years old, irresponsible for murder or larceny, but 
 responsible for negligence, not only has no reason in 
 its favor, but reflects no credit upon any system of 
 jurisprudence, and especially one existing in the nine- 
 teenth century and in a civilized country. 
 
 Decisions are, indeed, to be found in which the 
 doctrine of contributory negligence is held applicable 
 to children ; but courts usually take pains to declare 
 that the care required of a child is not that which is 
 expected of a man, but only that which a child of such 
 an age would be likely to exercise. Thus, in Kerr v. 
 Forgue, 54 111. 484, Mr. Justice Thornton, in delivering 
 the opinion of the court, with reference to a boy 
 twelve years old, says : 
 
 "A child can only exercise care and prudence equal to his 
 capacity. Ordinary neglect, as to a person of full age and 
 capacity, might be gross neglect as to a child. Hence, the age 
 and discretion of the child were the proper subjects of inquiry 
 by the jury. The child is reckless and thoughtless ; the man 
 prudent and watchful." 
 
 Another case, almost as bad as the Murray Case, 
 was that of R, R. I. & St. L. R. R. Co. v. Delaney, 82 
 111. 198, in which Mr. Justice Scholfield, in delivering 
 the opinion of the court, among other things, says : 
 
 "The plaintiff's intestate, a lad of nine years of age, was 
 
 killed at a street crossing in East St. Louis, by a train of cars. 
 * * * 
 
 "There was evidence tending to show negligence on the 
 part of the defendant, and also on the part of the intestate. As to 
 
THE DELANEY CASE. 271 
 
 the preponderance of this evidence, it is unnecessary that we 
 should, in the view we take of the case, express any opinion. 
 
 " The court, among other things, instructed the jury that 
 ' the defendant, in order to free itself from liability, must dis- 
 charge every duty imposed upon it by law; and if the jury believe, 
 from the evidence, that the defendant did not use all reasonable 
 and lawful means and care to prevent the injury complained of 
 them, then such omission, if it contributed to bring about such 
 injury more than any negligence of deceased, renders the defend- 
 ant liable, and they are bound to find for the plaintiff.' 
 
 " Waiving the obviously objectionable feature in this instruc- 
 tion, that it is not limited to the duties which the defendant is 
 charged in the declaration with having violated, it is inaccurate 
 as a statement of the law of contributory negligence as recog- 
 nized by this court, and was calculated to and may have misled 
 the jury, and materially influenced them in the formation of the 
 verdict which they returned. Other instructions, given at the 
 instance of the plaintiff, likewise contain the same objectionable 
 feature. 
 
 " The rule of this court is, that the relative degrees of negli- 
 gence, in cases of this kind, is matter of comparison, and that 
 the plaintiff may recover although his intestate was guilty of 
 contributory negligence, provided the negligence of the intes- 
 tate was slight, and that of the defendant gross, in comparison 
 with each other ; and, consequently, if the intestate's negli- 
 gence was not slight, and that of the defendant gross, in com- 
 parison with each other, there can be no recovery. Illinois 
 Central Railroad Co. v. Benton, 69 111. 174 ; Chicago & Alton 
 Railroad v. Pondrom, 51 111. 333 ; Chicago, Burlington & Quincy 
 Railroad Co. v. Dunn, 52 111. 452 ; Illinois Central Railroad Co. 
 v. Baches, Admr., 55 111. 379; Illinois Central Railroad Co. 
 v. Maffit, 67 111. 431. 
 
 " Of course the age of the intestate is a proper element 
 to be taken into consideration in the determination of 
 this question ; and, as was said in Chicago & Alton Railroad 
 Co. v. Becker, Admr., 76 111. 32 : 'If the child, from its age 
 and experience, be found to have capacity and discretion 
 to observe and avoid danger, it should be held responsible for 
 the exercise of such measure of capacity and discretion as it 
 
272 TEIAL BY JURY. 
 
 possesses. The question is similar, and to be determined by the 
 jury in the same way, from facts and circumstances in evi- 
 dence, as where the capability of an infant, under the age of 
 fourteen years, to commit crime, is involved in a criminal pros- 
 ecution at common law, against such infant.' 
 
 " For the error indicated in the instruction, the judgment is 
 reversed and the cause remanded." 
 
 Here, then, the court recognize the common law 
 doctrine as to the capability of an infant, under the 
 age of fourteen years, to commit crime, and hold that 
 its capability of being guilty of contributory negli- 
 gence is similar thereto and is to be determined by the 
 jury in the same way, from facts and circumstances in 
 evidence. Why, therefore, could not the court go one ' 
 step farther and declare that, inasmuch as our statute 
 law had, for at least forty years, declared that an in- 
 fant under the age of ten years could not commit a 
 crime or misdemeanor, contributory negligence should 
 not in any case be imputed to an infant under ten 
 years of age, but that, in case of an injury to an infant 
 of such tender years, the want of such ordinary care 
 as would have avoided the injury should make the de- 
 fendant liable ? It may, indeed, be said that the stat- 
 ute does not, in terms, apply to actions for negligence, 
 yet the reason and spirit of the law do apply, and, 
 while the application of it by the courts might be re- 
 garded as a kind of judicial legislation, still all know 
 that at least four-fifths of the legislation of this state 
 is of the species known as judicial, and much of it, 
 moreover, is bad, and no just reason is perceived why 
 some that is good might not, with propriety, occasion- 
 ally be enacted. 
 
 Even were the doctrine of contributory negligence 
 theoretically applicable to the case of a child seven 
 and one-half, or nine years of age, it would be of no 
 practical use, for it is not to be supposed that twelve 
 
THE SNYDER CASE. 273 
 
 intelligent men could be placed in a jury-box who 
 would say that any conduct ou the part of a child so 
 young could be considered as such contributory negli- 
 gence as to excuse a defendant for the infliction of an 
 injury, which such defendant could, by the use of ordi- 
 nary care, have avoided. And it may properly be 
 added, that, if twelve jurymen should so hold, they 
 would be fit subjects for the common law writ of 
 attaint. 
 
 Some courts, notably those of Connecticut, Ohio, 
 Pennsylvania and Vermont,, are humane enough to 
 repudiate wholly the doctrine that contributory negli- 
 gence on the part of the parent or guardian will bar a 
 recovery by the child. Thus in B. & I. R. R. Co. v. 
 Snyder, 18 Ohio State 408, where the injured child was 
 six years of age, Mr. Justice Welch, in delivering the 
 opinion of the court, among other things, says : 
 
 " What the counsel of the plaintiff in error insists upon is : 
 1. That the court erred in leaving it to the jury to say whether 
 Mary or her sister were guilty of negligence contributing to the 
 result, and in refusing to instruct them that the failure of the 
 girls to look along the line of the road was in law such negli- 
 gence ; 2. That the jury were wrong in finding that there was 
 no such negligence in fact. 
 
 " Both these propositions rest upon the assumption that 
 this is a case for the application of the doctrine of what is 
 called ' imputed negligence.' In other words, it is claimed that 
 although the plaintiff, being a mere child, was incapable of neg- 
 ligence, yet the negligence of the parents, as assumed in the 
 charge asked, or of the elder sister, as declared by the court in 
 its charge, is to be imputed to the plaintiff and to stand as a bar 
 to her recovery. If such is not the law of the case, neither of 
 these propositions have any foundation whatever and the whole 
 case is disposed of at once. Because, it cannot be denied that 
 the jury were fairly justified in finding the company guilty of 
 negligence ; it is not claimed that the child was capable of act- 
 ual negligence ; and the charges refused to be given by the 
 
274 TRIAL BY JURY. 
 
 court were based upon and involved this doctrine of imputed 
 negligence, and might well have been refused upon that ground. 
 And although the court put its refusal upon other grounds, and 
 charged that it was a case for imputed or constructive negli- 
 gence, yet, the error, if any, was not an error to the prejudice of 
 the company, but in its favor. If, therefore, it be not the law 
 of such a case that the child is chargeable, by imputation or 
 implication, with the carelessness or fault of the parents or 
 sister, then there was no error, either in the charge of the court 
 or the finding of the jury. Is such the law of the case ? This 
 is an important question — rendered peculiarly so at the present 
 time by the extensive and increasing use of railroads in the 
 country — and we have given it that careful consideration 
 which its importance seems to us to demand. So far as we know, 
 it is a new question in this state. 
 
 "It is well settled that an adult person capable of self- 
 control cannot recover for injuries occasioned by negligence ; 
 where he has himself also been guilty of negligence, which 
 contributed to the result. This rule of law is founded upon 
 reason and considerations of justice and public policy, which it 
 seems to us are wholly inapplicable to the case of an infant 
 plaintiff. These reasons and considerations are : 1. The mu- 
 tuality of the wrong, entitling each party alike, where both are 
 injured, to his action against the other, if it entitles either ; 2. 
 The impolicy of allowing a party to recover for his own wrong; 
 and 3. The policy of making the personal interests of parties 
 dependent upon their men prudence and care. All these are 
 wanting in the case of an infant plaintiff. No action can be 
 maintained against him for the negligence of his parent or 
 custodian ; and it is difficult to perceive what principle of public 
 policy is to be subserved, or how it can be reconciled with justice 
 to the infant, to make his personal rights dependent upon the 
 good or bad conduct of others. It is the old doctrine of the father 
 eating grapes, and the child's teeth being set on edge. The 
 strong objection to it is its palpable injustice to the infant. Can 
 it be true, and is such the law, that if only one party offends 
 against an infant he has his action, but that, if two offend 
 against him, their faults neutralize each other, and he is without 
 remedy ? His right is to have an action against both." 
 
THE GLADMON CASE. 275 
 
 Other courts, however, hold to the doctrine that 
 contributory negligence on the part of the parent or 
 guardian will bar a recovery by the child. But the 
 Supreme Court of Illinois, it is to be hoped, is the only 
 court that has held not only that there may be con- 
 tributory negligence on the part of a child of less than 
 ten years of age sufficient to bar a recovery, but that, 
 in an action brought by such child against a railroad 
 company, the law of contributory negligence must be 
 given to the jury in every instruction, and that should 
 it be omitted from any instruction on the question of 
 negligence, it will be sufficient ground for the reversal- 
 of the judgment. 
 
 With the ruling in the Murray Case the reader 
 should compare that of the Supreme Court of the 
 United States, in Railroad Company v. Grladmon, 15 
 Wall. 401. In that case it appeared that a child seven 
 years old, while attempting to run aCrqss a street rail- 
 way track, was injured by a car, or by the horses 
 ( drawing the same. In charging the jury, the trial 
 judge, among other things, said : 
 
 " I am requested to say to you that, if the defendant in this 
 ease was in the wrong, if the car of the defendant was moving 
 with greater speed than good precaution and judgment would 
 dictate, yet if you find from the testimony that the plaintiff, by 
 his own act and in his own fault, superinduced the injury of 
 which he now complains, that he may not recover. 
 
 " That is the law, gentlemen. But in estimating that, you 
 will go back again to the foundation principle laid down in the 
 government of the law of this case, and estimate the fault, 
 the indiscretion, by the measure of the years of the plain- 
 tiff. You have got to adopt one of two rules here, and I have 
 concluded it to be my duty to adopt the rule I have laid down, 
 either to judge this child's conduct under the measure of his * 
 years and the measure of his discretion, or pronounce that no 
 action lies in behalf of a child ; or demand of the child a meas- 
 ure of judgment that nature has not given to him, which would 
 
276 TRIAL BY JURY. 
 
 be a greater outrage upon good logic than to pronounce he had 
 no remedy .- 
 
 "Now, if you find from the facts that this child inter- 
 posed himself in the way of this car at a time when it could not 
 be arrested, and under circumstances where he could not be 
 seen under watchful, reasonably watchful, strictly watchful care 
 on the part of the driver, where the car could not be brought to 
 a pause early enough to save his body from injury, the defend- 
 ant is not liable. If you find, on the contrary, that this child 
 came upon the theater of observation there at a time when the 
 driver, attending to his duty, may have observed him, and 
 observed him as an infant, with power to arrest his car to save 
 • him, you will hold this corporation responsible for the injury 
 done to him ; and it appears to me that the whole case lies 
 pretty much there too. 
 
 " However, I do not wish to comment on the facts ; that is 
 your province. Take the case and dispose of it." 
 
 The defendant excepted to the portion of the charge 
 above given, and also to certain other portions, as well 
 as to the refusal of the court to give certain instruc- 
 tions asked. The jury found a verdict for the plaintiff* 
 of $9,000, and judgment was entered thereon. Mr. 
 Justice Hunt, in delivering the opinion of the supreme 
 court, after disposing of the refused instructions, says : 
 
 " Exception is also taken to certain portions of the charge. 
 The general scope and tendency of the charge is correct. The 
 rule in regard to the liability of the defendant under the circum- 
 stances submitted to the jury, is correctly given. The language 
 is less simple, perhaps, than might have been desired, and de- 
 tached sentences might be open to criticism, but upon the whole 
 it is right, and the jury could not have failed to understand it 
 correctly. . 
 
 " Some discussion was had upon the argument on the point 
 of the degree of care and attention to be required of those 
 having the charge and custody of an infant of tender years. 
 This presents an interesting question, which, when it is properly 
 before us, will receive the careful attention of the court. In the 
 
THE GLADMOU CASE. 277 
 
 present case it does not appear to have been presented to the 
 court below, and there is nothing in the evidence to justify this 
 court in now considering it. Upon the case, as it now comes 
 before us, the judgment must be affirmed." 
 
 Comparisons may be odious, but they are neverthe- 
 less useful sometimes. Past experience justifies us in 
 saying that, had such a charge as the one above given 
 come before the Supreme Court of Illinois for review, 
 it would have been held bad, first, because it declared 
 that " to demand of the child a measure of judgment 
 that nature has not given to him, would be a greater 
 outrage upon good logic than to pronounce he had no 
 remedy " ; second, because it required " watchful, rea- 
 sonably watchful, strictly watchful care on the part of 
 the driver" ; third, because it authorized a recovery if 
 the driver, by attending to his duty, could have avoided 
 the injury ; fourth, because it did not mention the doc- 
 trine of comparative negligence at all, much less state 
 it in every paragraph ; fifth, because the recital of the 
 suffering endured by a plaintiff of such tender years 
 would naturally, tend to touch the sympathies of the 
 jury, and hence a charge so framed would be calculated 
 to mislead them ; and, sixth, because the damages were 
 so excessive as to furnish conclusive evidence that the 
 jury were actuated by passion and prejudice. In addi- 
 tion to these objections, a first-class Illinois railroad 
 lawyer could discover a dozen or more errors that might 
 have affected the result, and would therefore require a 
 reversal of the judgment. 
 
 Much more might with propriety be- said upon the 
 question whether contributory negligence on the part 
 of a child of less than ten years of age, or on the part 
 of its parents, should be held sufficient to bar a recov- 
 ery for an injury inflicted by reason of the failure of 
 the servants of a railroad company to exercise proper 
 care in the management of its engines and cars. A 
 
278 TRIAL BY JUEY. 
 
 great many people living in cities through which rail- 
 roads pass, and who have children, are not able to 
 always be with them and see that they do not come to 
 harm. It is important that children should be sent to 
 school, and they cannot be carried there under guard, 
 especially when their parents are poor. If, then, rail- 
 road companies are permitted to run their trains over 
 public streets, a sound public policy demands that 
 they should be required to exercise the highest degree 
 of care to avoid injury to others, and especially to 
 those who by reason of their tender years are incapa- 
 ble of exercising proper care for their own safety. It 
 is in the power of every railroad company to abso- 
 lutely prevent all injuries to persons or property at 
 highway crossings. This may be done by the erection 
 of gates, or by providing flagmen. And when the 
 legislature or the courts compel these corporations to 
 pay for injuries inflicted at such places, it is certain 
 these reasonable precautions will be taken. But as long 
 as railroad companies can secure the reversal of sixteen 
 out of seventeen judgments rendered against them for 
 injuries at crossings, there can be no reason to expect 
 them to manifest any regard for the rights of others. 
 
 The doctrine as announced in the Grable, Murray 
 and Delaney cases, harsh as they seem in themselves, 
 become especially so in view of the rulings of the 
 court in suits brought to recover damages for the kill- 
 ing of stock by railway trains. 
 
 In I. C. R. R. Co. v. Middlesworth, 46 111. 497, Mr. 
 Justice Breese, in delivering the opinion of the court, 
 among other things, says : 
 
 " But it is said appellee was also negligent! and his neg- 
 ligence contributed to the injury. This cannot be denied; he 
 was incautious in penning the mules at the place he did, but 
 that gave appellants no right, with their powerful machine, to 
 run over them and destroy them, if proper care on their part 
 
THE MIDDLESWORTH CASE. 279 
 
 would have prevented it. It is carelessness for a man to lie down 
 and go to sleep in a public road, but if he does so, a driver of a 
 team, seeing him in that position, has no right to run .over him, 
 and kill or maim him. * * * It is also complained that the 
 court gave this instruction for the plaintiff: 
 
 " ' If the jury believe, from the evidence, that the engine 
 driver, by the use of ordinary skill and prudence, could have 
 seen the mules, or that he did see the mules, and that he might, 
 without danger, have stopped the train before striking the 
 mules, and did not, that this would be negligence on the part 
 of the railroad company. 1 
 
 "Appellants admit this is the doctrine when applied to rail- 
 road companies as common carriers, but when such a company 
 has its road fenced with a good and sufficient fence, the servants 
 of the company have a right to assume that no unruly stock 
 has broken down the fence and got upon the road, and the 
 owners of such stock have no right to demand that the servants 
 of the company shall keep a good lookout for the purpose of 
 avoiding injury to it, and for this rule cites the Central Military 
 Tract R. E. Co. v. Rockafellow, 17 111. 541, and the Great 
 Western Railroad Co. v. Thompson, ib. 131, and 111. Cent. R. R. 
 Co. v. Reedy,, ib. 580, which seem to sustain him — in fact, do 
 sustain this view — and so does the case of the Chicago & Miss. 
 R. R. Co. v. Patchin, 16 ib. 198. 
 
 " The doctrine is distinctly laid down in those cases, that a 
 railroad company is not liable for the want of ordinary care 
 and diligence in running its train, whereby stock upon the road 
 is killed, but only for wanton, willful or gross negligence, and 
 that the doctrine in regard to carriers of persons has no appli- 
 cation. 
 
 " Much reflection has satisfied us the doctrine of. these cases 
 is liable to severe and just criticism, and is not in harmony 
 with that great maxim of the common law, so long reverenced, 
 and so consonant with the instincts of our nature, and that is, 
 ' So use your own property and exercise your rights as not to 
 inflict injury upon another.' The idea is not tolerable, that an 
 injury may be inflicted which, by ordinary care and diligence, 
 could have been avoided. There would be no safety in daity in- 
 tercourse if such was the law. By its force, a man may ride 
 
280 TRIAL BT JURY. 
 
 his horse over another, who is carelessly exposed in a street, on 
 which they have a common right. By its force, all those pre- 
 cautions and safeguards sanctioned by experience are dispensed 
 with, and a time-honored and sensible and just maxim of the 
 law scouted. The true doctrine is, that in all the business and 
 avocations of life, those pursuing a particular business should 
 so exercise their rights as to do no unnecessary injury to an- 
 other in the pursuit of his business, or in the exercise of his 
 rights. All should use ordinary care and diligence to prevent 
 injury. Great Western R. R. Co. of 1859 v. Haworth et. al., 39 
 111. 346. 
 
 " In this view the instruction was correct. 
 
 " It is also complained that the court refused to give, for 
 defendants, this instruction: 
 
 " ' If the jury believe, from the evidence, that the plaintiff, 
 without the permission of the railroad company, entered upon 
 its right of way, and made use of its fence to pen a large herd 
 of mules, anS the mules broke down the railroad company's 
 fence and got upon the track, and were there injured or killed, 
 the railroad company is not liable.' 
 
 "The facts being as stated in this instruction, the duty of 
 defendants to use proper care and diligence was in no way 
 diminished. No matter how the animals got upon the track, if 
 injury to them could have been avoided by the exercise of ordi- 
 nary care and diligence, that degree of care and diligence should 
 have been observed." 
 
 The rule declared in this opinion evidently is, that, 
 although the owner of a mule may he guilty of negli- 
 gence in permitting it to run at large, yet that does 
 not absolve a railroad company from the duty of exer- 
 cising ordinary care to avoid inflicting injury upon it. 
 So the law of this state would seem to be, that if the 
 owner of a mule leave his stable door open and his 
 mule untied, whereby the animal escapes into the 
 street and is killed by a railway train, in the manage- 
 ment of which there has been a mere failure to exer- 
 cise ordinary care, such owner can recover its value, 
 
THE MIDDLESWOB.TH CASE. 281 
 
 but if the father of a child is so sick as to require his 
 wife to bathe his head, and, while she is so engaged, 
 the child escapes into the street and is killed by a pass- 
 ing train, or if a child, without parents or guardian, 
 under the age of ten years and incapable in law of 
 distinguishing between right and wrong, has its leg 
 cut off and its hand crushed or is killed by such train 
 at a public crossing in a populous city, there can be 
 no recovery of damages, unless a jury of twelve men 
 can say upon their oaths that the negligence of the 
 parents in the one case or of the child in the other, is 
 slight and that of the railroad company gross in 
 comparison with each other, which, as we have already 
 seen, means, according to the latest exposition of the 
 doctrine of comparative negligence, unless the negli- 
 gence of the parents in the one case, or of the child in 
 the other, was ordinary care, and the negligence of the 
 railroad company gross in comparison with . each 
 other. 
 
 Such may be the law, and its soundness maybe sus- 
 tained by reasoning entirely satisfactory to certain 
 classes of courts and jurists, but no species of argu- 
 ment will suffice to convince unbiased and intelligent 
 men that a system of administering justice by which 
 such results are produced is deserving of anything but 
 the severest condemnation. To all right-thinking men. 
 the passion and prejudice of jurors, occasionally re- 
 sulting in unjust verdicts, is far less dangerous to the 
 public welfare than the cold and unfeeling reasoning of 
 a court which punishes the negligent injury of a mule 
 and refuses redress for the equally negligent slaughter 
 of an infant. 
 
 With this little digression illustrative of the ab- 
 sence of prejudice, passion and sympathy on the part 
 of the court, let us return to the passion and prejudice. 
 of jurors. 
 
282 TRIAL BY JURY. 
 
 These cases in which the court has discussed the 
 passion and prejudice of jurors are susceptible of criti- 
 cism as being unjust and unwarranted reflections, not 
 only upon jurors, but also upon the judges of trial 
 courts. No one questions the right of an appellate 
 court to reverse a judgment because it considers a 
 verdict contrary to the evidence, but that right should 
 be so exercised as not to cast unnecessary reproach 
 upon the other instruments employed in the adminis- 
 tration of justice. Even jurors are entitled to respect- 
 ful treatment. They do not sit in the trial of causes 
 of their own volition, but are compelled to serve, and 
 they are, as a rule, men of average intelligence and 
 honesty. Their verdicts, though oftentimes seeming 
 to others to be contrary to the weight of the evidence, 
 are nevertheless, in nearly all cases, the result of their 
 honest opinions as to what the law and justice be- 
 tween the parties litigant demand. To repeatedly 
 charge them with passion and prejudice and improper 
 motives is to charge that the vast body of men of 
 average intelligence and honesty are incapable of 
 doing justice, and it tends to create a prejudice against 
 the jury system. That this prejudice is on the increase 
 is not to be denied, but it is to be deplored. It arises 
 chiefly through ignorance of the fact that the far 
 larger proportion of the unfortunate results attributed 
 to the passion and prejudice, or ignorance and stu- 
 pidity, of jurymen are solely chargeable to legislative 
 acts and judicial decisions. The decision of questions 
 of fact is, as all must concede, far more difficult than 
 the decision of questions of law, and this is, to some ex- 
 tent, recognized by the maxims, "ignorance of fact 
 excuses " and " ignorance of the law does not excuse." 
 Yet, as every lawyer of experience knows, for every 
 error committed by juries as to the facts, at least ten 
 errors are committed by the courts as to the law. So 
 
PASSION AND PREJUDICE. 283 
 
 uncertain is the law and so thoroughly is its uncertainty 
 understood, that, whatever may be the question de- 
 bated, the common expression is, "God only knows what 
 the court will decide." Such being the state of the 
 law, which, according to Lord Coke, is the perfection 
 of reason, it ill becomes judges to cry out against the 
 passion and prejudice, or ignorance and stupidity, of 
 jurors. 
 
 The circuit judges, too, are entitled to fair and re- 
 spectful treatment, and a failure to receive it has a 
 tendency to lessen their respect for their superiors. 
 When a circuit judge reads an opinion of an appellate 
 court announcing that a judgment must be reversed 
 because he has refused to set aside a verdict which is 
 declared to be plainly and palpably" unjust and the 
 result of passion and prejudice, or because of some 
 trivial error, in an instruction, which occurred, per- 
 haps, from what is, in legal phraseology, termed an 
 "inadvertent remark" of that very appellate court, 
 and which error he knows in no way affected the 
 verdict, he would indeed be possessed of the patience 
 of a Job, if his temper remained wholly unruffled. 
 Besides, these repeated reversals of judgments on 
 account of passion, prejudice and sympathy, with 
 express or implied reflections upon circuit judges, can- 
 not but tend to break down their reputation among 
 the bat and the people and bring the administration of 
 justice into disrepute. 
 
 But the effects of these decisions upon juries and 
 circuit judges are of small consequence as compared 
 with their effects upon the judges of the supreme 
 court themselves. Judges,- like other mortals, are 
 only human, and when firmly convinced that, in a 
 certain class of cases, the verdicts of juries are often the 
 result of other considerations than, a fair and impar- 
 tial view of the law and the evidence, they are quite 
 
284 TRIAL BY JURY. 
 
 likely to look upon all suits of that class with suspi- 
 cion, and however just a verdict in a particular case 
 may be, the party in whose favor it has been rendered 
 will suffer some disadvantage by reason thereof. If 
 juries are prejudiced against railroad companies, be- 
 cause of their wealth and power, and are thus led to 
 do them injustice, so likewise courts may become 
 prejudiced in favor of railroad companies, because of 
 their supposed inability to obtain justice at the hands 
 of a jury, and as courts have the final decision of 
 causes, it may follow that this supposed prejudice 
 against these corporations will result in giving them 
 practical immunity from prosecution for torts. Some 
 of the consequences of this supposed passion and 
 prejudice have already been pointed out, and it is now 
 proposed to show that another result has been judicial 
 legislation substantially nullifying the constitutional 
 right of trial by jury. 
 
 The first measure resorted to by the supreme court 
 tending to restrict the right of trial by jury was the 
 reversal of judgments without remanding causes. 
 Such was the course pursued in the Stumps Case, 69 
 111. 410, the Patterson Case, 93 111. 290, the Bell Case, 
 70 111. 102, the Cragin Case, 71 111. 177, the Chambers 
 Case, 71 111. 519, the Hall Case, 72 111. 222, the Green 
 Case, 81 111. 19, the Lutz Case, 84 111. 598, the Keen 
 Case, 72 111. 512, and the Houck Case, 72 111. 285. In 
 the latter two cases the court went to the extent of 
 entering judgment against the appellee for costs, not 
 only in the supreme but also in the circuit court. 
 
 Were this practice confined to cases where the evi- 
 dence introduced did not tend to prove all the elements 
 necessary to constitute a cause of action, it could not 
 be regarded as objectionable, as the decision of the 
 court would be practically upon a matter of law only, 
 and not a decision upon the facts. But when it is 
 
ALLOWING NEW TRIALS. 285 
 
 applied in cases where there is evidence tending to 
 prove the cause of action, but the verdict is manifestly 
 against the weight of evidence, it is nothing more nor 
 less than' a plain and palpable violation of the consti- 
 tution, and no species of reasoning can make it appear 
 otherwise. It amounts to an amendment of the con- 
 stitution, so as to make it read " the right of trial by 
 jury shall remain inviolate, unless otherwise ordered 
 by the supreme court." 
 
 The next step taken by the court was to construe 
 the statutory provision that "no more than two new 
 trials shall be granted to the same party in the same 
 cause " as only applicable to the circuit courts, and not 
 as controlling the supreme court. The reasoning by 
 which the court arrived at this result must be read to 
 be properly appreciated. 
 
 In Wolbrecht v. Baumgarten, 26 111. 291, Mr. Jus- 
 tice Breese, in delivering the opinion of the court, 
 says : 
 
 " Although there might be a case where this court would 
 set aside a third verdict as being entirely without evidence to 
 support it, or for a gross misdirection of the court as to the 
 law, we do not think this is such a case." 
 
 In Silsbe v. Lucas, 53 111. 481, Mr. Justice Walker, 
 in delivering the opinion of the court, says: 
 
 " It is insisted by appellant that the court below erred in 
 the admission of evidence on the trial, and should have granted 
 a new trial for that reason. On the other side, it is urged that, 
 there having been two new trials previously granted, a further 
 new trial was prohibited by the statute. The provision of the 
 statute referred to as opposed to granting another new trial is 
 the thirty-fourth section of the practice act. (Gross' Comp). 
 It declares that, ' No more than two new trials shall be granted 
 to the same party in the same cause.' The question is pres- 
 ented, whether this provision was intended to control at all 
 times, and under every kind of circumstances, whether it re- 
 
286 TRIAL BY JURY. 
 
 lates alone to where the finding of the jury is against the 
 evidence, or whether it embraces new trials allowed for errors 
 committed in the admission or rejection of evidence, in giving 
 or refusing instructions, or for other improper rulings of the 
 judge trying the cause, and whether it embraces new trials 
 arising from reversals of the judgment on error or appeal to 
 this court. 
 
 "It would seem to be eminently proper, where three juries 
 have found the facts the same way, that there should be an end 
 of the controversy as to what the facts are. The law having 
 constituted the jury the judges of the facts, and only invested 
 the judge with power to set aside the verdict when it is to his 
 mind against the evidence, and when the persons authorized to 
 find the facts have three times determined them the same way, 
 the supervisory power of the judge should then cease, and the 
 facts thus found should be conclusive. 
 
 " The same reason does not apply to the granting of new 
 trials because errors in law have been committed. It is the 
 duty of the judge trying the cause to apply the law correctly, 
 and if he should commit an error, it is his duty, jf discovered 
 in time, and while the case is under his control, to correct the 
 error. We cannot believe that the legislature intended to re- 
 lieve the court from the duty of correcting errors he may have 
 committed on the trial, or to sanction such errors. If so ; the 
 legislature would have declared that there should be no more 
 than two reversals of judgments in the same case on errors 
 assigned by the same party. But the law requires this court 
 to reverse in all cases where errors- have been committed by the 
 court below, that are, or might be, prejudicial to the party seek- 
 ing a reversal; and there is no limitation of the power, or 
 exoneration from the duty of correcting all such errors. This 
 court has no option but to reverse whenever such errors have 
 intervened, whether it be the second, third, or any other num- 
 ber of times the errors have occurred against the same or other 
 party, and the legislature could not have intended to preclude 
 the c'ircuit judge from granting a new trial when he had com- 
 mitted errors, and compel the party to incur the expense of 
 prosecuting the case in this court for their correction, and to 
 obtain a new trial in that mode. Such indirection could not 
 
ALLOWING NEW TRIALS. 287 
 
 have been designed. We are clearly of opinion that it is the 
 duty of the court trying the cause to grant a new trial when- 
 ever the motion is interposed, if satisfied that he has erred in 
 admitting or rejecting evidence, or in giving or refusing in- 
 structions, or deciding any other legal question, and is only 
 restrained, by the statute, from reviewing the action of the 
 jury in finding the facts after the concurrent number of ver- 
 dicts, specified by the statute, have been found." 
 
 In Stanberry v. Moore, 56 111. 473, Mr. Justice Thorn- 
 ton, in delivering the opinion of the court, says : 
 
 "There have been three verdicts in this case, and, if we 
 could find any evidence to sustain the judgment appealed from, 
 we should be reluctant to disturb it. The statute which pro- 
 vides that no more than two new trials shall be granted in 
 the same case, has special application to suits in the circuit 
 court. In Wolbreeht v. Baumgarten, 26 111. 291, this court held 
 that there might be a case where a third verdict might be set 
 aside by this court, where there was no evidence to support it, or 
 for gross misdirection of the court as to the law. In this 
 regard our power is not restricted by any statutory provision, 
 and the ends of justice are often subserved in setting aside 
 verdicts which have no foundation upon which to rest." 
 
 In I. C. R. R. Co. v. Patterson, 93 111. 291, Mr. Justice 
 Walker, in delivering the opinion of the court, says : 
 
 "When this case was before us at a former term (see 69 111. 
 650) the judgment was reversed, because the verdict was not 
 sustained by the evidence. After being remanded, and tried 
 with a similar result, it comes again before us for hearing on 
 appeal. 
 
 " It is urged that the statute has prohibited the court from 
 reversing, as by so doing it would be to grant more than two 
 new trials to appellant in this case. The fifty-seventh section 
 of the Practice Act provides that ' No more than two new trials 
 upon the same grounds shall be granted to the same party in 
 the same cause.' Appellee refers to several cases decided by the 
 Supreme Court of Indiana, which hold, under their statute, that 
 ' When two new trials have been granted to a party, whether 
 
2SS TRIAL BY JURY. 
 
 by the court below on motion, or by reversal in this court on 
 appeal, the judgment cannot be reversed, though error may have 
 been committed on the last trial.' We do not have the Indiana 
 statute before us, and are unable to say whether the two stat- 
 utes differ in their provisions, although we presume they do. 
 But even if they are alike in all of their provisions, we having 
 given a different construction to our statute, which has been 
 announced and adhered to in several cases, running through a 
 series of years, and being entirely satisfied with the construc- 
 tion we have placed on our statute, we must decline to overrule 
 our former decisions merely to conform them to the construc- 
 tion given by that court, although we have a high respect for 
 its decisions. 
 
 " The revision of 1874 has changed the section, previously 
 in force, in the statutes. The section formerly in force in gen- 
 eral terms prohibited the granting of more than two new trials 
 to the same party in the same case. Under that section the 
 question was before us in Wolbrecht v. Baumgarten, 26 111. 291, 
 Silsbe v. Lucas, 53 id. 479, and Stanberry v. Moore, 56 id. 472. 
 And in the last of these cases it was held that the statute does 
 not operate to restrict this court in reversing judgments in the 
 same case any number of times. And a third verdict was set 
 aside m that case, because it was not sustained by the evidence, 
 thus virtually holding that section had no application to the 
 practice in this court. The portion of the chapter on Practice, 
 in which this section is found, has no reference to practice in 
 this court, and we are satisfied, when adopted, that it was the 
 purpose that it should apply only to practice in the circuit and 
 other courts trying the facts, and not to the appellate courts. 
 We, therefore, under these decisions, shall proceed to consider 
 the evidence in this case." 
 
 In the first of the four above-mentioned cases, the 
 opinion of the court upon the point under discussion 
 was clearly dictum. In Silsbe v. Lucas, the question was 
 whether the prohibition against granting a third new 
 trial was intended to apply where errors of law had been 
 committed by the circuit court, and it was held that it 
 was not, but that the circuit court might grant any 
 
ALLOWING NEW TRIALS. 289 
 
 number of new trials for errors of law, though it 
 could not review the action of the jury in finding the 
 facts after three verdicts in favor of the same party. 
 In Stanberry v. Moore, the only authority cited was 
 Wolbrecht v. Baumgarten, and in I. C. R. R. Co. v. 
 Patterson, the court, after citing its three former deci- 
 sions, reversed the judgment after two new trials had 
 been granted, solely because the verdict was contrary 
 to the evidence, and held, that neither by the statute 
 of 1874, nor by the former statute, was there any 
 limitation placed upon their own power of exercising 
 supervision over the finding of the jury as to the 
 facts. 
 
 The reasoning by which the court arrived at this 
 conclusion, if it can be fairly said that they reasoned 
 at all, is manifestly unsound. The power of the 
 supreme court to review the finding of the jury as to 
 the facts was conferred solely by the statute which 
 provides that "exceptions taken to decisions of the 
 court overruling motions in arrest of judgment, mo- 
 tions for new trials, motions to amend and for contin- 
 uances of causes shall be allowed, and the party 
 excepting may assign for error any decision so ex- 
 cepted to." R. S. 1874, p. 782, §61 ; R. S. 1845, p. 416, 
 § 23 : Laws of 1837 (2d Sess.) 109 ; C. & R. I. R. R. Co. v. 
 McKean, 40 111. 221. Hence, to bring before the supreme 
 court the finding of the jury for review, there must be 
 a bill of exceptions containing all the evidence intro- 
 duced upon the trial, a motion for a new trial over- 
 ruled with an exception to the decision of the court 
 thereon, and an assignment of error alleging that the 
 court below erred in overruling the motion for a new 
 trial. But, if the circuit court has granted two new 
 trials on the ground that the verdicts were contrary 
 to the- evidence, it has no power to grant a third. 
 How, therefore, can it err in overruling a motion for a 
 
 19 
 
290 TRIAL BY JURY. 
 
 third new trial, and how can the supreme court sustain 
 such an assignment of error and reverse the judgment 
 because the circuit court has obeyed the law instead 
 of violating it ? The supreme court is generally sup- 
 posed to be a court created for the correction of the 
 errors of inferior tribunals, and not for the reversal of 
 judgments entered by such tribunals in strict compli- 
 ance with the constitution and statute. The action of 
 the supreme court in this class of cases can only be 
 sustained because it is the court of last resort, 
 and upon the vicious doctrine that "might makes 
 right" — a doctrine which should not be countenanced 
 in courts of justice. Even a court of last resort is 
 excusable for occasional errors, if those errors are 
 arrived at by reasoning, which, though defective, is 
 stated. But when it jumps at a conclusion without 
 giving any reason, and the conclusion is one which is 
 contrary to all reason, it is in the highest degree cen- 
 surable. 
 
 The third step taken, tending toward the nullifica- 
 tion of the right of trial by jury, was the adoption 
 and putting into practical operation of the following 
 section of the Practice Act, which went into force 
 July 1, 1877: 
 
 " § 87. If any final determination of any cause, as specified 
 in the preceding sections, shall be made by the appellate court, 
 as the result wholly or in part of the finding of the facts con- 
 cerning the matter in controversy, different from the finding of 
 the court from which such cause was brought by appeal or writ 
 of error, it shall be the duty of such appellate court to recite in 
 its final order, judgment or decree, the facts as found, and the 
 judgment of the appellate court shall be final and conclusive as 
 to all matters of fact in controversy in such cause." 
 
 Were this section held applicable only to chancery 
 cases, and to actions at law tried by the court without 
 the intervention of a jury, it would be unobjection- 
 
POWER OF APPELLATE COURTS. 291 
 
 able, but when applied to actions tried by jury, so as 
 to permit the appellate court to reverse the finding of 
 the jury and to substitute therefor the finding of the 
 judges, it is nothing if not a plain and palpable vio- 
 lation of that provision of the constitution which 
 declares that the right of trial by jury shall remain 
 inviolate. It has been so applied in numerous cases, 
 of which it will be sufficient to cite three. 
 
 In C. & A. R. R. Co. v. McKenna, 14 Brad. 472, 
 which was an action brought against the railroad com- 
 pany for negligence resulting in the death of plaintiff's 
 intestate, there was a verdict and judgment for $5,000 
 in the circuit court in favor of the plaintiff. Upon 
 appeal to the appellate court this judgment was re- 
 versed with an order that the cause be not remanded 
 and a finding entered by the appellate court to the 
 effect that there was no negligence on the part of the 
 defendant, and hence no cause of action. If the stat- 
 ute under which this finding was entered will work 
 one way, it ought to work both ways. Suppose, then, 
 that, upon the trial in the court below, the jury had 
 found in favor of the defendant, and that the appel- 
 late court had been satisfied there was no negligence 
 on the part of the deceased, but that there was gross 
 negligence on the part of the railroad company re- 
 sulting in McKenna's death and pecuniary injuries to 
 his next of kin to the amount of $5,000, and had 
 accordingly reversed the judgment with an order that 
 the cause be not remanded, and entered a finding and 
 judgment in favor of the plaintiff for $5,000, what 
 would have been the result ? Would such a proceed- 
 ing have been sustained by the supreme court ? If 
 not, why not ? The statute apparently authorizes such 
 a finding and declares that it shall be final and con- 
 clusive, and another section authorizes the supreme or 
 appellate court to give final judgment and issue exe- 
 
292 TRIAL BY JURY. 
 
 cution without remanding a cause to the inferior court, 
 and it ought not to be supposed that the supreme 
 court would sanction the usurpation by the appellate 
 court of the powers of the jury in the one case any 
 more than in the other. If the right of trial by jury 
 is to be held inviolate as to one party, it ought to be 
 as to the other. Certainly a system of administering 
 justice which sacredly guards the right of a railroad 
 company to a trial by jury and denies it to an individ- 
 ual, or denies it to any plaintiff and preserves it to 
 every defendant, cannot commend itself to any fair- 
 minded man as founded upon sound reason. 
 
 If this statute could be thus liberally construed in 
 favor of both parties, it is not apparent what further 
 use there can be for a jury. Much time, trouble and 
 expense might be saved by taking the testimony in 
 such cases by depositions and transmitting them in the 
 first instance to the appellate court for their decision. 
 This plan would have much to commend it to the 
 favorable consideration of the public and the profes- 
 sion. Every case would then be decided upon its mer- 
 its — as understood by the appellate courts. No errors 
 of law would be committed and the trial judge would 
 no longer be plunged into perplexing doubts as to how 
 to state, when to state, and when not to state, to the 
 jury the doctrine of comparative negligence. But it 
 is useless to speculate upon the advantages of such a 
 construction, as an attempt on the part of the appel- 
 late court to reverse the verdict of a jury in favor of 
 the defendant and to substitute therefor a finding and 
 judgment in favor of the plaintiff would never be 
 sanctioned by the supreme court. The statute was not 
 intended for any such purpose. The object of its fram- 
 ers was to furnish a forcibhT illustration of the maxim 
 melior est conditio defendentis, especially when the 
 defendant is a railroad company. 
 
POWER OF APPELLATE COURTS. 293 
 
 In the case of Clark v. C, B. & Q. R. E. Co., 92 111. 46, 
 the statute was recognized as valid by the supreme 
 court. The facts in the case and the opinions of the 
 (appellate and supreme courts have been sufficiently- 
 set forth in a . previous chapter (ante, p. 54). It is 
 only referred to now for the purpose of showing that, 
 under the statute in question, a verdict of a jury 
 which is plainly and palpably right may be converted 
 into a finding of facts by an appellate court and a 
 judgment thereon which are plainly and palpably 
 wrong. In the Moranda Case, 93 111. 302, which had 
 been taken under advisement by the supreme court 
 long before the Clark Case was submitted, the court 
 held that in order to relieve the master from liability 
 for an injury to one servant caused by the negligence' 
 of another servant, it was essential that they should 
 be, at the time of the injury, directly co-operating 
 with each 'other in the particular business in hand, or 
 that their usual duties should bring them into habitual 
 consociation, so that they might exercise an influence 
 upon each other promotive of proper caution, and 
 accordingly it was ruled that a track repairer and the 
 fireman of a passing express train were not such fel- 
 low-servants. The same ruling had been made in two 
 previous cases. It had also been held that a brakeman 
 and the foreman of the roundhouse, a brakeman and 
 servants who had placed an awning too near the track, • 
 a brakeman and car-repairers, a fireman and servants 
 who had placed a mail-catcher too near the track, a 
 common laborer in a carpenter shop and ah engineer, 
 and others similarly related (see ante, p. 5*9) were 
 not such fellow-servants. Yet in the Clark Case the 
 appellate court held that an engineer on a train of the 
 lessor railroad company was a fellow-servant of the 
 conductdr of a wild freight train of a lessee company, 
 although they were manifestly not directly co-opera- 
 
294 TEIAL BY JURY. 
 
 ting in the particular work they were about, nor con- 
 sociated in their ordinary duties, and this view was 
 not disapproved of by the supreme court. Again, in 
 the Moranda Case it was held that the term " ordinary 
 risks" as applied in actions brought by the servant 
 against the master for negligence, was confined in its 
 operation to cases where the servant injured and the 
 offending servant were "fellows" and did not embrace 
 the acts of negligence of other servants of the master 
 who were not regarded as "fellow-servants." Yet in 
 the Clark Case both the appellate court and the su- 
 preme court held that, even if the engineer, Clark, and 
 the conductor, Gage, were not fellow-servants, never- 
 theless, one of the ordinary risks of an engineer was a 
 'collision of his train with another caused by the negli- 
 gence of another servant of the company not his fel- 
 low-servant. 
 
 Such was one of the unfortunate results x)f this un- 
 constitutional statute. Had the appellate court simply 
 reversed the judgment in the Clark Case and remanded 
 the cause, the final result might have been different, 
 for before it could have been retried, the long and tedi- 
 ous process of formulating the opinion in the Moranda 
 Case, which required over two years, would have 
 been completed, and under the rules it announced 
 Clark and his companion Van Hagen, whose judgment 
 was reversed at the same time (see 2 Brad. 602), 
 would necessarily have again been successful in the 
 circuit court and the judgments obtained would never 
 have been reversed. 
 
 Not only has this statute been thus put into practi- 
 cal operation, but it has been so construed as to vest 
 in the appellate court absolute and uncontrollable 
 power to defeat every plaintiff, no matter what the 
 action may be and no matter how large a judgment 
 he may recover in the circuit court. This appears 
 
POWER OP APPELLATE COURTS. 295 
 
 from the case of Brown v. City of Aurora, 109 111. 166, 
 in which Mr. Justice Mulkey, in delivering the opinion 
 of the court, says : 
 
 " Eugene L. Brown, the plaintiff in error, recoTered a judg- 
 ment, in the Kane circuit court, against the city of Aurora for 
 $6,000, on account of injuries received by him in a fall upon 
 one of the sidewalks of that city, charged to have been occa- 
 sioned by the negligence of the city in not keeping the same in 
 repair. On appeal by the city to the Appellate Court for the 
 Second District, the judgment was reversed, on the ground the 
 evidence did not support the verdict of the jury, and for this 
 reason the appellate court declined to remand the cause to the 
 circuit court for another trial. Brown thereupon sued out the 
 present writ of error, and the case is now before us for review. 
 
 " The facts, as specifically found by the appellate court, and 
 recited in the final order in the cause, are as follows : 'That 
 the sidewalk upon which the injury was received was, at the 
 time the said injury was received, reasonably safe, as a sidewalk, 
 for thcappellee (plaintiff in error) to pass over it, if he exer- 
 cised ordinary care ; that before and at the time appellee passed 
 over said sidewalk on the occasion of receiving said injury, he 
 was fully aware of the condition as to its slipperiness and all 
 other defects in and of said walk, and at the said time of so 
 passing over the said sidewalk, he, the appellee, did not exercise 
 that ordinary care that a reasonably prudent man would have 
 done under the same circumstances ; and we further find that 
 the appellant did exercise Ordinary care in constructing and 
 maintaining said walk, and was in the due exercise of such care 
 in maintaining said walk at the time of said injury. 1 
 
 " It is virtually conceded by counsel for plaintiff in error, 
 that if the foregoing is, within the meaning of the statute, to. 
 be regarded as a finding of the facts, it is conclusive of the case 
 in this court, and the judgment of the appellate court must 
 necessarily be affirmed. It is urged, however, that the findings 
 of the appellate court are mere conclusions upon the facts, 
 rather than the findings of the facts themselves. If by 'conclu- 
 sions upon the facts,' counsel mean 'conclusions of fact,' — or, 
 in other words, inferences drawn from the subordinate or evi- 
 
296 TRIAL BY JURY. 
 
 dentiary facts, — the statement to that extent may be conceded, 
 and yet it does not at all militate against the conclusiveness of 
 the findings. In all cases the ultimate fact or facts to be estab- 
 lished in a suit and upon which the rights of the parties to it 
 necessarily depend, are, when considered with reference to- the 
 facts or evidence by which they are established or proved, but 
 the logical results of the proofs, — or, in other words, mere con- 
 clusions of fact. Yet these logical results of the proofs or 
 conclusion of facts, when considered with reference to the 
 basis of the judgment to be rendered in the cause, are properly 
 termed the 'facts found,' or ultimate facts in the case. The case 
 in hand affords as good an illustration of this as any that could 
 be suggested. * * * 
 
 " Do counsel wish to be understood as maintaining that the 
 facts which the appellate court is required to recite in its final 
 order are nothing but the evidentiary facts, — or, more shortly, 
 the evidence in the cause ? And is it only these facts this court 
 is prohibited from considering? It is manifest the legislature 
 never could have intended anything of that kind. So far as the ' 
 mere evidence or subordinate facts are concerned, there can 
 never be any controversy as to what they are when once em- 
 bodied in a bill of exceptions. The great controversy in all 
 cases is, as to whether these subordinate facts prove the ultimate, 
 or issuable facts upon which every ease must necessarily turn. 
 If this court is bound to re-examine the issuable facts in every 
 case where it is claimed the appellate court has erred in its find- 
 ings, as is insisted on here, would it not necessarily lead to an 
 examination of every case upon the evidentiary facts also ? For 
 how could the conclusions of fact be passed on without consider- 
 ing the testimony upon which they are based ? It is clear there 
 would be no other way of doing it, and this conclusively shows 
 .the fallacy of such a position. If the appellate court had no 
 right to find there was or was not negligence on the part of the 
 city, what should it have found? Should it merely have gone 
 on and recited that this witness swore to this fact, and that wit- 
 ness swore to that fact, and so proceeded until everything testi- 
 fied to had been gone over? To have done so would really have 
 been finding nothing, for all that would have been apparent 
 upon a mere reading of the bill of exceptions. The appellate 
 
POWER OF APPELLATE COURTS. 297 
 
 court, where it differs from the conclusions reached by the trial 
 court, is required to recite in its final order the facts as found 
 by that court. The expression 'facts as found 1 necessarily 
 implies the drawing of a conclusion or inference from the 
 evidentiary facts embodied in the bill of exceptions, and this 
 conclusion or inference to be drawn is nothing more than the 
 factum probandum, or ultimate fact or facts, upon which the 
 case depends, and which it was the duty of the appellate court 
 to find. 
 
 " The errors assigned do not question any of the rulings of 
 the circuit court. Nor is it claimed that any error of law has 
 intervened, except that which results from the specific findings 
 of the appellate court, and the judgment of reversal fouuded 
 thereon. As to these matters, the action of the appellate court 
 is conclusive on this court. If its special findings were war- 
 ranted by the evidence, its judgment of reversal was manifestly 
 proper, and whether the evidence warranted the special findings 
 is not a matter for review in this court. 
 
 " The judgment will be affirmed." 
 
 The force of the statement in the latter clause of this 
 opinion, that "the errors assigned do not question any 
 of the rulings of the circuit court," will be fully appre- 
 ciated when it is considered that the plaintiff, being 
 entirely successful in that court, and therefore having 
 no cause to complain of its action or to desire the 
 reversal of the judgment, tendered no bill of excep- 
 tions, and without such bill of exceptions he could not, 
 of course, question any of the rulings of the trial 
 court. 
 
 Without, however, devoting any time to question- 
 ing the propriety of the reasoning of the court, if the 
 statute thus construed be constitutional, a few words 
 may be said as to the effect of that reasoning. Carried 
 to its logical result, it would justify the appellate court 
 in reversing a judgment in an action for negligence 
 and entering a finding of facts that "the defendant 
 was not guilty of negligence in manner and form as 
 
298 TRIAL BY JURY. 
 
 is alleged in the plaintiff's declaration," or in an action 
 of assumpsit that "the said defendant did not under- 
 take and promise in manner and form as is alleged in 
 the declaration." And if the statute is to be continued 
 in force, the judges of the appellate courts should 
 make a note of this, as it will save them much unne- 
 cessary labor. There is no use in making a recital 
 four or five pages in length, when two or three lines 
 will answer as well. 
 
 In view of this construction of the statute, it may 
 be well to consider how it affects the standing of a 
 plaintiff and a defendant in the supreme court. This 
 may be illustrated by applying it to the six cases 
 reviewed in the first chapter of this work, to wit, the 
 Sykes, Johnson, Clark, Warner, Moranda and Dough- 
 erty cases. 
 
 In the Sykes Case, twenty-four jurymen found that 
 Sykes exercised due care, and that the defendant was 
 guilty of negligence causing his deatfr Two circuit 
 judges, and finally three appellate judges, approved 
 the finding. Yet the judgment was reversed by the 
 supreme court, and the cause remanded for a new 
 trial. Had the appellate court reversed the finding of 
 the twenty-four jurymen approved by two circuit 
 judges, and entered a finding of their own that Sykes 
 was guilty of negligence and the defendant not, the 
 supreme court would have affirmed their judgment, 
 and thus ended the litigation. 
 
 In the Johnson Case, twelve jurymen found the 
 defendant guilty. That finding was approved by a 
 circuit judge and three appellate judges. Yet the 
 judgment was reversed by the supreme court, and the 
 cause remanded for a new trial. Had the appellate 
 court reversed the finding of the jury, and themselves 
 found the defendant not guilty and entered final judg- 
 
POWER OF APPELLATE COURTS. 299 
 
 ment, the supreme court would have affirmed the 
 judgment, and thus ended the litigation. 
 
 In the Clark Case, twenty-four jurymen found that 
 Clark exercised due care and that the defendant was 
 guilty of negligence causing his death. Two circuit 
 and three appellate judges approved that finding. Yet 
 the judgment was reversed by the supreme court, and 
 the cause remanded for a new trial. Had the appel- 
 late court reversed the finding of the jury, and them- 
 selves found that Clark was injured by one of the 
 ordinary perils of the service in which he was engaged, 
 the supreme court would have affirmed their judgment, 
 and thus ended the litigation. 
 
 In the Warner Case, twelve jurymen found the de- 
 fendant guilty. That finding was approved by a circuit 
 judge and three appellate judges. Yet the judgment 
 was reversed by the supreme court, and the cause 
 remanded for a new trial. Had the appellate court 
 reversed the finding of the jury and entered a finding 
 of not guilty, their judgment would have been approved 
 by the supreme court, and thus an end would have 
 been put to the litigation. 
 
 In the Moranda Case, twenty-four jurymen found 
 the defendant guilty, and that Moranda was not a 
 fellow-servant. Two circuit judges and three appellate 
 judges approved the finding ; and the seven judges' of 
 the supreme court once approved the finding that Mo- 
 randa was not a fellow-servant. Yet the supreme court 
 reversed the judgment and remanded the cause for a 
 new trial, principally on the ground that the finding 
 that Moranda was not a fellow-servant was arrived at 
 " in violation of the rules of strategy." Had the appel- 
 late court reversed the finding of the jury, and entered 
 a finding of their own that Moranda was a fellow-ser- 
 vant of the fireman who killed him, the supreme court 
 would have ended the litigation by affirming the judg- 
 
300 TRIAL BY JURY. 
 
 ment, notwithstanding they had previously decided 
 the contrary. 
 
 In the Dougherty Case, twenty-four jurymen found 
 the defendant guilty. Two circuit judges and three 
 appellate judges concurred in the finding. Yet the 
 judgment was reversed by the supreme court, and the 
 cause remanded for a new trial. Had the appellate 
 court reversed the finding of the jury and entered a 
 finding of not guilty, their judgment would have been 
 affirmed by the supreme court, and thus an end would 
 have been put to the litigation. 
 
 Additional illustrations may also be drawn from 
 the Lewis, Avery and Frelka cases, the three out of the 
 nine cases of appeals from the appellate courts spoken 
 cf in the first chapter, in which the judgments were 
 affirmed by the supreme court. 
 
 In the Lewis Case, twelve jurymen found the de- 
 fendant guilty. One circuit judge and three appellate 
 judges approved the finding, and the judgment was 
 affirmed by the supreme court. Had the appellate 
 court reversed the finding of the jury and entered a 
 finding of their own of not guilty and a judgment 
 thereon, that judgment would also have been affirmed 
 by the supreme court. 
 
 In the Avery Case, thirty-six jurymen found the 
 defendant guilty. Three circuit judges and three 
 appellate judges approved the finding, and the judg- 
 ment was affirmed by the supreme court. Had the 
 appellate court reversed the finding of the jury and 
 entered a finding of their own of not guilty and a 
 judgment thereon, that judgment also would have 
 been affirmed by the supreme court. 
 
 In the Frelka Case, twenty-four jurymen found the 
 defendant guilty. Two circuit judges and three appel- 
 late judges approved the finding, and the judgment 
 was affirmed by the supreme court. Had the appellate 
 
POWER OF APPELLATE COURTS. 301 
 
 court reversed the finding of the jury and entered a 
 finding of their own of not guilty and a judgment 
 thereon, that judgment also would have been affirmed 
 by the supreme court. 
 
 Treating these cases as sufficient statistics from 
 which to calculate results, we arrive at the conclusion 
 that, under the operation of this statute, the appellate 
 court, when they approve verdicts, each rendered by 
 one or two juries and each sanctioned by one or two 
 circuit judges, are wrong in two cases and right in one 
 case out of every three, whereas if they annulled 
 every verdict and entered a contrary finding of their 
 own, they would be right in every case. 
 
 Thus it appears that under this one-sided statute 
 the appellate courts have absolute power over every 
 plaintiff in a common law action, when he has been 
 successful in the trial court, and may crush him out 
 with a "killing decree," but they have no power to 
 deprive a defendant of the right of trial by jury in any 
 such case. It also appears that the approval by the 
 appellate court of a verdict concurred in by several 
 juries and sanctioned by several circuit judges in no 
 way benefits the plaintiff in the supreme court. It is 
 only when they choose to disagree entirely with the 
 circuit judges and juries that the judges of the appel- 
 late court are all-powerful and their judgments final 
 and conclusive. 
 
 The purpose for which this statute was enacted is 
 self-evident. It was a direct thrust at the right of trial - 
 by jury and was made in the interest of railroad com- 
 panies and others who did not wish the kind of justice 
 that might be meted out by juries. As railroad com- 
 panies are almost always defendants, the statute is 
 pre-eminently a railroad measure. Its enactment was, 
 in truth and in fact, the boldest case of grand larceny 
 of constitutional rights disclosed by the legislative 
 
302 TRIAL BY JURY. 
 
 history of this state, and it should be promptly nulli- 
 fied by the courts or by the legislature. If, however, 
 the courts and the legislature are of a different opin- 
 ion, it is certainly not too much to ask that the statute 
 be amended so as to allow a final and conclusive find- 
 ing of facts by the appellate court when they affirm a 
 judgment as well as when they reverse one. Their 
 judgments would then be as conclusive when they 
 agree with the juries and circuit judges, as they now 
 are when they choose to enter contrary findings. 
 
 We have thus seen three of the steps taken to nul- 
 lify the constitutional right of trial by jury, each of 
 which, after the first, was more violent than its prede- 
 cessor, and it will, no doubt, seem to the reader that 
 this important right had, by these successive meas- 
 ures, been quite effectually destroyed. But practical 
 experience demonstrated that these various processes 
 were too tedious and expensive, and it seemed expe- 
 dient to devise some method by which the trial could 
 be strangled in its infancy. Such a method was accor- 
 dingly adopted and put into practical operation, but 
 against the protests of three out of the seven members 
 of the court, as will now be shown. 
 
 The fourth step taken by the court tending to nullify 
 the right of trial by jury was the approval of the action 
 of the trial court in directing a verdict for the defend- 
 ant when there was evidence introduced before the 
 jury tending to prove the issues on the part of the 
 •plaintiff. A few cases will be quoted from to show 
 how this result was arrived at. 
 
 In Smith v. Qillett, 50 111. 300, Mr. Justice Breese, 
 in delivering the opinion of the court, says : 
 
 " It is the settled practice in this state, sanctioned by repeated 
 decisions of this court, that the court trying a cause shall not 
 instruct the jury as to the weight of evidence — what it does, 
 or not, in fact, prove — provided it .tends to establish the case 
 
DIRECTING YERDICT OF JURY. 303 
 
 attempted to be made. If offered by the plaintiff, he has a right 
 that the jury shall weigh it and pass upon it, without the inter- 
 ference of the court. The ground of the motion was, that 
 evidence given to the jury, without objection, did not sustain 
 the issue on plaintiff's part, and the court, by excluding it, so 
 affirmed. Was it not a clear case for instructions from the 
 court as to the legal import of the contract, and was it not the 
 right of the jury to find, from its terms, the intent of the 
 parties as to the place of delivery, to be collected from the 
 nature of the case and the circumstances attending it ? Was not 
 all the evidence submitted of which the nature of the case was 
 susceptible, as set forth, especially in the fourth count ? We 
 think it was, and being so, it fulfilled one of the fundamental 
 rales of evidence, and the plaintiff had the undoubted right to 
 have the jury pass upon it." 
 
 In Crowley v. Crowley, 80 111. 469, Mr. Justice Craig, 
 in delivering the opinion of the court, says : 
 
 " It is insisted that the court erred in excluding the evidence 
 from the jury, on motion of appellee. 
 
 " Where the evidence tends to prove the issue, it would be 
 error for the court to exclude it from the jury, although, in the 
 opinion of the court, the evidence might not be sufficient to 
 authorize a verdict. Where the whole evidence is excluded 
 from the jury by the court, it is, in effect, an instruction to the 
 jury, as in case of a nonsuit — a practice that has no sanction in 
 this state. Smith v. Gillett, 50 111. 291. 
 
 "We are not prepared to say the evidence excluded by the 
 court tended to prove the issue ; but even if it did, and if it 
 was improperly excluded from the consideration of the jury, we 
 cannot,, on that account, reverse, for the reason that it was an 
 error that did appellant no harm. 
 
 " If the evidence had not been excluded, the verdict of the 
 jury could not have been different from what it was. Appellant 
 was, therefore, not injured by the exclusion of the evidence, 
 conceding it to have been improperly excluded." 
 
 The doctrine announced in the latter part of this 
 opinion seems to be that, although a constitutional 
 
304 TRIAL BY JURY. 
 
 right be plainly and palpably violated, a judgment will 
 not be reversed if the court are of the opinion that the 
 verdict thus obtained is right. In other words, it is 
 held that the constitution is to be treated as mere 
 advice to the courts, to be heeded or not as they may 
 deem for the best interests of all concerned. 
 
 In Poleman v. Jobnson, 84 111. 270, Mr. Justice 
 Dickey, in delivering the opinion of the court, says : 
 
 " Whether there is any evidence tending to prove any given 
 material allegation of a declaration, is a question of law for the 
 court to determine. Where there is any one essential allegation 
 of a declaration which has no proof tending to support it, it is 
 the duty of the court to exclude from the consideration of the 
 jury all the evidence in the case, or to charge the jury that there 
 is no evidence to support the supposed essential allegation of the 
 declaration, and that, for want of such proof, they must find a 
 verdict for the defendant. Where there is some evidence tend- 
 ing to support every essential allegation of a declaration, it is 
 the province of the jury to say how much weight is to he given 
 to such evidence, and to determine whether the evidence given 
 on each proposition is sufficient, in the judgment of the jury, to 
 establish or prove the proposition ; but, as said supra, it is, in 
 the first place, the province of the court to determine, as a 
 matter of law, whether there is any essential allegation of the 
 plaintiff, in support of which no evidence has been given. 
 Where this is the case, there is no question of fact to be sub- 
 mitted to the jury. 
 
 "By former rulings of this court it has been determined 
 that under our statute the circuit court cannot order, perempto- 
 rily, a nonsuit and a discharge of the jury. This does not, 
 however, take from the circuit court the power, nor relieve the 
 circuit court from the duty, in a proper case, to instruct the jury 
 that, under the proofs, there is no question of fact for them to 
 consider, and that it is their duty to return a verdict as in case 
 of nonsuit." 
 
 This opinion appears to have been concurred in by 
 all the members of the court. 
 
DIRECTING VERDICT 0E JURY. 305 
 
 In Phillips v. Dickerson, 85 111. 15, Mr. Justice Shel- 
 don, in delivering the opinion of the court, quotes with 
 approval Pawling v. The United States, 4 Cranch 221, 
 where the court say : 
 
 " The party demurring admits the truth of the testimony to 
 which he demurs, and also those conclusions of fact which a 
 jury may fairly draw from that testimony. Forced and violent 
 inferences he does not admit ; but the testimony is to be taken 
 most strongly against him, and such conclusions as a jury 
 might justifiably draw the court ought to draw." 
 
 Also Park v. Ross, 11 How. 362, where the court 
 say: 
 
 " But a jury has no right to assume the truth of any mate- 
 rial fact, without some evidence legally sufficient to establish it. 
 It is, therefore, error in the court to instruct the jury that they 
 may find a material fact of which there is no evidence from 
 which it may be legally inferred. Hence the practice of grant- 
 ing an instruction like the present, which makes it imperative 
 upon the jury to find a verdict for the defendant, and which has, 
 in many states, superseded the ancient practice of a demurrer to 
 ewdence. It answers the same purpose, and should be tested by 
 the same rules. A demurrer to evidence admits not only the 
 facts stated therein, but also every conclusion which a jury 
 might fairly or reasonably infer therefrom." 
 
 Also Eeed v. Derfed, 8 Allen 524, where the court 
 say: 
 
 " Where the whole evidence introduced by the plaintiff, if 
 believed by the jury, is so insufficient to support a verdict that 
 the court would not permit one to stand, it is the duty of the 
 court to instruct the jury, as matter of law, that there is not 
 sufficient evidence to warrant a verdict for the plaintiff." 
 
 From this opinion Mr. Justice Scott dissented. 
 
 In Pennsylvania Co. v. Conlan, 101 111. 105, Mr. 
 Justice Scholfield, in delivering the opinion of the 
 court, after disposing of two other questions raised, 
 says: 
 
 20 
 
306 TRIAL BY JURY. 
 
 " Third— Appellant's counsel, at' the close of appellee's 
 testimony, moved to exclude it from the jury, but the court 
 refused to allow the motion. 
 
 "Counsel insist that such motions are in the nature of 
 demurrers to evidence, and should be sustained where the 
 plaintiff's proof does not make out a case, and they cite Fent et 
 al. v. Toledo, Peoria & Warsaw E'y Co., 59 111. 349, Poleman 
 v Johnson, 84 id. 269, Phillips v. Dickerson, 85 id. 11, sustaining 
 the proposition. Counsel are mistaken in the limitations of 
 the rule recognized by these cases. The motion, it is true, is 
 in the nature of a demurrer to evidence ; but, as a demurrer to 
 evidence, it was never heard that a judge could take the ques- 
 tion of fact from the jury and interpose his own judgment as to 
 the weight and preponderance of evidence in the place of theirs. 
 The rule, on the contrary, is, as is shown by these cases, the 
 demurrer admits not only all that the plaintiff's testimony has 
 proved, but all that it tends to prove ; and hence, if there is 
 evidence tending to prove the issues in favor of the plaintiff, the 
 judgment must be in his favor. There was evidence here 
 tending to prove the issues in favor of appellee, and the court 
 very properly, therefore, overruled the motion." 
 
 In this opinion all the members of the court con- 
 curred, and it may be added that it is in conformity 
 with a long line of previous decisions announcing the 
 doctrine that whenever there is evidence tending to 
 prove the issues on the part of the plaintiff, it is error 
 to direct a verdict in favor of the defendant. This 
 doctrine was also approved in a still later case. 
 
 In Fraser v. Howe, 106 111. 573, Mr. Justice Schol- 
 field, in delivering the opinion of the court, says : 
 
 " The practice of withdrawing the evidence from the jury, 
 although looked upon with disfavor (Crowley v. Crowley, 80 
 111. 469, and Smith v. Gillett, 50 id. 290), is nevertheless 
 admissible, and where there is any one essential allegation of 
 a declaration which has no evidence to support it, we have held 
 it is the duty of the court to exclude from the consideration of 
 the jury all the evidence in the case, or to charge the jury that 
 there is no evidence to support the essential allegation, and for 
 
DIRECTING VERDICT OF JURY. 307 
 
 want of such proof to find for the defendant (Poleman v John- 
 son, 84 111. 269). Motions to exclude evidence, and motions to 
 instruct the jury to find for* the defendant in such cases, are in 
 the nature of demurrers to evidence, and hence they admit not 
 only all that the testimony proves, but all that it tends to 
 prove. (Pennsylvania Co. v Conlan, 101 111.93.) If there is 
 no evidence before the jury, on a material issue, in favor of the 
 party holding the affirmative of that issue, on which the jury 
 could, in the eye of the law, reasonably find in his favor, the 
 court may exclude the evidence, or direct the jury to find 
 against the party so holding the affirmative ; but when there is 
 such evidence before the jury, it must be left to them to deter- 
 mine its weight and effect. (Best on Evidence, 1st Am. ed. 
 from 6th Lon. ed., sec. 82, p. 112.) It is not within the province 
 of the judge, on such a motion, to. weigh the evidence and 
 ascertain where the preponderance is. This function is limited 
 strictly to determining whether there is, or is not, evidence 
 legally tending to prove the fact affirmed, — i.e., evidence from 
 which, if credited, it may reasonably be inferred, in legal con- 
 templation, the fact affirmed exists, laying entirely out of view 
 the effect of all modifying or countervailing evidence. Hubner 
 v. Feige, 90 111. 208; Crowe v. The People, 92 id. 231; 
 Pennsylvania Co. v. Stoelke, Admr., 104 id. 201." 
 
 In view of the foregoing cases the doctrine an- 
 nounced in the following case could but surprise the 
 profession : 
 
 In Simmons v. Chicago & Tomah R. E. Co., 110 111. 
 340, Mr. Justice Sheldon, in delivering the opinion of 
 the court, says : 
 
 " This suit was brought to recover damages for the death of 
 Edward C. Simmons, who was a laborer in the employ of the 
 Chicago & Tomah Railroad Co., and was engaged, at the time 
 of being killed, with others, in removing a bluff or hill in the 
 city of Galena, for the purpose of preparing the foundation for 
 a roundhouse, and for laying a side track. There had been a 
 former trial, resulting in a verdict and judgment in favor of the 
 plaintiff, which judgment, on appeal to the Appellate Court for 
 the Second District, was reversed. At a second trial before a 
 
308 TRIAL BY JURY. 
 
 jury, upon the close of the plaintiff's evidence, the court, on 
 motion of the defendant, withdrew the plaintiff's evidence from 
 the jury, and directed them to find for the defendant. The jury 
 so found, and judgment was entered in favor of the defendant, 
 which, on appeal to the appellate court, was affirmed, and 
 plaintiff appealed to this court. 
 
 " The declaration alleged as ground of action, in the first 
 count, neglect of the alleged duty on the part of defendant 
 to direct and cause the work about which the deceased was 
 employed, to be done in a prudent and safe manner, and so as 
 not to endanger the lives of the employes engaged in the doing 
 of the work, by reason whereof a large mass of earth, 
 forming part of a hill which was being dug down under 
 defendant's direction, became detached, and fell upon and killed 
 the decedent. The second count alleges negligence in the 
 employment of competent persons to superintend and oversee 
 the doing of the work. * * * 
 
 "There may be decisions to be found which hold that if 
 there is any evidence — even a scintilla — tending to support 
 the plaintiff's case, it must be submitted to the jury. But we 
 think the more reasonable rule, which has now come to be 
 established by the better authority, is, that when the evidence 
 given at the trial, with all inferences that the jury could 
 justifiably draw from it, is so insufficient to support a verdict 
 for the plaintiff, that such a verdict, if returned, must be set 
 aside, the court is not bound to submit the case to the jury, but 
 may direct a verdict for the defendant. Pleasants v. Fant, 
 22 Wall. 120; Randall v. Baltimore & Ohio R. R. Co., 
 109 TJ. S. 478 ; Metropolitan R'y Co. v. Jackson, 3 App. Cas. 
 193 ; Reed r. Inhabitants of Deerfield, 8 Allen 524 ; Skellenger 
 v. Chicago & Northwestern R'y Co., 61 Iowa, 714 ; Martin r. 
 Chambers, 84 111. 579 ; Phillips v. Dickerson, 85 id. 11. In the 
 recent case of Frazer v. Howe, 106 111. 573, this court recog- 
 nized the rule to be : L If there is no evidence before the jury 
 on a material issue in favor of a party holding the affirmative 
 of that issue, on which the jury could, in the eye of the law, 
 reasonably find in his favor, the court may exclude the evidence, 
 or direct the jury to find against the party so holding the 
 affirmative.' 
 
DIRECTING VEEDIOT OP JURY. 309 
 
 " There was no evidence whatever tending to support the 
 second count of the declaration. 
 
 " The alleged ground of action in the first count is negli- 
 gence of the defendant in not having the work done in a safe 
 manner. The evidence shows there was a more proper way of 
 doing the work, and one which would have heen safe. But 
 the liability of the defendant does not thence result. * * * 
 
 "If a servant, knowing the hazards of his employment, as 
 the business is conducted, is injured while engaged therein, 
 he cannot maintain an action against the master for the 
 injury merely on the ground that there was a safer mode in 
 which the business might have been conducted, the adoption of 
 which would have prevented the injury. Many cases affirming 
 this principle are cited in the brief of counsel for defendant. It 
 was expressly laid down in Naylor v. Chicago & Northwestern 
 Railway Co., 53 Wis. 661, — a parallel case with this in its facts, 
 of an injury from the fall of a bank of earth under which plain- 
 tiff was excavating. * * * In the present case the danger was 
 as apparent to the deceased as to anyone. The condition of the 
 bank was as open to his observation as to that of the foreman. 
 He had been warned of the danger, and he expressed his, own 
 belief of the danger. He might have left the particular place 
 where he was, as did one other of his fellow-laborers on account 
 of the danger, or have avoided going to that place, as did an- 
 other one for that same reason. 
 
 " Respecting knowledge, the court, in Naylor v. Chicago & 
 Northwestern Railway Co. above cited, in commenting upon the 
 evidence there, remarked, with entire pertinency to the present 
 case : ' The plaintiff is, presumably, a man of ordinary intelli- 
 gence. He was cognizant of the practical effects of the law of 
 gravitation, and knew that when a bank of earth is undermined 
 by removing its foundation, it is liable to fall. Such knowledge 
 is not confined to experts. No one knew better than himself the 
 extent to which the bank had been undermined, or could better 
 judge of the peril,' and holding that being fully informed of the 
 peril, the plaintiff had no cause of action. Fully seeing the 
 danger here, the deceased voluntarily exposed himself to it, and 
 he must be held to have assumed all the risk of working where 
 he did and plaintiff must bear the consequences. Under the 
 
310 TEIAL BY JURY. 
 
 evidence in this case there was no cause of action, and the 
 court ruled properly. The judgment must be affirmed." 
 
 From this opinion Mr. Justice Walker, Mr. Justice 
 Scott and Mr. Justice Dickey dissent. 
 
 Mr. Justice Walker says : 
 
 " I am UDable to concur in the reasoning or conclusion in 
 this case. I regard the opinion as in direct conflict with many 
 previous decisions of this court, and virtually deprives parties of 
 trial by jury, and substitutes the court for a jury. I therefore 
 dissent toto codo? 
 
 Mr. Justice Dickey says : 
 
 " I think it a question of law whether there is any evidence 
 tending to prove a given allegation, and that it is a question of 
 fact whether a given amount of evidence is reasonably sufficient 
 to sustain such allegation. The former is a question for the 
 court, the latter a question for the jury, subject to revision by 
 the court on a motion for a new trial. I therefore cannot con- 
 cur in the proposition that though there may be some evidence 
 tending to prove every essential allegation of a plaintiff, the 
 court may properly take the case from the jury and direct a 
 finding for defendant merely because, in the judgment of the 
 court, the evidence in support of some material allegation is not 
 reasonably sufficient in force to sustain a verdict for plaintiff." 
 
 To appreciate the full force of the opinion of the 
 majority of the court in this case, the reader should 
 bear in mind that the cause had once before been 
 tried by jury, a verdict had been rendered in favor of 
 the plaintiff, and that verdict had been approved and 
 a judgment entered thereon by an intelligent circuit 
 judge. This judgment had been reversed and the 
 cause remanded by the Appellate Court of the Second 
 District for a new trial. The opinion of that court in 
 11 Brad. 150, as delivered by Pleasants, J., stated, 
 among other things, the following : 
 
 " It may be that common prudence dictated a different and 
 safer method of operation than the one pursued. Nevertheless 
 
DIRECTING VERDICT OF JURY. 311 
 
 it was the right of the company to do its own business in the 
 way it preferred, though not the safest, — since it was not un- 
 lawful, and did not interfere with any rights of others — as it 
 was of the deceased, in view of the danger, to avoid exposure 
 by quitting the employment when he saw fit. The evidence 
 shows that this danger, in general, as naturally incident to that 
 method, and its imminence at any particular time and place 
 along the line — varying according to the depth of the excava- 
 tion, and weight of matter immediately above it — were alike 
 apparent to all who observed the situation. The attention of 
 the men was expressly called to it by the superintendent and by 
 the foreman. It was a subjeet of common remark among 
 them. 
 
 " The deceased himself spoke of it on different occasions to 
 several of his colaborers, and was neither deceived or coerced 
 into the job, nor into the place he occupied upon it. One 
 witness testified that he heard him ask the foreman if he did 
 not think it dangerous, and that the latter replied he ' thought 
 not, for awhile yet.' But that was an expression of opinion 
 merely, and the event justified it, for although it does not 
 appear how much farther the excavation was carried, the 
 deceased wrought on, and two hours elapsed before the disaster 
 occurred. This circumstance, then, affords no proof that he 
 was deceived, intentionally or actually, but does show that he 
 was noticing the indications with direct reference to the very 
 danger that overtook him, and regarded them even then as 
 questionable. 
 
 " An hour later the same foreman advised the men engaged 
 at the west end of the line to move to places east, and some 
 complied. There is ground to suppose that the deceased may 
 not have heard it, but not through fault of the foreman. He 
 had expressed a preference for that position because it was 
 more sheltered from the wind, and he was suffering from neu- 
 ralgia of the head. 
 
 " Whatever the cause, he remained where he was, and there 
 soon after met his unhappy fate." 
 
 Such being the nature of the evidence it cannot be 
 fairly said that a finding by the jury that the deceased 
 
312 TRIAL BY JURY. 
 
 did not knowingly expose himself to the danger of 
 being killed, would be wholly without evidence tend- 
 ing to support it. It may be that from all the circum- 
 stances of the case, from the degree of intelligence the 
 deceased might be shown to have possessed, the jury 
 would feel themselves justified in the opinion that a 
 man of his character and intelligence, upon being in- 
 formed by the foreman that he did not think it dan- 
 gerous, would act in accordance with the opinion of 
 the foreman rather than upon any apprehension of 
 danger he may have had before receiving such assu- 
 rance, and, in doing so, would not be guilty of a want 
 of the degree of care that should reasonably be ex- 
 pected from such a man. At all events no one would 
 have the hardihood to contend that there was an utter 
 absence of evidence tending to prove the exercise of 
 ordinary care by the deceased, that is, such care as a 
 man of his character, intelligence and circumstances 
 in life would be likely to use under all the circum- 
 stances of the case. The most that any court could 
 say would be that a verdict for the plaintiff under such 
 a state of facts would be so clearly against the weight 
 of the evidence as to require the case to be submitted 
 to another jury. The decision of the court, therefore, 
 when fairly construed, and when considered in con- 
 nection with the ruling in Crowley v. Crowley, supra, 
 that although the circuit judge may violate the con- 
 stitutional right of trial by jury by wrongfully direct- 
 ing a verdict for the defendant, yet the judgment will 
 not be reversed, if the verdict thus obtained appears 
 to the supreme court to be right, amounts to a holding 
 that a circuit judge may direct the verdict of the jury 
 in any case, when, after considering all the evidence, 
 he has formed a decided opinion as to what the verdict 
 should be, provided such opinion is concurred in by 
 the supreme court. The decision is not announced in 
 
DIRECTING VERDICT OF JURY. 313 
 
 exactly those terms, but such will be its necessary 
 consequence if adhered to. It will become the com- 
 mon practice, when the appellate court have reversed 
 a judgment because the verdict is contrary to the evi- 
 dence, to exclude the evidence introduced by the plain- 
 tiff upon the second trial and direct a verdict for the 
 defendant, and thus, in many cases, there will be sub- 
 stituted for a trial by jury, a trial by the. appellate 
 court. That such proceedings should be tolerated 
 in those jurisdictions where the judges are permitted 
 to charge the jury as to the facts is not strange, but 
 that they should be resorted to and approved by the 
 supreme court of a state where judges are forbidden 
 to charge as to the facts is incomprehensible. 
 
 It must, however, be admitted that this method of 
 disposing of a trial by jury is much less objectionable 
 than either of the three methods previously mentioned, 
 and if cautiously used can be productive of very little 
 injustice. A circuit judge sees and hears the witnesses, 
 and enjoys many other advantages for getting at the 
 real merits of a case that are not enjoyed by appellate 
 courts, and it is hardly to be supposed he would exer- 
 cise the power of withdrawing a case from a jury, 
 unless the evidence were of such a character that, 
 when taken as true, with all inferences that a reason- 
 able man might draw therefrom, it would be wholly 
 insufficient to support a verdict. In this view of the 
 matter there can be said to be but one thing remark- 
 able about the Simmons Case, and that is that three 
 of the judges should dissent on the ground that the 
 rule laid down was a violation of the right of trial by 
 jury, when all of them had concurred in holding that, 
 when a verdict was manifestly against the weight of 
 evidence, but yet not wholly without evidence to sup- 
 port it, the judgment might be reversed and the cause 
 not remanded ; that there was no limit to the num- 
 
314 TRIAL BY JURY. 
 
 ber of times the supreme court might reverse judg- 
 ments in the same case, and that the appellate court 
 might reverse the verdict of a jury and enter a con- 
 trary finding of its own which should be absolutely 
 conclusive. In thus dissenting, these three judges 
 violated -that maxim which judges, above all others, 
 should observe : 
 
 "Consistency, thou art a jewel 1" 
 
 The language of the constitution securing to the 
 citizen the right of trial by jury, and the language of 
 the statutes passed in furtherance thereof, when con- 
 strued in the light of repeated decisions of the supreme 
 court, will admit of no other meaning than that, in 
 every action at law where there is evidence tending to 
 prove the issues, the party has the right to the decision 
 of a jury upon the facts, and when the facts have been 
 three times found in the same way, it shall not be in 
 the power of any tribunal to interfere with the finding. 
 The power of the people to prescribe the methods by 
 which the rights of parties shall be ascertained and 
 their wrongs redressed cannot be questioned. They 
 can make courts and they can abolish them. They 
 may declare, as they have declared, that questions of 
 fact shall be determined by a jury, and that, when 
 three times determined in the same way, the justice of 
 such determination shall no longer be questioned or 
 interfered with by any other tribunal, and no court 
 created by the people ought to be permitted to arro- 
 gate to itself the power to declare directly or indirectly 
 that the system of trial by jury, created by the same 
 people and by the same instrument that created the 
 court itself, has failed to accomplish the purpose of its 
 creation, aud practically wipe it out of existence by 
 judicial legislation. If trial by jury produces wrong 
 and injustice, if it fails to accomplish the purpose for 
 
UNJUST VERDICTS AND JUDGMENTS. 315 
 
 which it was created, it is for the people, and for the 
 people alone, to apply the remedy by constitutional 
 amendment. If the people are satisfied that jurors are 
 so prejudiced against railway and other corporations 
 that the administration of justice has become tainted 
 with such prejudice, let them be appealed to for the 
 establishment of some other mode of trial by which 
 justice may be better attained. But until that is done, 
 the courts should enforce the law as it stands. To 
 those who complain of injustice resulting from trial 
 by jury, the answer should be Lex ita scripta est. 
 
 It is said by the court in the Hazzard Case that the 
 citizen has no constitutional right to an unjust verdict. 
 If by that the court mean that the constitution was 
 not intended'to produce unjust verdicts, all will agree 
 to the proposition. If, however, the court mean that 
 the constitution intended that every verdict should be 
 set aside that seemed to the supreme court unjust, 
 the proposition is manifestly and palpably unsound. 
 Where, under our constitution and laws, is lodged the 
 power of finally determining that a verdict, based 
 upon evidence tending to sustain it, is unjust ? Why, 
 clearly in the jury itself that renders the third verdict, 
 and not in the supreme or any other court. The law 
 says that two verdicts may be set aside, but that the 
 third must stand and be conclusively presumed to be 
 just, notwithstanding the contrary opinion of one 
 judge or seven judges. The error of the court arises 
 from a failure to comprehend to what tribunal the 
 constitution and laws have committed the power of 
 finally determining what is and what is not an unjust 
 verdict. The court also overlook the fact that the 
 right of trial by jury was created for the reason, and 
 for no other, that the people did not believe it to be 
 safe to commit the power of deciding causes wholly 
 to one judge or to seven judges ; that they feared the 
 
316 TRIAL BY JURY. 
 
 judge or judges might be unduly influenced or cor-^ 
 rupted, and that without the intervention of a jury an 
 individual of limited means and influence could not be 
 protected against oppression and wrong at the hands 
 of an individual or corporation of great wealth and 
 power ; and so the people, while conceding that twelve 
 jurymen, or twenty-four, might do injustice, and that 
 therefore their verdicts might be set aside by one judge 
 or by seven judges, declared that when thirty-six jury- 
 men concurred in a verdict, it should be conclusively 
 presumed that they were more honest or more capable 
 of determining the merits of a case than any one 
 judge or seven judges who might entertain contrary 
 views. If, then, it be held that every verdict may be 
 annulled whenever the court sees fit to declare it 
 unjust, it follows that the constitutional provision and 
 the laws passed in furtherance thereof can be annulled 
 by the very judges whom they were intended to control. 
 If the citizen has no constitutional right to an 
 unjust verdict, neither has he a constitutional right to 
 an unjust judgment. But who ever heard of an Illinois 
 jury reading the Illinois Eeports and arrogating to 
 themselves the right to set aside judgments which they 
 deemed to be unjust ? Yet a claim of power to do so 
 on their part would be as well founded as the claim of 
 power on the part of the supreme court to reverse a 
 judgment rendered upon a third verdict in favor of the 
 same party in the same cause and base such reversal 
 on the ground that the verdict was contrary to the 
 evidence, or on the part of the appellate court to 
 reverse a judgment entered on the verdict of a jury 
 and enter a verdict and judgment of their own. And 
 there are many people conversant with the decisions 
 of the supreme court who would declare that the 
 occasional exercise by thirty-six jurymen of power to 
 reverse judgments of that court would improve the 
 
CAUSE OF PREJUDICE OP JURORS. 317 
 
 administration of justice. The reasoning of the court 
 is fallacious, for it is based upon the erroneous assump- 
 tion that seven judges can make no mistake, either as 
 to the law or as to the facts, whereas the constitution 
 and laws assume they cannot err as to the law, but may 
 as to the facts, and that thirty-six jurymen may err as 
 to the law, but cannot, when they are unanimously 
 agreed, err as to the facts. 
 
 It must be admitted that juries are, to some extent, 
 prejudiced against rich and powerful railway corpora- 
 tions. But who is to blame for this prejudice ? Is 
 it simply the wealth and power of these corpora- 
 tions that creates it, or is it the manner in which they 
 use that wealth and power ? An individual, however 
 rich and powerful he may be, can almost always obtain 
 fair treatment at the hands of a jury, if, in his inter- 
 course with his fellow men, he shows himself to be 
 honorable and upright, and does not make use of his 
 wealth and power to obtain unjust and unfair advan- 
 tages over his neighbors. But let him become dishonest 
 and overbearing ; let him manifest avarice and greed 
 and a disregard of the rights and the feelings of those 
 less wealthy and powerful, and when he comes before 
 a jury he is very likely to suffer some disadvantages 
 therefrom, even though he be in the right in the case 
 being tried. While this is not strictly in accordance 
 with the intention of human legislation, it is a natural 
 consequence of human nature. The same principle 
 which authorizes a jury to disbelieve a witness whose 
 reputation for truth and veracity is proven to be bad, . 
 is applied by them in passing upon the rights of an 
 individual or corporation whose reputation for honesty 
 and fair dealing they know to be bad. 
 
 It is not to be denied that some of the most power- 
 ful railway corporations do not bear a good reputation 
 for fair dealing with the public. The belief is wide- 
 
318 TRIAL BY JURY. 
 
 spread that, in cases of injuries to persons or property, 
 they either refuse payment of damages altogether, 
 until such payment is compelled by the judgment of 
 the highest tribunal to which they may appeal, or else, 
 taking advantage of their wealth and power, they 
 compel the injured parties to accept payment of less 
 than the amount of damages suffered, rather than seek 
 redress in the courts ; and that they boast, and with 
 good reason, of their success in the supreme court, 
 as a means of inducing the settlement of claims at 
 amounts much less than are actually due, is a matter 
 of common notoriety. Yet these corporations expect 
 that, in all suits brought against them, juries will 
 mete out the same measure of justice that would be 
 meted out in a suit between John Doe and Richard 
 Roe ! Because juries do not always do so, these cor- 
 porations complain of passion and prejudice, and 
 influence the higher courts thereby. Thus it happens 
 that railroad companies are benefited at both ends of 
 the line. By their outcries against the alleged injus- 
 tice done them by juries, they sometimes induce the 
 supreme court to reverse judgments which ought not 
 to be reversed, and by their boasts of success before 
 that tribunal they coerce poor litigants into unjust 
 settlements. 
 
 The question then remains, how shall the right of 
 trial by jury be preserved from destruction ? Obviously 
 the first step necessary to that end is the repeal of the 
 statute permitting the refusal of a new trial to be 
 .assigned for error. Mr. Justice Breese was quite right 
 when, in delivering the opinion of the court in the 
 McKean Case, supra, he said : 
 
 " The policy of this legislative enactment has been, and may- 
 well be, questioned, as it brings before a tribunal, other than a 
 jury, that which, in the institution of trial by jury, was for their 
 determination alone, that is, the facts of a case. An appellate 
 
REVIEW OP FACTS BY APPELLATE COURT. 319 
 
 court was, before the passage of that act, judge of the law 
 only, to decide wherein, in the case brought before it, the rules 
 of law had been misapplied or Tiolated. The old and honored 
 maxim once was, ' the judges respond to the law, the jury to the 
 facts,' but now, by this innovation, the judges of an appellate 
 court have as much power over the facts as the jury had in the 
 first instance, for it is undeniable this court may set aside a 
 verdict, if the facts fail to satisfy it of its propriety." 
 
 The view taken in England of the propriety of a 
 review by an appellate court of the facts in a case, is 
 illustrated by Mr. Justice Stephen, when, in his His- 
 tory of the Criminal Law of England, Vol. I, p. 568, in 
 discussing the comparative merits of a trial by jury 
 and of a trial by a judge without a jury, he says : 
 
 " From the nature of the case there can be no appeal in 
 cases of trial by jury, though there may be a new trial. There 
 can be an appeal where the trial is by a single judge. This may 
 not, at first sight, be obvious, but it is a consequence of the 
 circumstance that a jury cannot give their reasons. An appeal, 
 properly so called, implies a judgment on the part of the court 
 appealed from and an argument to show that it decided wrongly, 
 which cannot be unless the reasons of the decision are known. 
 If an appeal proper lay from the decision of a jury, and if it 
 took the form of a rehearing before a court of judges, trial by 
 jury might as well be abolished." 
 
 There seems to be much force in this position, and 
 the more it is considered the more correct it will 
 appear. The advantages enjoyed by a jury are, more- 
 over, far superior to those of an appellate court for 
 getting at the facts of a case. One of the most strik- 
 ing advantages is that the jury see the witnesses and 
 hear them testify. Two witnesses, when their testi- 
 mony is simply read, may seem equally worthy of 
 credit ; but when that testimony is delivered from the 
 witness-stand in the presence and hearing of the jury, 
 that of one witness might seem vastly more credible 
 
820 TRIAL BY JURY. 
 
 than that of the other ; so that, if jurors were equally 
 as honest and equally as capable as judges of an appel- 
 late court, the verdict of the jury would be infinitely 
 more reliable than the contrary finding of the court. 
 It is quite true that in adjudged cases we find it 
 frequently stated that, owing to the superior facilities 
 of the jury and circuit judge for getting at the facts, 
 the appellate tribunal will not set aside a verdict unless 
 it is clearly and manifestly against the evidence ; but 
 it is susceptible of demonstration that this rule is 
 almost wholly disregarded, and that verdicts are set 
 aside or sustained whenever the appellate courts, upon 
 reading the evidence, arrive at conclusions contrary to 
 or the same as those of the juries, and that really no 
 weight is attached to the opinion of the jury or of the 
 circuit judge who approves their verdict. 
 
 It is not now proposed to compare the respective 
 honesty of jurors and appellate judges. It will be 
 assumed that they are equally honest, though there 
 may of course be dishonesty both in the jury-box and 
 upon the bench. But it is proposed to briefly compare 
 the capabilities of judges and jurymen for doing justice 
 between individuals and railroad companies. Their 
 capacity for determining the credibility of witnesses 
 will first be discussed. 
 
 In St. L., A. & T. H. R. R. Co. v. Manly, 58 111. 309, 
 Mr. Justice Scott, in delivering the opinion of the 
 court, says : 
 
 " We can see no reason for disregarding the evidence of the 
 engineer and fireman, and they both testify the bell was rung 
 and the whistle sounded at the usual distance before reach- 
 ing the crossing. The fact that the appellee did not hear the 
 signals by no means proves they were not given. After the 
 accident occurred, the train was stopped, and it was very natural 
 to suppose the events made a very deep impression on the mind. 
 It was the duty of the engineer and fireman to give the usual 
 
JUDGES AND JURORS COMPARED. 321 
 
 signals, and the events were such they would certainly remem- 
 ber whether the signals had been given. When in the presence 
 of the dead, they must have remembered whether they gave 
 the usual signals just a few moments before, and if so, no lapse 
 of time would efface it from their recollection. It is true, then, 
 the usual signals were given, or else these witnesses have delib- 
 erately sworn to falsehoods. It is not possible for them, under 
 the circumstances, to have been mistaken. 
 
 " As a general rule, it is true, the jury are the judges of the 
 credibility of the witnesses, but they cannot capriciously disre- 
 gard the testimony of an unimpeached witness simply because 
 they desire so to do, or because, under the peculiar facts of the 
 case, they may desire to find a verdict against his testimony. It 
 is the duty of the jury to try the case according to the evidence, 
 and their verdict should be a just conclusion from all the evi- 
 dence. We know from common observation it is exceedingly 
 difficult for a jury, in a certain class of cases, to observe this 
 rule with fidelity. There is a class of cases where the evidence 
 touches and awakens the sympathies, and it is exceedingly diffi- 
 cult for the juror to exercise that clear and deliberate judgment 
 that ought to characterize all judicial investigations. We con- 
 ceive this to be one of that class of cases. However much the 
 recital of the injuries and misfortunes sustained by the appellee 
 may touch our sympathy, it affords no just reason for disregard- 
 ing the well-settled principles of the law." 
 
 One of the well-settled principles of law referred 
 to by the court would seem, from this opinion, to be 
 that, although the jury are the judges of the credi- 
 bility of the witnesses and of the weight to be given to 
 their testimony, they are not authorized to say from 
 the appearance of the witnesses upon the witness- 
 stand and their manner of testifying, judged in the 
 light of common observation and experience, that a 
 person injured at a railroad crossing and testifying 
 that he did not hear a bell rung or whistle sounded, 
 and that therefore none was rung or sounded, is more 
 worthy of credit than the engineer and fireman' of the 
 train which caused the injury. The supreme court 
 
322 TEIAL BY JURY. 
 
 neither saw nor heard the appellee, the fireman or the 
 engineer testify, but simply read their testimony from 
 a printed abstract ; and yet they, in effect, undertake 
 to say that no matter what may have been their 
 appearance upon the witness-stand, or their manner 
 of testifying, the jury were bound to believe the fire- 
 man and engineer rather than the appellee. Because 
 it was their duty to give the signals, and because, 
 when in the presence of the dead boy, they must have 
 remembered whether they did do so, and because, 
 unless the signals were given, these witnesses must 
 have deliberately sworn to falsehoods, therefore the 
 jury were' bound to believe them unless they were 
 successfully impeached, which, in all probability, could 
 only be done by showing that their reputations for 
 truth and veracity were bad in the neighborhoods where 
 they resided. Such is the reasoning of the court, and 
 the views thus announced must account in part for 
 the fact stated in the first chapter, that, out of seven- 
 teen verdicts rendered against the defendants by juries 
 aud approved by circuit judges in actions against the 
 four leading railroad companies for injuries at railroad 
 crossings, sixteen have been annulled, and but one has 
 been approved, by the supreme court, and even then 
 the learned judge who delivered the opinion in the 
 Manly Case, supra, dissented, although the case had 
 been twice before reversed. 
 
 It is manifest that under such rulings as the above, 
 the bringing of suits for damages against railroad 
 companies for injuries at crossings may as well be 
 abandoned. The employes of the company upon the 
 train inflicting the injury will almost always out- 
 number the party injured and those who may accom- 
 pany or be near him, and hence no case can be made 
 which will stand the test applied by the reviewing 
 court. 
 
JUDGES AND JURORS COMPARED. 323 
 
 But how do juries look at such cases ? They call 
 to their aid their common observation and experience, 
 which tells them that engineers and firemen always 
 testify, in such suits, that the bell was rung and the 
 whistle sounded, and go even further and declare that 
 they never omit to perform that duty when approach- 
 ing crossings, whereas some one or more of the jury- 
 men have frequently observed trains cross public 
 highways without ringing bell or sounding whistle. 
 Furthermore, they reason that, should an engineer or 
 fireman, in such a case, admit a neglect on his part to 
 ring the bell or sound the whistle, he would in all 
 probability be immediately discharged by the corpo- 
 ration which employed him, and would experience 
 great difficulty in securing employment elsewhere, and 
 that this circumstance should affect his credibility. 
 Again, they reason that an engineer or fireman, whose 
 train had been the means of causing the death of a 
 human being, would be most reluctant to admit that 
 his, the engineer's or fireman's, neglect of duty had 
 been the real cause of such death. Finally, they con- 
 clude that the ringing of the bell and the sounding of 
 the whistle become to an engineer or fireman, after a 
 time, a merely mechanical operation, which leaves no 
 impression upon his mind, and that he is therefore not 
 so apt to notice an omission of the duty as another 
 would be, to whom it was an unusual occurrence. For 
 all these reasons jurors place but little confidence in 
 such testimony. They regard it, and with manifest 
 propriety, in much the same light as they would regard 
 the testimony of a defendant in a criminal case. 
 
 On the other hand, in weighing the testimony of 
 the party injured, the jury reason that, as but few men 
 will voluntarily and knowingly rush into danger, the 
 very fact of his incurring such danger is strong evi- 
 dence that he heard no warning, and, when supported 
 
324 TRIAL BY JURY. 
 
 by a statement under oath that he did not hear it, has 
 great weight with them. They further reason that 
 the fact that the signal was not heard is strong evi- 
 dence it was not given at all, or not properly given. 
 The very purpose of giving signals is to have them 
 heard and heeded, and that purpose, which is the pur- 
 pose of the law, is not accomplished when they are 
 not heard by a man whose faculties of hearing are 
 unimpaired. 
 
 Which method of reasoning is the best, that of the 
 court or that of the jury ? Railroad lawyers and the 
 stockholders and directors whom they represent, and 
 the higher courts, may say the former, but probably 
 all the rest of mankind would say the latter ; and as 
 all the rest of mankind comprise at least ninety-nine 
 hundredths of the people, their views ought to be 
 regarded as sound, especially in a country where the 
 large majority, and not an insignificant minority, is 
 supposed to rule. It is not true, either as a matter of 
 law or as a matter of common sense, that a jury may 
 not properly believe a person who is injured, in prefer- 
 ence to an engineer or a fireman who are charged with 
 inflicting the injury. Even in criminal cases where 
 the defendant is entitled to the benefit of -every rea- 
 sonable doubt, it has never been held that a jury is 
 bound to believe two defendants in preference to one 
 prosecuting witness, nor is there anything in their 
 decisions in criminal cases, that would lead us to 
 believe the supreme court would hesitate to affirm a 
 judgment of conviction in a capital case, because the 
 jury believed one witness in preference to two defend- 
 ants, if the proceedings were in all other respects 
 regular, or were reasonably so. 
 
 The capacity of court and jury for determining 
 what constitutes negligence will next be considered. 
 The cases which best serve to illustrate this point are 
 
JUDGES AND JUROES COMPARED. 325 
 
 railroad-crossing cases, in almost all of which the 
 supreme court, when they had power to review the 
 facts, laid down the rule that a failure of the party 
 injured to look up and down the track before crossing, 
 was negligence, and in some of the cases this was laid 
 down as a proposition of law. 
 
 In the Manly Case, supra, it appeared that the 
 injured party on approaching the crossing had his 
 mind engrossed in business and was in a great hurry 
 to accomplish his errand, and, furthermore, his atten- 
 tion was directed to a load of hay tipping over in the 
 opposite direction from the approaching train. The 
 court, therefore, expressed the opinion that he did not 
 exercise ordinary care because he did not look in the 
 direction of the approaching train. 
 
 In the Van Patten Case, 74 111. 93, Mr. Justice Sehol- 
 field, in delivering the opinion of the court, says : 
 
 " The intestate did not look in the direction from which the 
 train was coming, but kept his head averted, looking in an oppo- 
 site direction, apparently at some persons who were driving hogs, 
 and without checking or attempting to check his team, and thus 
 drove on the track and was struck by the advancing engine. So 
 far as we have been able to discover, there was no controversy 
 in this respect. His conduct, therefore, was clearly and unques- 
 tionably negligent." 
 
 In the Dimmick Case, 96 111. 42, it appeared that the 
 deceased and one James Doyle were riding on an 
 empty hay-rack on a wagon, sitting with their faces to- 
 ward the east, when the train came from the west. 
 It further appeared that the regular train had just 
 passed, and deceased knew it, and the train which col- 
 lided with him was an " extra train." The evidence 
 tended to show, and the jury found specially, that no 
 bell was rung or whistle sounded. Yet the court de- 
 clared it had often been decided that it was the duty 
 of a person about to cross a railroad track to look and 
 
326 TRIAL BY JURY. 
 
 listen for an approaching train, and that it was negli- 
 gence to omit that duty, and reversed the judgment 
 because two of plaintiff's instructions told the jury the 
 law in substantially the language of the statute, and 
 one did not state the doctrine of comparative negli- 
 gence in accordance with the latest variation of the 
 court, notwithstanding thirty-three instructions were 
 given for the defendant, which, according to the dis- 
 senting opinion of Mr. Justice Scott, stated "the law 
 in almost every conceivable way as the defendant con- 
 tends it is." 
 
 In the Goddard Case, 72 111. 568, where the negli- 
 gence relied on by plaintiff was a failure to ring a bell 
 or sound a whistle, the court reversed the judgment for 
 the refusal of the court below to give for defendant, 
 among others, an instruction that " it is the duty of 
 every person, when going upon or across a railroad 
 track, to look in each direction, to see if cars are ap- 
 proaching, and a failure to do so amounts to a want of 
 ordinary care." 
 
 Other similar cases might be mentioned, but the 
 above are sufficient for present purposes. They indi- 
 cate that the rules applied by the court in determining 
 the question of the negligence of the injured party 
 are such as to in fact demand of the individual ap- 
 proaching a. crossing the exercise of the highest degree 
 of care, such care as would always avoid injury at such 
 a place, no matter what might be the recklessness of 
 the railroad company. According to their views it is 
 negligence in an individual to permit his attention to 
 be distracted by the tipping over of a load of hay, or 
 by a drove of hogs, or to permit himself to be lulled 
 into security by the fact that a regular train has just 
 passed. Any such negligence on his part is regarded 
 as sufficient to excuse a railroad company from the 
 performance of the statutory duty of ringing a bell or 
 
JUDGES AND JURORS COMPARED. 327 
 
 sounding a whistle. "When to these cases we add those 
 which hold it to be negligence in a mother to permit 
 a little child to escape from the house while she is en- 
 gaged in bathing the father's head, and which hold that 
 a little girl seven and one-half years old and a boy only 
 nine years old, can be guilty of such contributory neg- 
 ligence as to excuse a railroad company for driving its 
 engines of death and destruction over the streets of a 
 populous city, without using even ordinary care to 
 avoid inflicting injury upon others, we are enabled to 
 form a very clear and just estimate of the capacity of 
 the highest court of the state for deciding questions of 
 negligence as justice and a sound public policy demand 
 they should be decided. 
 
 The views thus expressed do not compare favorably 
 with those announced by the Supreme Court of the Uni- 
 ted States in Continental Improvement Company v. 
 Stead, 95 U. S. 162, where Mr. Justice Bradley, in de- 
 livering the opinion of the court, among othej things, 
 says : 
 
 " Another instruction asked for was as follows : 
 " ' It is the duty of everyone approaching with his wagon 
 and teatn along a highway to the crossing of a steam railroad 
 to listen and to look both ways along the railroad before going 
 upon it. If, by reason of the character of the ground or other 
 obstructions, or if by reason of a defect in his sense of sight or 
 of hearing, he cannot determine with certainty whether or not 
 a train of cars is approaching, without stopping, and, if neces- 
 sary, going in advance of his team to examine, it is his duty 
 to do so. If in such case he goes upon the track without taking 
 such precaution, he does so at his own peril, and cannot recover 
 if injury results. 1 
 
 " Here is no assumption of facts as in the previous instruc- 
 tion ; but it states the duty of persons approaching a railroad 
 with wagons and teams in a more absolute and unqualified form 
 than we think admissible. It states such duty with the rigidity 
 of a statute, making no allowance for modifying circumstances, 
 
328 TRIAL BY JURY. 
 
 of for accidental diversion of the attention, to which the most 
 prudent and careful are sometimes subject ; and assuming, in 
 effect, that the duty of avoiding collision lies -wholly, or nearly 
 so, on one side. We think that the qualified form in which the 
 duty of travelers on highways, in approaching a railroad, was 
 stated by the judge in his charge, as applicable to the evidence 
 and circumstances of this case, was all that could be justly 
 required by the defendant." 
 
 Now let us consider the methods of reasoning 
 adopted by jurors. While it is true that men some- 
 times get upon juries who are wanting in the statutory 
 qualifications, yet as a rule juries are composed, in 
 part, at least, of men of good common sense and who 
 have had practical experience in the affairs of life. 
 Many of them know that in large cities crossings are 
 provided with gates, or at least with flagmen, and fre- 
 quently men get into the jury box who know that all 
 European governments, realizing the dangers incident 
 to the tunning of railroad trains over public streets 
 and thoroughfares, and that few people are capable of 
 exercising the highest degree of care, and many not 
 even capable of ordinary care, and that those who 
 operate these engines of destruction ought to be re- 
 quired to use the highest degree of care to avoid injury 
 to others, have, in pursuance of a sound public policy 
 and in obedience to the dictates of common humanity, 
 required gates to be placed at every crossing, whether 
 it be in a city or village or in the country outside of 
 cities and villages. Seasoning from these facts jurors 
 cannot form any other conclusion than that, when ho 
 gates are provided at a crossing, a failure to ring a 
 bell or sound a whistle is of itself necessarily gross neg- 
 ligence — an utterly reckless disregard of the rights and 
 of the safety of the public. On the other hand, they rea- 
 son that all men are not capable of exercising the high- 
 est degree of care, and that even very prudent men are 
 
REVIEW OF FACTS BY APPELLATE COURTS. 329 
 
 sometimes inattentive, especially when engrossed in 
 thoughts about their business or other affairs, that a 
 great many men would be likely to have their atten- 
 tion distracted by the tipping over of a load of hay, 
 or by the passing of a drove of hogs, or to be lulled 
 into security by the fact that the regular train had just 
 passed. Moreover, to argue to them that a mother is 
 negligent, if her child escapes while she is bathing her 
 husband's head, or that a little girl seven and a half 
 years old, or a boy nine years old, can be chargeable 
 with such contributory negligence as to exeuse the 
 want of even ordinary care on the part of a railroad 
 company, is to so shock their sense of justice as to 
 cause them, perhaps, to inflict punitory damages. 
 
 If these statements of the methods of reasoning of 
 the court and of the jury are fairly made, and they are 
 certainly so intended, there would seem to be but lit- 
 tle difficulty in determining which tribunal is best 
 capable of properly deciding the facts of a case in an 
 action for negligence. The decision must be in favor 
 of the jury for two reasons : First, because their facil- 
 ities for determining the facts in a case are far supe- 
 rior to those of an appellate court. Second, because 
 they have a better appreciation than the reviewing 
 court of the care which law, humanity and justice de- 
 mand of an individual injured, and of the railroad 
 company inflicting injury upon him. For these rea- 
 sons, if for no other, the facts in a case and the find- 
 ing of the jury thereon, should be subject to review 
 only by the judge who presides at the trial, and never 
 by an appellate court. 
 
 There is, however, another reason why appellate 
 courts should not be permitted to review the facts, and 
 why no bill of exceptions should embody the evidence 
 introduced upon the trial, and that is, that such a 
 practice would tend, as it has tended, to create special 
 
330 TEIAL BY JURY. 
 
 rules of law for each particular case, instead of gen- 
 eral and fixed rules for all cases involving the same 
 questions. It is impossible to consider the vast num- 
 ber of conflicting, technical and hair-splitting decisions 
 on points of law found in the reports of the higher 
 courts of this state, without one's coming to the con- 
 clusion that the actual ground of the reversal of a 
 multitude of judgments has been the opinion on the 
 part of the court that the verdicts were contrary to 
 the evidence, and that the points of law decided were 
 merely made the pretexts of such reversals. Such a 
 practice must necessarily ruin any system of jurispru- 
 dence, and that it has practically ruined ours can 
 hardly admit of dispute. 
 
 Bills of exceptions should, in the state courts, as 
 they do in the United States courts, contain simply a 
 statement of what the evidence tended to prove, suffi- 
 cient to enable the reviewing court to properly deter- 
 mine the principles of law applicable to the case. If 
 a judge and jury in a United States court are capable 
 of finally determining the facts in a case involving 
 many thousands of dollars, no just reason is perceived 
 why an Illinois circuit judge and jury should not be 
 deemed capable of finally determining the facts in a 
 case involving the killing of a cow, or even the inflic- 
 tion of a greater injury, by a railroad company. 
 
 Were such the law the appellate and supreme courts 
 would have ample time to properly consider and de- 
 cide the questions of law that would be submitted 
 to them, and after a few years a circuit judge might, 
 by the aid of properly considered decisions of the 
 higher courts, attain such a degree of learning and 
 skill as to justify the expectation that not more than 
 one out of two of his judgments against railroad com- 
 panies would be reversed. 
 
REVIEW OF FACTS BY APPELLATE COURTS. 331 
 
 Add to this a strict adherence to the statute that no 
 more than two new trials shall be granted to the same 
 party in the same cause, and a prohibition against 
 directing a verdict for defendant when the evidence, 
 reasonably and fairly construed, tends to prove all the 
 material allegations of the plaintiff's declaration, and 
 the institution of trial by jury would become an use- 
 ful one and would stand as a complete protection to 
 the people against encroachments upon their rights 
 by powerful railway corporations. Under such a sys- 
 tem, it would be to the interest of these corporations 
 to deal fairly with the public, for the purpose, if for 
 no other, of securing fair treatment at the hands of 
 juries. As matters now stand, it is to their interest 
 to act in defiance of the rights of the public, create 
 prejudice resulting in unjust verdicts, and induce the 
 higher courts to reverse nearly all the judgments ren- 
 dered against them on the ground that these judgments 
 are the result of passion and prejudice. 
 
 With respect to this branch of jurisprudence, the 
 people of this country are divided into two parties, 
 one being composed of those whose interests or whose 
 sympathies are with corporations and who fear injus- 
 tice at the hands of jurors, and the other being com- 
 posed of those whose interests or whose sympathies 
 are with the individual citizen and who fear injustice 
 at the hands of judges. Between these two parties there 
 will always be more or less of a conflict of opinion and 
 interest, and no system can be devised which will fully 
 satisfy both. To place the corporation wholly at the 
 mercy of the jury, would subject it to many unjust 
 verdicts, and to place the individual citizen wholly in 
 the power of the judge, would subject him, to many 
 unjust judgments. The situation has been fully appre- 
 ciated by the managers of corporations, and they have, 
 in some states, successfully used their endeavors to 
 
332 TRIAL BY JURY. 
 
 restrict the powers of the jury and enlarge those of 
 the judges, until, in some courts, the jury do little 
 more, in the majority of cases,, than to render the 
 verdict dictated by the judge. In other states, and 
 particularly in this state, they have, while preserving 
 to the individual apparently the right of trial by jury, 
 rendered such a trial an instrument of the grossest 
 oppression, such as, in most cases, to crush out the 
 poor litigants who present claims against them. This 
 has been accomplished by the introduction into our 
 law of so much technicality as to render it impossible, 
 in a large majority of cases, for the circuit courts to 
 so conduct trials as to avoid infraction of some one or 
 more of the conflicting and hair-splitting rulings of 
 the appellate courts. The result is repeated reversals 
 of judgments that are just, and the infliction upon 
 poor litigants of costs, amounting, m many cases, to 
 more than the sums in controversy. In brief, trial by 
 jury in this state has been reduced to a farce. It will 
 continue to be a farce so long as appellate courts are 
 permitted to review the findings of the trial courts as . 
 to the facts. 
 
CHAPTER YIL 
 
 INSTRUCTING THE JURY. 
 
 The practice of instructing juries in writing was 
 
 introduced into the courts of this state by the act 
 
 entitled "An Act to amend the Practice Act," approved 
 
 . February 25, 1847. The first three sections of that act 
 
 were as follows : 
 
 " § 1. Be it enacted by the People of the State of Illinois, 
 represented in the General Assembly, That hereafter no judge 
 of the circuit court shall instruct the petit jury in any case, 
 civil or criminal, unless such instructions are reduced to writing. 
 
 "§2. And when instructions are asked which the judge 
 cannot give, he shall, on the margin thereof, write the word 
 'refused 1 ; and such as he approves he shall write on the 
 margin thereof the word 'given,' and he shall in no case, after 
 instructions are given, orally qualify, modify, or in any manner 
 explain the same to the jury. 
 
 "§3. And such instructions, so given, shall be taken by 
 the jury in they: retirement, and returned by them, with their 
 verdict, into court." 
 
 The cause of the enactment of this statute was the 
 
 dishonesty, or alleged dishonesty, of the judiciary. 
 
 There had been, prior to that time, as was claimed, 
 
 circuit judges, who, when called upon to sign bills of 
 
 exceptions, insisted upon inserting in them statements 
 
 not made to the jury in the charges, and refused to 
 
 insert those which actually were made. It was for the 
 
 purpose of circumventing this species of judicial fraud 
 
 that the act was passed, and it might with propriety 
 
 333 
 
334 INSTRUCTING THE JURY. 
 
 have been entitled "An Act for the Prevention of 
 Frauds and Perjuries of Circuit Judges." 
 
 This act, and others similar to it, have been recog- 
 nized as valid by the supreme court, in a large number 
 of cases. One of the first questions that arose after 
 the first act was passed was, whether the court had 
 the lawful right to modify and give, as modified, 
 instructions offered by the parties. This was decided 
 in Brown v. The People, 4 Gilm. 441, in which Mr. Jus- 
 tice Koerner, in delivering the opinion of the court, 
 says: 
 
 "Another error assigned is, that the court erred in modifying 
 two of the defendant's instructions, and in not giving them 
 in the terms asked. There is no force in this objection, as 
 the law of the last session (1846-7), does not inhibit the court 
 from giving instructions as to the law of the case, such as he 
 thinks proper, and conducive i o justice, without their being asked, 
 provided such instructions are given in writing. Any other 
 construction of that law is not warranted by its language, or 
 consonant with sound sense. If the instructions of the court, 
 or the modification of those asked for by the counsel, contain sub- 
 stantially the law applicable to the case, and asked for by counsel, 
 the objects of justice are obtained, and the party has no right 
 to complain. The same v^iew has been expressed in a case 
 decided at this term. Vanlandingham v. Huston {ante, 125). 
 It does not appear from the record, that the instructions given 
 by the court were not reduced to writing." 
 
 Again, in G. & C. TJ. R. R. Co. v. Jacobs, 20 111. 488, 
 Mr. Justice Breese, in delivering the opinion of the 
 court, says : 
 
 "A court does not sit to see injustice done, or to permit 
 it, nor is it restricted, in communicating with the jury, to the 
 instructions asked on either side. It is the province of the 
 court— their undisputed realm, in which to exert to the fullest 
 extent this power — to impart instructions as to the law of 
 the case, on the facts as the jury may find them to exist, and for 
 
CONSTRUCTION OF STATUTE. 335 
 
 that purpose, supply, by its own suggestions, any omission 
 or want of observation of the counsel." 
 
 The same ruling was made in Stumps v. Kelley, 22 
 111. 142, in which Mr. Justice Walker, in delivering the 
 opinion of the court, says : 
 
 "Courts are created and established for the administration 
 of justice, and all legal and proper means should be employed 
 for the attainment of that end. And how it can be error for 
 the court to instruct the jury as to the law of the case, whether 
 asked to do so or not, we are at a loss to conjecture. We have 
 been referred to no authority that so holds, and we cannot 
 imagine that such can exist. One of the very objects of having 
 a judge is to instruct the jury on the law applicable to the case. 
 Instead of its being error for the court on its own motion to 
 instruct, where it seems to be required by the justice of the case, 
 it is rather the duty of the judge to give such instructions. 
 The instructions given by the court in this case, without being 
 requested by either party, we think, embrace the law as applicable 
 to the case, and it is not denied that it does, and we have 
 no hesitation in saying that so far from its being error, that the 
 court acted in strict conformity with the duty imposed by the 
 oath of the judge, and the requirements of the law." 
 
 In Eay v. Wooters, 19 111. 82, the question arose as 
 to the consequences of oral qualifications by the court 
 of written instructions, and with reference thereto Mr. 
 Justice Skinner, in delivering the opinion of the court, 
 says : 
 
 "The court, after giving, at the instance of the defendant 
 below, several instructions in writing, as the bill of exceptions 
 states, ' proceeded orally to explain and qualify said instructions 
 to the jury.' The statute provides: 'That hereafter no judge 
 of the circuit court shall instruct the petit jury, in any case, 
 civil or criminal, unless such instructions are reduced to writing,' 
 <fc. — 'and he shall in no case, after instructions are given, orally 
 qualify, modify, or in any manner explain the same to the jury.' 
 Statutes 1856, 829. 
 
336 INSTRUCTING THE JURY. 
 
 " This statute plainly inhibits the circuit courts from changing 
 or in any measure affecting orally the law as stated in written 
 instructions given; and in a case of so clear intention of the 
 law-making power, there is no room by construction to avoid 
 consequences, however inconvenient in practice or detrimental 
 to the administration of justice. 
 
 " The law being so written, the courts must submit to and 
 abide the' mandate, and trust to the wisdom of the legislature 
 for such change as experience may suggest. It is true, it does 
 not appear what the oral explanations and qualifications were; 
 yet the words import a modification, limitation, restriction or 
 construction of the written instructions, and, therefore, a change 
 in some degree of the law as stated in writing. This is plainly 
 forbidden. 
 
 "We presume the court did not intend, without consent 
 of the parties, in any material matter of law, to orally instruct 
 the jury; but from the language of the bill of exceptions, we 
 can treat the case only in the light before stated; although 
 upon the argument it is conceded that the explanations so orally 
 given were in fact immaterial. ' 
 
 "Judgment reversed and cause remanded." 
 
 That it is obligatory on the court to mark all in- 
 structions "refused " or "given " was held in Kepperly 
 v. Ramsden, 83 111. 359, in which Mr. Justice Scott, in 
 delivering the opinion of the court, says : 
 
 " Near the close of the final argument to the jury, and after 
 the other instructions had been passed upon, defendant's counsel 
 asked the eourt to instruct against the effect of what he says 
 was an unwarrantable attack on the character of some of the 
 witnesses, and denunciation of defendant for calling such wit- 
 nesses. The court neither marked the instruction on this 
 subject 'refused' or 'given,' but simply marked it 'not passed 
 on.' Unless the alleged offensive language was embodied in the 
 bill of exceptions, we cannot know whether it would have been 
 proper to give the instruction. But the better practice would 
 be for the court in the first instance to restrain all unwarranted 
 attacks on the characters of witnesses and on the motives of 
 parties. It is obligatory on the court to mark all instructions 
 
CONSTRUCTION OF STATUTE. 337 
 
 asked either * refused ' or ' given ' ; and it is believed a rule of 
 court that would relieve the judge from that duty in his discre- 
 tion, would be in contravention of the statute declaring the 
 duty." 
 
 la Manrose v. Parker, 90 111. 581, it appeared that 
 the court below had added to instructions offered 
 certain qualifications to each of which were prefixed 
 the words "qualification by the court." Of this Mr. 
 Justice Sheldon, in delivering the opinion of the court, 
 says : 
 
 " Objection is taken to the prefix by the court to the modifi- 
 cation of the words ' qualification by the court.' It was not 
 necessary that the instructions should show what modification 
 of them was made by the court, and those words should have 
 been omitted. 
 
 " But we cannot see that the insertion of them here was 
 so calculated to influence the verdict as to make it material error/' 
 
 The effect of the neglect of the trial court to mark 
 instructions "given" or "refused" was discussed in 
 Cook v. Hunt, 24 111. 550, in which Mr. Justice Breese, 
 in delivering the opinion of the court, says : 
 
 " As to those which the court neglected to mark as ' given ' 
 or ' refused,' as the statute requires, we have to say this statute 
 is directory to the court, and should be obeyed; but if, in the 
 hurry of business, it should not be, a party who is not in fault 
 should not be prejudiced by it, if the record shows what was 
 done with the instructions. If the law is correctly laid down in 
 them, we do not think a court would be justified in reversing a 
 judgment, because they were not marked given." 
 
 After nearly forty years 'acquiesence in and appro- 
 val of these statutes, it is scarcely to be hoped they will 
 ever be declared void. Yet it may not be out of place 
 to briefly inquire whether the constitution confers 
 upon the legislature the power to pass laws of such a 
 character. 
 
338 INSTRUCTING THE JURY. 
 
 The question how far the legislature may go in 
 regulating the courts was discussed in Houston v. Will- 
 iams, 13 Cal. 24, where Mr. Justice Field, in deliver- 
 ing the opinion of the court, says : 
 
 "At the present term, the judgment in this case was re- 
 versed, without any opinion being given setting forth the rea- 
 sons for the reversal. The appellant now moves the court to 
 file an opinion, and cites section 69 of the statute of May 15, 
 1854, amending the Practice Act, which provides that 'all decis- 
 ions given upon an appeal, in any appellate court of this state, 
 stall be given in writing with the reason therefor, and filed 
 with the clerk of the court,' except in cases tried in the county 
 court on appeal from a justice's court. The provisions of the 
 statute had not been overlooked when the decision was rendered. 
 It is but one of many provisions embodied in different statutes, 
 by which control over the judiciary department of the govern- 
 ment has been attempted by legislation. To accede to it any 
 obligatory force, would be to sanction a most palpable encroach- 
 ment upon the independence of this department. If the power 
 of the legislature to prescribe the mode and manner in which 
 the judiciary shall discharge their official duties be once recog- 
 nized, there will be no limit to the dependence of the latter. If 
 the legislature can require the reasons of our decisions to be 
 stated in writing, it can forbid their statement in writing and 
 enforce their oral announcement, or prescribe the paper upon 
 which they shall be written, and the ink which shall be used ; 
 and yet no sane man will justify any such absurd pretension ; 
 but where is the limit to this power, if its exercise, in any par- 
 ticular, be admitted? 
 
 ',' The truth is, no such power can exist in the legislative 
 department, or be sanctioned by any court which has the least 
 respect for its own dignity and independence. In its own sphere 
 of duties, this court cannot be trammelled by any legislative re- 
 strictions. Its constitutional duty is discharged by the rendi- 
 tion of decisions." 
 
 The Supreme Court of the United States had occa- 
 sion to touch upon this question in Nudd v. Burrows, 
 
CONSTITUTIONALITY OP STATUTE. 339 
 
 91 U. S. 441. That was a writ of error to the circuit 
 court of the United States for the Northern District of 
 Illinois. Upon the trial in the court below, the coun- 
 sel for the defendant requested that the court, in 
 charging the jury, would in all respects be governed 
 by and follow the practice of courts of record of the 
 State of Illinois, which the court refused to do, and it 
 was insisted that this was error, because the act of 
 Congress of June 1, 1872, declared "that the practice, 
 pleadings, and forms and modes of proceeding in civil 
 causes, other than equity and admiralty causes, in the 
 circuit and district courts, shall conform as near as 
 may be " to the same things " existing at the time in 
 the courts of record of the state within which such 
 circuit and district courts are held." Upon this point 
 Mr. Justice Swayne, in delivering the opinion of the 
 court, says : 
 
 "The purpose of the provision is apparent upon its face. 
 No analysis is necessary to reach it. It was to bring about uni- 
 formity in the law of procedure in the federal and state courts 
 of the same locality. It had its origin in the code enactments 
 of many of the states. While in the federal tribunals the com- 
 mon law pleadings, forms and practice were adhered to, in the 
 state courts of the same district the simpler forms of the local 
 code prevailed. . This involved the necessity on the part of the 
 bar of studying two distinct systems of remedial law, and of 
 practicing according to the wholly dissimilar requirements of 
 both. The inconvenience of such a state of things is obvious. 
 The evil was a serious one. It was the aim of the provision in 
 question to remove it. This was done by bringing about the 
 conformity in the courts of the United States, which it pre- 
 scribes. The remedy was complete. The personal administra- 
 tion by the judge of his duties while sitting upon the bench was 
 not complained of. No one objected, or sought a remedy in 
 that direction. We see nothing in the act to warrant the con- 
 clusion that it was intended to have such an application. 
 
340 INSTRUCTING THE JURY. 
 
 " If the proposition of the counsel for the plaintiff in error 
 be correct, the powers of the judge, as denned by the common 
 law, were largely trenched upon. A statute claimed to work 
 this effect must be strictly construed. But no severity of con- 
 struction is necessary to harmonize the language employed with 
 the view we have expressed. The identity required is to be in ' the 
 practice, pleadings, and forms and modes of proceeding.' The 
 personal conduct and administration of the judge in the dis- 
 charge' of his separate functions is, in our judgment, neither 
 practice, pleading, nor a form nor mode of proceeding within 
 the meaning of those terms as found in the context. The sub- 
 ject of these exceptions is, therefore, not within the act, as we 
 understand it. 
 
 "There are certain powers inherent in the judicial office. 
 How far the legislative department of the government can im- 
 pair them or dictate the manner of their exercise, are interest- 
 ing questions, but it is unnecessary in this case to consider 
 them. Houston v. Williams, 13 Cal. 24." 
 
 This language amounts to a very strong intimation 
 that the charging of the jury is one of the powers in- 
 herent in the judicial office, and that if Congress should 
 assume to pass a law requiring the circuit courts to 
 instruct the jury only in writing, to mark on the mar- 
 gin of every instruction offered the word "given" or 
 "refused," and allow the written instructions to "be 
 taken by the jury in their retirement, and returned by 
 them, with their verdict, into court," the supreme 
 court would promptly declare it to be unconstitu- 
 tional. 2? he provisions of the constitution of the United 
 States defining the powers and duties of the legisla- 
 tive and judicial departments of the government, so 
 far as they relate to the right of one department to 
 exercise control over the other, are not materially 
 different from those of the constitution of the State of 
 Illinois. The legislative powers of the United States 
 are vested in a congress, and the judicial powers "in 
 one supreme court, and in such inferior courts as the 
 
CONSTITUTIONALITY OP STATUTE. 341 
 
 congress may, from time to time, ordain and estab- 
 lish," and power is given to the congress to make all 
 laws which shall be necessary and proper for carrying 
 into execution its own powers, and all other powers 
 vested by the constitution in the government of the 
 United States, or in any department or officer thereof. 
 By the constitution of Illinois the legislative power is 
 vested in the general assembly and the judicial power 
 in the supreme court, circuit courts, county courts, 
 justices of the peace, police magistrates, and in such 
 courts as may be created by law in and for cities and 
 incorporated towns, and provision is also made for the 
 creation of appellate and probate courts. It is also 
 provided, in § 29 of Article VI, as follows: 
 
 " All judicial officers shall be commissioned by the governor. 
 All laws relating to courts shall be general, and of uniform 
 operation; and the organization, jurisdiction, powers, proceedings 
 and practice of all courts, of the same class or grade, so far as 
 regulated by law, and the force and effect of the process, judg- 
 ments and decrees of such courts, severally, shall be uniform." 
 
 The purpose of this provision was not to confer 
 upon the legislature power to regulate the courts that 
 it did not possess under the other provisions of the 
 constitution, but it was to prohibit special legislation. 
 The use of ,the words " so far as regulated by law," of 
 itself indicates that there are " proceedings and prac- 
 tice " of the courts which are not to be regulated by 
 law. But even were this provision held to confer upon 
 the legislature power to regulate the " proceedings and 
 practice " of the courts, the charging of the jury is, 
 according to the very high and respectable authority 
 above cited, "neither practice, pleading, nor a form nor 
 mode of proceeding." On the contrary, it is the personal 
 conduct and administration of the judge in the dis- 
 charge of his separate functions: 
 
342 INSTRUCTING THE JURY. 
 
 That there is a limit to the power of the legisla- 
 ture to regulate the courts, all will concede. But 
 where is the limit, if it has the power to compel the 
 judge to reduce to writing whatever he may deem it 
 proper to say to the jury, in instructing them as to 
 the law? By what kind of reasoning can such an 
 assumption of power be sustained, and the right denied 
 to the legislature to require the judge to reduce to 
 writing all remarks he may desire to make in the 
 presence of the jury; or to prohibit him altogether 
 from speaking aloud in the court-room ? What shall 
 be said by the courts, when some future assemblage of 
 legislative Solons enact that the judge shall charge 
 the jury before the counsel make their arguments; or 
 that the arguments of counsel shall be written out 
 to be "taken by the jury in their retirement, and 
 returned by them, with their verdict, into court"; or 
 that the judge shall not charge the jury at all, or only 
 give such instructions as the counsel may choose to 
 prepare ? A judicial opinion which could demonstrate 
 the invalidity of such legislation, and at the same time 
 show the constitutionality of the act requiring the 
 judge to instruct the jury only in writing, and endorse 
 on the margin of such instructions as he cannot give 
 the word "refused," and on the margin of such as he 
 gives the word " given," would, indeed, bp a master- 
 piece. 
 
 The truth is, as is well said by the supreme court 
 of California, in Houston v. Williams, supra, no such 
 power can exist in the legislative department, or be 
 sanctioned by any court, which has the least respect 
 for its own dignity and independence. No interference 
 by the legislature with the personal conduct of the 
 judge in the discharge of his separate functions should 
 be tolerated. It is the right and the duty of the judge 
 to declare to the jury the principles of law which are 
 
CONSTITUTIONALITY OF STATUTE. 343 
 
 to guide them in their determination of the facts, and 
 this right he should exercise, and this duty he should 
 perform, in such a manner as he may believe will best 
 enlighten the jurors and be conducive to a proper 
 verdict, and the propriety of his conduct should be a 
 question solely for the appellate tribunals which have 
 the power to correct his errors. 
 
 But the supreme court have taken a different view 
 of the matter and have sustained this legislation. At 
 the same time they have constantly resisted the 
 attempts made to control their own conduct. Thus, 
 in 1879, an act was passed commanding the judges of 
 the supreme court, " in all cases pending in said court, 
 to prepare and file their written opinions deciding 
 said cases, during- the respective terms at which said 
 causes may be heard and determined." (Laws of 1879, 
 p. 98.) Yet it has been wholly disregarded. Again, 
 the act in relation to mandamus, passed in 1874, 
 authorizes the filing of a petition in vacation and the 
 issuing of a summons returnable on the first day of 
 the next term of the court, and provides that, if the 
 petition be filed in term time, the summons may be 
 made returnable on any day of the term not less than 
 five days after the date of the writ, and it prescribes 
 the methods of pleading. The act is general in its 
 terms and applicable to all courts having jurisdiction 
 in mandamus cases. Nevertheless the supreme court, 
 while adopting the methods of pleading prescribed, 
 have instructed their clerks to permit no petitions to 
 be filed in vacation, and when a petition is presented 
 in term time, leave must be obtained to file the same 
 and the summons is made returnable usually in about 
 six months. 
 
 The constitution may be searched in vain for any 
 clause which confers upon the legislature greater 
 power to regulate the circuit court than to regulate 
 
344 INSTRUCTING THE JURY. 
 
 the supreme court. Both courts are parts of the judi- 
 cial department^ one of the three co-ordinate branches 
 of the state government. It would certainly seem 
 that if one of these courts was not subject to legisla- 
 tive control, the other should not be, and in that view 
 of the matter, it would be interesting as well as in- 
 structive to the profession to have it explained why 
 it is that the supreme court have refused themselves 
 to obey the legislature, and yet sustained its right to 
 pass so many laws dictating to the circuit judge the 
 manner in which he shall conduct himself upon the 
 bench. 
 
 But it is useless to discuss this question further. 
 We must accept the situation. If this law requiring 
 instructions to be in writing is to be got rid of, it 
 must be by demonstrating to the legislature that the 
 act has been one of the chief causes of the bringing of 
 the administration of justice in this state, so far as 
 trial by jury is concerned, into its present lamentable 
 condition; For this purpose the reader will be asked 
 to consider the various rules laid down by the supreme 
 court which are to guide counsel in preparing and the 
 trial courts in giving instructions. 
 
 RULE FIRST. 
 
 Juries should he permitted to believe nothing, except 
 that belief be occasioned by the evidence. 
 
 In Ewing v. Runkle, 20 111. 464, Mr. Justice Breese, 
 in delivering the opinion of the court, says : 
 
 " The objection to the eleventh instruction is as to the form. 
 The jury are instructed, 'If they believe the plaintiff, etc.' 
 Juries should be permitted to believe nothing, except that be- 
 lief be occasioned by the evidence, and their minds should 
 always be directed to that, and to that only, as the ground of 
 their belief." 
 
RULES FOR TRIAL COURTS. 345 
 
 In Parker v. Fisher, 39 111. 171, Mr. Justice Breese, 
 in delivering the opinion of the court, says : 
 
 " The second instruction not being based on the evidence, or 
 rather the jury not being required to believe 'from the evi- 
 dence,' that defendant agreed, etc., is objectionable under all 
 the rulings of this court on that point, yet the matter of law 
 stated in it cannot be denied." 
 
 In City of Freeport v. Isbell, 83 111. 443, Mr. Justice 
 Craig, in delivering the opinion of the court, says : 
 
 " The tenth instruction, should we ignore other objections 
 urged against it, is liable to one serious objection. It has often 
 been held that the jury should be instructed that their belief, 
 or finding, must be founded upon the evidence, and yet, in the 
 concluding part of the instruction, we find the following: ' The 
 jury should give the plaintiff such damages as they, under their 
 oaths, can say will be a fair compensation for said injury, not 
 exceeding, however, the sum of $10,000, the amount claimed in 
 the plaintiff's declaration.' 
 
 " The law required the jury to determine the liability of the 
 defendant from the evidence, and from that alone ; and an in- 
 struction which would permit them to enter into an open field 
 of investigation cannot be sustained. The instruction should 
 have been modified, or the court should have refused it." 
 
 The extreme nicety of this decision will be more 
 thoroughly appreciated when it is remembered that 
 the oath administered to the jury is : " You and 
 each of you do solemnly swear that you will well and 
 truly try the matter now in issue and a true verdict 
 render according to the evidence." But inasmuch as 
 in the case in question the oath was not written out 
 on a sheet of legal cap and the word "given " inscribed 
 on the "margin thereof," and "taken by the jury in 
 their retirement, and returned by them, with their 
 verdict, into court," the decision is undoubtedly cor- 
 rect under repeated rulings of the supreme court that ■ 
 
346 INSTRUCTING THE JURY. 
 
 oral qualifications of written instructions are not ad- 
 missible. 
 
 Tn Martin v. Johnson, 89 111. 538, Mr. Chief -Justice 
 Craig, in delivering the opinion of the court, says : 
 
 " By the fifth instruction, given for the plaintiff, the jury 
 were instructed that they were the sole judges of the amount of 
 damages which the plaintiff should recover, without being told 
 that the damages should be estimated from the evidence intro- 
 duced in the trial. It was the province of the jury to determine 
 the damages plaintiff should recover, if any, but these damages 
 should be determined from the evidence, and from that alone ; 
 and an instruction which did not restrict the jury to the evi- 
 dence was improper. City of Freeport v. Isbell, 83 111. 440." 
 
 The rule above laid down was, however, modified,' 
 explained or limited, in Gizler v. Witzel, 82 111. 325, in 
 which Mr. Justice Craig, in delivering the opinion 
 of the court with reference to a certain instruction, 
 
 says : 
 
 " The fourth is as follows : 
 
 " ' The court instructs the jury, that if they believe, from the 
 evidence, that plaintiff commenced the assault, yet, if they 
 believe the use of the knife was unnecessary in the defense of 
 the defendant, they will find for plaintiff.' 
 
 " It is said, in the belief of one fact the jury were restricted 
 to the evidence, and not the other. It is not necessary that a 
 jury should be told, in each sentence of an instruction, that they 
 should believe from the evidence. If the first part of the in- 
 struction contains the clause, a jury of intelligent men would 
 not be misled if it was omitted in the remaining portion of the 
 instruction. The criticism on the instruction, that the jury 
 were made to believe that if appellant could have made his 
 defense with any other weapon he should have done so, and not 
 used the knife, we do not regard as well founded." 
 
 It is not perceived how this decision can be 
 sustained. By requiring that the belief that the 
 plaintiff commenced the assault should only be 
 
RULES FOE TRIAL COURTS. 347 
 
 formed from the evidence, but that the question 
 whether the use of the knife was unnecessary in the 
 defense of the defendant might be determined from 
 mere belief, without evidence to support it, the trial 
 court manifested a partiality for the , plaintiff and 
 unjustly discriminated against the defendant. The 
 case, it is true, was not a railroad case, but yet it was 
 one in which the recitals of the facts might tend to 
 touch the feelings of the jury, and therefore the jury 
 ought to have been most accurately instructed. Com- 
 mon observation teaches us how apt jurors are, in 
 such cases, to seek for a reason that would justify 
 them in finding a verdict in accordance with their 
 sympathies. An improper instruction ,may often 
 afford the desired pretext, and, in all such cases, no 
 instruction, which is calculated to mislead the jury 
 into giving a verdict not warranted by law, should be 
 allowed to go to them. 
 
 In the above case the phrase " from the evidence " 
 was contained in the first part of the instruction. It had 
 prior to that time also been decided that it would be 
 sufficient if this phrase were in the middle of the 
 instruction, as in the case of T., W. & W. R'y Co. v. 
 Lockhart, 71 111. 629, in which Mr. Justice Craig, in 
 delivering the opinion of the court, says : 
 
 " The next point relied upon is, it is claimed by appellant 
 that appellee's first instruction does not require the jury to 
 believe the facts therein stated, from the evidence. * * * The 
 second sentence of the instruction expressly provides, if the 
 jury believe, from the evidence, etc.; and this, by any fair or 
 reasonable construction, would apply to each fact they were 
 required to find by the instruction without again repeating it." 
 
 It had also been decided that it might be located 
 in the latter part of the instruction, as in Belden v. 
 Woodmansee, 81 111. 28, in which Mr. Justice Schol- 
 field, in delivering the opinion of the court, says : 
 
348 INSTRUCTING THE JURY. 
 
 " The objection to the fourth is, that it tells the jury that if 
 they believe certain matters they may find on their belief, and 
 does not restrict them to what they ' believe from the evidence,' 
 
 " In the first part of the instruction the words ' from the 
 evidence,' after the words ' if you believe,' are omitted, but at the 
 conclusion of that clause these words occur, ' and if you further 
 believe, from the evidence,' showing that the omission must 
 have been accidental ; and so, we think, the jury would have 
 understood it. We do not think the jury, on reading the whole 
 instruction, could have been misled by it, and have felt author- 
 ized to act upon a belief not arising from the evidence." 
 
 This rule, with its modifications, may answer well 
 enough in ordinary cases, where both parties are indi- 
 viduals ; but it should not be regarded as stringent 
 enough in railroad cases, for, in such cases, too great 
 care cannot be exercised to avoid affording the jury a 
 pretext for finding a verdict in accordance with their 
 sympathies, rather than according to the weight of the 
 evidence. It would be far better and safer, in that 
 class of actions, to require the jury, before finding a 
 verdict, to believe each and every essential fact " from 
 a dispassionate and unprejudiced consideration of the 
 evidence, all the evidence, and nothing but the evi- 
 dence." With such a form of instruction the danger 
 of misleading the jury would be reduced to a mini- 
 mum. 
 
 Having thus learned how the belief of the jury 
 should be formed, let us next ascertain how strong 
 that belief should be required to be. 
 
 RULE SECOND. 
 
 To entitle the plaintiff to recover, it is sufficient if the 
 evidence creates probabilities in his favor ; that the weight 
 of the evidence inclines to his side. 
 
 In Crabtree v. Reed, 50 111. 207, Mr. Justice Breese, 
 in delivering the opinion of the court, says : 
 
EULES FOR TRIAL COURTS. 349 
 
 " The only question between the parties to this record was 
 as to the value of a mule the appellee acknowledged he had 
 struck with a heavy stick, and which belonged to the appellant, 
 causing its death. 
 
 " The action was case for killing the mule, and the court, on 
 behalf of defendant, instructed the jury that the burden of 
 proof rested upon the plaintiff, and that he was bound to mainr 
 tain, by a clear preponderance of evidence, the allegations in the 
 declaration, and that, unless they find such a preponderance, 
 they will find for the defendant. Though the defendant had 
 admitted he struck the mule in disciplining nim, he not having 
 been broke to work, and that from the blow the mule died, he 
 contested the fact of killing before the jury, and under the 
 above instruction the jury found for him. 
 
 " This instruction must certainly have misled the jury. The 
 law is not, in such a case, that there shall be a clear preponder- 
 ance of evidence in favor of the plaintiff, to entitle him to 
 recover. It is sufficient if the evidence creates probabilities in 
 his favor ; that the weight of the evidence inclines to his side. 
 
 "For this error, the judgment must be reversed and the 
 cause remanded." 
 
 The distinction between a "preponderance" and 
 a " clear preponderance " is a very nice one. If there 
 be a distinction, it would seem to follow that there 
 were different degrees of preponderance as well as 
 different degrees of negligence, and they might perhaps 
 be denominated "not clear," "clear" and "very clear." 
 As we have before seen, in the chapter on Comparative 
 Negligence, the court, in C. & N. W. R'y Co. v. Clark, 70 
 111. 278, in speaking of an instruction, which authorized 
 a recovery if the negligence of the plaintiff's intestate 
 was slight and the negligence of the defendant clearly 
 exceeded that of the intestate, said : 
 
 " We have never held, as this instruction announces, that 
 where there is negligence on both sides, the mere preponderance 
 against the defendant will render him liable. The rule is, that, 
 although the plaintiff may have been guilty of some negligence, 
 
350 INSTRUCTING THE JURY. 
 
 still, if it is slight as compared with that of the defendant, he 
 may recover. But he cannot recover unless the negligence 
 of the defendant clearly and largely exceeds his." 
 
 In that case the court evidently understood the 
 terms "clearly exceeded" and "clear preponderance" 
 to mean the same thing as "merely exceeded" and 
 " mere preponderance." 
 
 RULE THIRD. 
 
 The jury should not be left at liberty to speculate on 
 probabilities, but should be required to be satisfied by the 
 greater weight of evidence. 
 
 In Warner v. Crandall, 65 111. 195, Mr. Justice Shel- 
 don, in delivering the opinion of the court, says: 
 
 " The last clause of the third instruction given for the plain- 
 tiff, to-wit : ' and if the jury consider it more probable, from all 
 the facts and circumstances as shown by the evidence, that the 
 contract was that such work was to be paid for by Warner & 
 Edwards, then the jury should so find,' was also objectionable. 
 
 " The jury should not have been left at liberty to speculate 
 on probabilities, but should have been satisfied by the greater 
 weight of evidence that Warner & Edwards, and not Edwards & 
 Wood, were to pay for the work in question." 
 
 In Peak v. The People, 76 111. 292, the first instruc- 
 tion given for the people was as follows- : 
 
 " The court instructs the jury that, in this case, it is not in- 
 cumbent upon the people to show, by a clear preponderance of 
 evidence, that the defendant, George Peak, is the father of the 
 child charged to be his in the complaint, but it is sufficient if 
 the evidence creates probabilities in favor of that opinion, and 
 that the weight of the evidence inclines to that side of the 
 question." 
 
 With reference to this instruction, Mr. Justice 
 Sheldon, in delivering the opinion of the court, says : 
 
 " The first instruction is, doubtless, suggested by the ruling 
 in Crabtree v. Reed, 50 111. 206, that it was erroneous to instruct 
 
RULES FOR TRIAL COURTS. 351 
 
 that there must he a clear preponderance of evidence in favor 
 of the plaintiff, to entitle him to recover. 
 
 " But if the instruction in that affirmative form was im- 
 proper to be given for the defendant, it does not follow that it 
 would he proper to give for the plaintiff the instruction in the 
 negative form, as in this case. The objection to the affirmative 
 form is, that it is calculated to lead the jury to understand that 
 the preponderance must be clear, beyond a reasonable doubt. 
 The objection to the negative form, as here, is, that though the 
 testimony may leave the mind so in doubt that the jury cannot 
 tell which way it preponderates, yet, as it is not necessary that 
 the preponderance should be clear to their minds, they may 
 justify themselves, without seeing a preponderance, in deciding 
 in the direction of their partialities. The instruction here was 
 calculated to mislead the jury to understand that they might 
 find for the prosecution, though it might not be clear that the 
 testimony preponderated on that side. A preponderance was 
 necessary, and there should have been nothing of a hint to the 
 jury lhat anything less would do. 
 
 " We think the instruction was erroneous in this respect, 
 and also in the further respect, that 'it is sufficient if the evi- 
 dence creates probabilities in favor of that opinion (that Peak 
 is the father of the child), and that the weight of evidence 
 inclines to that side of the question.' 
 
 " We think it was erroneous to say that the hypothetical 
 proof stated would be sufficient, without any reference to the 
 degree of the probability, or strength of the evidence, as being 
 sufficient to satisfy the jury of the truth of the charge. It was 
 for the prosecution to make proof of their case to the satisfac- 
 tion of the jury. The evidence, perhaps, need not, as in crimi- 
 nal cases, have been of such sufficiency as to generate . full 
 belief of the fact to the exclusion of all reasonable doubt, but 
 it must have been sufficient in degree to produce in the minds 
 of the jury a belief of the truth of the charge. Had there been 
 evidence producing merely a slight probability in favor of an 
 opinion of guilt, or any evidence, however weak, tending to its 
 proof, and no evidence on the other side, there would have been 
 created a probability in favor of the plaintiff, and the weight of 
 evidence would have inclined that way, and upon such evidence, 
 
352 INSTRUCTING THE JURY. 
 
 under the instruction, the jury would have been justified in 
 finding for the plaintiff. The jury should not be so instructed 
 that, by an artificial rule laid down to them, they may feel 
 warranted to find one way or the other, without their minds 
 being satisfied as to the truth of the fact in dispute. See Parker 
 v. Johnson, 25 Ga. 577 ; Mays v. Williams, 27 Ala. 268 ; Long 
 v. Hitchcock, 9 Carr. & Payne, 619 ; 1 Stark Ev. 543." 
 
 It will be observed that in this case the court do 
 not overrule the case of Crabtree v. Reed, supra, but 
 they recognize it as sound, and announce the proposi- 
 tion that although it is not the law that the jury must 
 be required to believe from a clear preponderance of 
 the evidence, it is nevertheless not the law that they 
 must not be required to believe from a clear prepon- 
 derance. The positive is not the law, nor is the nega- 
 tive, but the requirement is evidently a happy medium 
 between the two. 
 
 RULE FOURTH. 
 
 The jury should only be required to believe from the 
 evidence, and should not be required to be satisfied from 
 the evidence. 
 
 In Herrick v. Gary, 83 111. 85, Mr. Justice Breese, in 
 delivering the opinion of the court, says : 
 
 " The instructions for appellee were four in number. The 
 first is as follows : 
 
 " ' In order to recover in this case, the plaintiff must show, 
 by the evidence in the case, to the satisfaction of the jury, that 
 the defendant's sheep not only might, but actually did, commu- 
 nicate the disease or diseases in question to plaintiff's sheep, and 
 if the fair preponderance of the evidence fails to establish such 
 facts, or show that it is probable that plaintiff's sheep became 
 elsewhere infected, or that it was as likely they caught the dis- 
 ease elsewhere as from the defendant's sheep, or from his fath- 
 er's sheep, which had been first infected by the defendant's 
 sheep, then the jury should find the defendant not guilty.' 
 
 " The objection to this instruction is manifest. The first 
 branch of it places the standard of the degree of proof required 
 
RULES FOE TRIAL COURTS. 353 
 
 higher than the law demands in controTersies of this character. 
 It is enough that the jury shall believe, from the evidence, that 
 the essential facts are true. The jury may so believe, although 
 the same may not be shown by the evidence to the satisfaction 
 of the jury. This instruction requires not merely that the evi- 
 dence shall produce belief in the mind of the jury of the facts 
 alleged, but that such belief shall be so strong as to be satisfac- 
 tory. This is, perhaps, not quite so strong as to require a belief 
 beyond a reasonable doubt, but it approximates it, and which is 
 only required in criminal cases. The mind cannot well be said 
 to be satisfied as to a given proposition, so long as such matter 
 remains at all in doubt. For this reason the instruction must 
 be condemned. There are subsequent phrases in the instruction 
 which do not seem to demand a degree of proof so high, but the 
 phraseology is not clear and plain and, as a whole, the instruc- 
 tion was liable to mislead the jury. An instruction similar to 
 this was held bad in Warner v. Crandall, 65 111. 195." 
 
 The case of Warner v. Crandall, thus referred to, as 
 we have before seen, seems to hold the contrary. 
 
 In Graves v. Colwell, 90 111. 618, an instruction with 
 reference to certain deeds, introduced in evidence by 
 plaintiff, declared as follows : 
 
 " The jury are instructed that these deeds offered in evidence 
 by him make a, prima facie case in his favor, and the burden of 
 proof is upon the defendant to show, to the satisfaction of the 
 jury, that the Thomas Colwell from whom the plaintiff claims 
 title was not the person who, in fact, owned the land and held 
 the title for the same ; and unless the jury believe, from the 
 evidence, that the defendant has overcome this prima facie case, 
 and shown, to the satisfaction of the jury, that the Thomas Col- 
 well who conveyed the land in controversy to Adolphus Colwell 
 and the plaintiff was not the owner of the land and did not hold 
 the title to the same, they will find for the plaintiff." 
 
 Of this, Mr. Justice Baker, in delivering the opin- 
 ion of the court, says : 
 
 " As we understand these instructions, they are not in con- 
 formity with the views of the law we have herein expressed. 
 
354 INSTRUCTING THE JURY. 
 
 The jury must have understood they were required, notwith- 
 standing they may have believed that the defendants had made 
 out a, prima facie defense, by proving circumstances of sufficient 
 weight to shift the burden of proof and thereby set aside the 
 rebuttable legal presumption that otherwise would have enabled 
 plaintiff to recover without proving the material fact in issue, 
 and on which his case was predicated, nevertheless to return a 
 verdict for plaintiff, even though the weight of evidence was 
 against him, unless the preponderance of proof was so greatly 
 in favor of defendants as to satisfy their minds, a thing which 
 could only be accomplished by producing a state of moral cer- 
 tainty, or, in other words, by proving beyond a reasonable doubt 
 that the son and not the father was intended. The instructions 
 assume and the record shows the evidence was conflicting ; in 
 that state of the case, it being a civil suit, it was required of 
 neither party more than that it should produce a preponderant 
 weight of testimony." 
 
 In Protection Life Ins. Co. v. Dill, 91 111. 174, Mr. 
 Chief-Justice Craig, in delivering the opinion of the 
 court, says : 
 
 " The seventh instruction, in effect, told the jury that certain 
 facts must be established by satisfactory evidence and by a pre- 
 ponderance, of the evidence, or the plaintiff could not recover. An 
 instruction of this character was liable to mislead the jury. A 
 preponderance of evidence was sufficient to entitle the plaintiff 
 to a verdict, but had this instruction been given, the jury would, 
 no doubt, have concluded, from the language used, that some- 
 thing more was required." 
 
 In Stratton v. Cent. City Horse R'y Co., 95 111. 25, Mr. 
 Justice Dickey, in delivering the opinion of the court, 
 in commenting upon a similar instruction, says : 
 
 "Juries are required in civil cases to decide facts upon the 
 weight or preponderance of tbe evidence, and this, too, where 
 ■ the proof does not show the fact in question to the satisfaction 
 of the jury. In such cases the jury may find any given fact in 
 a given way, upon their judgment as to the weight or prepon- 
 derance of the evidence, though they may have reasonable doubts 
 
RULES FOR TRIAL COURTS. 355 
 
 as to the real truth. The law in such cases does not demand 
 that every material allegation be established to the satisfaction 
 of the jury, and it was error to tell the jury so in the instruc- 
 tion." 
 
 These rulings of the court were followed by the 
 appellate courts in 0., 0. & F. R. V. R. R. Co. v. McMath, 
 4 Brad. 356, and Buchanan v. Dodds, 6 Brad. 25. 
 
 Yet in C. & R. I. R. R. Co. v. McKean, 40 111. 222, 
 Mr. Justice Breese, in delivering the opinion of the 
 court, says : 
 
 " It is undeniable this court may set aside a verdict, if the 
 facts fail to satisfy it of its propriety." 
 
 And it seems very strange that the supreme court 
 may set aside a verdict if the evidence fails to satisfy 
 them of its propriety, and that very verdict must 
 be rendered by the jury, if they believe it to be proper, 
 though they may not be satisfied it is so. 
 
 In C. & N. W. Ry. Co. v. Hatch, 79 111. 139, the 
 court below refused to give the following instruction 
 asked by defendant : 
 
 " 7. Every person is bound to know that a railroad crossing 
 is a dangerous place, and he is guilty of neglect unless he 
 approaches it as if it were dangerous. . If Swift, the driver of 
 the team in question, knew the crossing where the accident 
 complained of occurred was a dangerous one, he was bound to 
 know that a train might be approaching ; and if he did not 
 look or listen to ascertain if one was coming, but, on the con- 
 trary, drove directly on the track, and the accident resulted, 
 he was guilty of such negligence as precludes the plaintiffs 
 from recovering in this case, unless the plaintiffs have gone 
 further and proven to the satisfaction of the jury that the 
 railway company upon such occasion was guilty of gross negli- 
 gence." 
 
 As the vicious character of the phrase above itali- 
 cized had not, at that early period of our judicial 
 
356 INSTRUCTING THE JURY. 
 
 history, been discovered by the supreme court, the 
 judgment was reversed because the court below did 
 not give this and other instructions. 
 
 RULE FIFTH. 
 
 Juries should be required to decide cases according to 
 their convictions of the truth of the matter found by 
 their verdict, and not their mere inclinations. 
 
 In Cox. v. The People, 109 111. 459, Mr. Justice 
 Mulkey, in delivering the opinion of the court, says : 
 
 "The first instruction given for the People, to which an 
 exception was taken at the time, was in these words : 
 
 " 'The jury are instructed that in this action the People are 
 not bound to prove that the defendant, Cox, is the father of the 
 bastard child of the prosecuting witness, Rhoda Hallock, 
 beyond a reasonable doubt. If upon a consideration of all the 
 evidence you are inclined to believe he is the father of such 
 child, then you should so find your verdict.' 
 
 " Here the jury are told, if from a consideration of all the 
 evidence they are inclined to believe the defendant was the 
 father of the child, they should so find by their verdict, however 
 grave and well founded their doubts might be on the subject. 
 Evidence very slight, indeed, especially on some subjects, might 
 give a juryman an inclination to decide in a particular way, 
 when it would be wholly insufficient to sustain a verdict. 
 Jurors are required to decide cases according to their convic- 
 tions of the truth of the matter found by their verdict, and not 
 their mere inclinations. In a case of this character we can 
 hardly conceive of an instruction that would be more likely to 
 mislead a jury than the one in question." 
 
 This rule that decisions should not be made from 
 inclination does not apply to those made by judges. 
 It is a very common thing for a circuit judge to say 
 "I am inclined to believe," or, "I am inclined to the 
 opinion," and thereupon decide a question of law or 
 of fact in accordance with the belief or opinion to 
 which he is thus inclined. And many decisions of 
 
EULES FOR TRIAL COURTS. 357 
 
 the supreme court are to be found in. which they say 
 "we are inclined to hold," or, "we are inclined to 
 the opinion," and decide accordingly. Thus in C. & N. 
 W. R'y Co. v. Clark, 70 111. 280, the court use the fol- 
 lowing expression : " We should not incline to reverse 
 for this assignment of error." And in City of Free- 
 port v. Isbell, 83 111. 443, they say : " We are, there- 
 fore, inclined to hold the instruction should have been 
 modified or refused." If "evidence very slight, in- 
 indeed, especially on some subjects, might give a jury- 
 man an inclination to decide in a particular way," the 
 same may be true of judges. And if judges, as well as 
 jurors, were "required to decide cases according to 
 their convictions " of the very right and justice of the 
 claims of the respective parties, the administration of 
 justice might be improved. But such is not the prac- 
 tice. While judges forbid juries to decide cases on 
 probabilities, they themselves annul the verdicts of 
 juries on mere possibilities. This is especially true in 
 railroad cases, in which it is almost always held suffi- 
 cient ground for the reversal of a judgment if an erro- 
 neous instruction has been given which might have 
 affected the result, although there may not be a rea- 
 sonable probability that it did affect it. 
 
 These four rules, and the cases cited in their sup- 
 port are very interesting. They certainly ought to be 
 sufficient to prove to the satisfaction of the reader that 
 a considerable number of mistakes, or supposed mis- 
 takes, made by the circuit courts are solely attributa- 
 ble to their laudable and successful efforts to follow 
 the decisions of the supreme court. They also show 
 the degree of skill a circuit judge in this state must 
 possess to enable him to successfully conduct jury 
 trials. According to rule second, it is proper to tell 
 the jury that to entitle the plaintiff to recover, it is 
 sufficient if the evidence creates probabilities in his 
 
358 INSTRUCTING THE JURY. 
 
 favor, that the weight of the evidence inclines to his 
 side. But, according to rule fifth, it is not sufficient to 
 justify the jury in rendering a verdict for the plaintiff, 
 if, from all the evidence, they are inclined to find in 
 his favor. In other words, if the "inclination" is in 
 the weight of the evidence, it will justify a verdict, 
 hut if the " inclination " is in the minds of the jury- 
 men, though it is produced by a consideration of all 
 the evidence, it will not justify a verdict. Hence it is 
 of the utmost importance that, in charging the jury, 
 the court should properly locate the " inclination." In 
 this respect these two rules differ from rule first, which 
 makes the phrase " from the evidence " necessary, but 
 leaves its location to the discretion of the judge. 
 
 The distinction between " believing," " being satis- 
 fied," and "being convinced," is also an important one 
 to be observed by the trial judge. However difficult 
 it may be for the judge to perceive any substantial 
 difference between these expressions, there evidently 
 is a difference which is perceptible to jurors, who, as 
 all know, are men " of fair character, of approved in- 
 tegrity, of sound judgment, and who understand the 
 English language." According to the rules above 
 given, it is proper to tell them they must " believe " 
 or "be convinced," but to tell them they must "be 
 satisfied," would probably mislead them. 
 
 RULE SIXTH. 
 
 The court may argue the case for the defendant but 
 not for the plaintiff . 
 
 In I. C. R. R. Co. v. Baches, 55 111. 388, Mr. Justice 
 Walker, in delivering the opinion of the court, says : 
 
 " The twenty-seventh of appellant's instructions was refused. 
 It is this : 
 
 '"If the jury believe, from the evidence, that the plaintiff, at 
 the time of the death of said Jacob Baches, had a deformity of 
 
RULES FOE TRIAL COURTS. 359 
 
 her left hand, partially impairing the use of said hand, and 
 that such deformity had existed from the time of her birth, 
 such fact cannot increase or diminish the amount of damages 
 which she will he entitled to recover in this suit, in case the 
 jury find the issue for her, and if the jury should find the issue 
 for the plaiutifE, they are instructed, in the assessment of 
 damages, to disregard all the testimony in the case as to such 
 deformity. 1 
 
 " This instruction was proper, and should have been given 
 by the court. It, like the preceding instruction, properly 
 excluded an improper element from the consideration of the 
 jury in assessing damages. The only question for the jury is 
 the pecuniary injury sustained by the death of the deceased, 
 and that cannot, in the remotest degree, depend upon whether 
 the widow is disabled. She may not, for that reason, be able to 
 earn as much as if she were not disabled, but appellants are in 
 nowise liable for her misfortune, and are not bound to con- 
 tribute to relieve her from the consequences of that disability. 
 They did not produce it, and are not liable to relieve her against 
 the results it may produce." 
 
 In C, B. & Q. R. E. Co. v. Harwood, 80 111. 91, Mr. 
 Justice Sheldon, in delivering the opinion of the court, 
 
 says : 
 
 "The following instruction, asked by the defendant, was 
 refused : 
 
 "'You are instructed that, in considering the damages in 
 this ease, it is your duty to dismiss from your minds all con- 
 sideration of the grief, sorrow and mental affliction of the 
 widow and children of the deceased ; to dismiss from your 
 minds all personal feeling and sympathy which may have been 
 aroused by the recital of the circumstances of the casualty, and 
 consider only the pecuniary injury. 1 
 
 " The statute giving this right of action limits, expressly, 
 the damages to the pecuniary injuries sustained. It was the 
 right of the defendant to have the jury so instructed, and it was 
 error to refuse the instruction. Illinois Central Railroad Co. 
 v. Baches, 55 111. 379." 
 
360 INSTRUCTING THE JURY. 
 
 But in City of Peoria v. Simpson, 110 111. 304, Mr. 
 Justice Scott, in delivering the opinion of the court, 
 says : 
 
 "Again, by the latter clause of this same instruction, the 
 jury were told that, in forming an estimate of the damages sus- 
 tained by plaintiff, they had no right and should not permit 
 themselves to be influenced by any consideration of what effect 
 their ' verdict might have upon taxation in the case of the city, 
 nor upon his financial condition in case of Densberger.' This 
 is in no sense submitting a proposition of law to the jury, appli- 
 cable to the facts. At most it is a mere suggestion to them as 
 to the consequences that might flow from their verdict that 
 should not be considered in arriving at a conclusion, that it was 
 not the province of the court to make to them. It is difficult 
 to conceive of an instruction more mischievous in its effects, or 
 calculated to make a worse impression on the minds of the jury." 
 
 The only difference between the first two of the 
 above cases and the last one is, that in the former the 
 jury were told not to allow improper considerations 
 to influence them to award more damages than were 
 sustained, while in the latter they were told not to 
 allow improper considerations to influence them to 
 award less damages than were sustained. In principle 
 there is no difference at all. 
 
 RULE SEVENTH. 
 
 Each single instruction must be correct in itself, without 
 reference to others of the series. 
 
 In C. & A. R. E. Co. v. Murray, 62 111. 330, as we 
 have already seen in the chapter entitled "Trial by 
 Jury," a little girl, seven and one-half years old, was run 
 over by a railroad engine upon a public street in Bloom- 
 ington, and had one leg cut off and an arm crushed. 
 Upon the trial, two instructions given on her behalf, 
 and some on the part of the railroad company, correctly 
 stated the doctrine of comparative negligence, but two 
 
RULES FOR TRIAL COURTS. 361 
 
 others omitted to state it, and authorized a recovery if 
 the injury was caused by the want of ordinary care on 
 the part of the engineer or fireman. For the omission 
 to state the doctrine of comparative negligence in 
 these two instructions, the supreme court reversed the 
 judgment. 
 
 In C, B. & Q. R. R. Co. v. Lee, 60 111. 506, Mr. Justice 
 Sheldon, in delivering the opinion of the court, says : 
 
 " The other instruction makes the company liable for negli- 
 gence, and entitles the plaintiff to recover, whether Lee was in 
 fault or not, and without reference to the degree of his negli- 
 gence. It lays his duty entirely out of view, and mates the 
 right of recovery to turn on the question of the defendant's 
 negligence alone. In this respect the instruction was erroneous, 
 as decided in the case of a like instruction in C, B. & Q. R. R. Co. 
 v. Payne, 49 111. 500. See also Keokuk Packet Co. v. Henry, 50 
 111. 264 
 
 "And on the authority of the first case, it is not a sufficient 
 answer to say that instructions, given for the defendant, quali- 
 fied the rule laid down in the plaintiff's instructions and correctly 
 announced the law in the case — it being there held that \t is not 
 sufficient to say that the law in the case is correctly given in 
 one set of instructions, if it is incorrectly stated in another set. 
 In such case the jury may well be in doubt which of the instruc- 
 tions give to them correctly the law, and be left to select and 
 follow either, as it might strike them as being most proper. 
 See also Denman v. Bloomer, 11 111. 240." 
 
 In I. C. R. R. Co. v. Maffit, 67 111. 434, Mr. Justice 
 Walker, in delivering the opinion of the court, says : 
 
 "The fifth instruction, although somewhat differently 
 framed, is fully as defective in denning comparative negligence 
 as the second and seventh, and should not have been given. 
 Nor is it an answer to say that the instructions on the part of 
 appellant were more accurate. In a case where the evidence is 
 conflicting, and there may be doubt, each party has an indubi- 
 table right to have the jury clearly and accurately instructed as 
 to the law of the case, not only that his own instructions shall 
 
362 INSTRUCTING THE JURY. 
 
 be proper, but those of the opposite party shall be free from 
 error." 
 
 In Camp Point Mfg. Co. v. Ballou, 71 111. 417, Mr. 
 Justice Sheldon, in delivering the opinion of the 
 court, says : 
 
 " It is objected to the second and fifth instructions, given 
 for plaintiff, that they tell the jury, in effect, that the plaintiff 
 may recover if the accident was caused by any defect or insuffi- 
 ciency of the machinery used by the defendant. There was 
 evidence given of several defects in the machinery, not alleged 
 in the declaration, and the instructions should have confined the 
 right of recovery to the defects specified in the declaration. It 
 is insisted that the error is obviated by other instructions for 
 the plaintiff, which predicate the right of recovery on the 
 deceased having been killed by the defendant's negligence in 
 manner and form as alleged in the declaration. But, after hav- 
 ing been instructed that the plaintiff might recover if the acci- 
 dent was caused by any defect in the machinery, the jury would 
 not feel called upon to search through the various counts of the 
 declaration to find out what particular defects were therein 
 complained of. That would be unimportant if there could be a 
 recovery on account of any defect. Nor does the defendant's 
 instruction restricting the right of recovery to the causes of 
 action alleged in the declaration cure the error." 
 
 In C, B. & Q. R. R. Co. v. Harwood, 80 111. 91, Mr. 
 Justice Sheldon, in delivering the opinion of the 
 court, says : 
 
 " This court has repeatedly declared it to be the duty of a 
 person, coming on to a railroad crossing of a highway, to exer- 
 cise care and caution to avoid collision with any passing train, 
 and to use precaution before going thereon, to ascertain whether 
 there is any train approaching. Chicago & Alton Railroad Co. 
 v. Gretzner, 46 111. 75 ; Toledo, Peoria & Warsaw Railroad Co. 
 v. Riley, 47 id. 514 ; Chicago & Alton Railroad Co. v. Jacobs, 63 
 id. 178. The failure to ring a bell or sound the whistle does not 
 exempt the traveler on the highway from this duty. The in- 
 struction asserted a right of recovery under the circumstances 
 
RULES FOR TRIAL COURTS. 363 
 
 named in it, without containing the requirement of any care or 
 caution on the part of the deceased. In this, the instruction 
 was manifestly wrong ; and, although other instructions given 
 did contain such requisite, that did not cure the error. It left 
 the jury at liberty to select and act upon either instruction, as 
 might strike them as being most proper. Chicago, Burlington 
 & Quincy Railroad Co. v. Payne, 49 111. 499 ; Chicago, Burling- 
 ton & Quincy Railroad Co. v. Lee, 60 id. 502 : Illinois Central 
 Railroad Co. v. Maffit, 67 id. 431." 
 
 In a dissenting opinion, Mr. Justice Craig says : 
 " Conceding that the instruction given for appellee was im- 
 proper, and the one refused for appellant should have been given, 
 yet, as the law involved in the case was fully and clearly given 
 to the jury by other instructions, I do not think the jury was 
 misled, or that the verdict would have been different had the 
 court given appellant's refused instruction, and refused the one 
 given for appellee. I do not, therefore, concur with the major- 
 ity of the court in reversing the judgment." 
 
 In C. & K W. R'y Co. v. Dimick, Admr., 96 111. 42, 
 Mr. Justice Craig, in delivering the opinion of the 
 court, among other things, says : 
 
 " Now, while there was evidence which tended to show neg- 
 ligence on the part of the deceased, and which might have been 
 regarded by the jury as sufficient to defeat a recovery, the jury 
 were instructed on behalf of plaintiff, in Nos. 1 and 8, that a 
 recovery might be had under the circumstances named in the 
 instruction, leaving out of view entirely any care or caution on 
 behalf of deceased. 
 
 " The instructions are as follows : 
 
 " ' 1. The court instructs the jury that, by the law of the 
 State of Illinois, a bell of at least thirty pounds weight, or a 
 steam whistle, is required to be placed on each locomotive en- 
 gine, and to be rung or whistled by the engineer or fireman at 
 the distance of at least eighty rods from the place where the 
 railroad crosses any public street or highway, and to be kept 
 ringing or whistling until such street or highway is reached ; 
 and the corporation or owners of the railroad are liable to any 
 
8G4 INSTRUCTING THE JURY. 
 
 party injured for all damages sustained by reason of the neglect 
 to comply with such requirement.' 
 
 " ' 8. If the jury should find, from the evidence, that the de- 
 fendant is guilty of the wrongful act, neglect or default as 
 charged in the plaintiff's declaration, and that the same resulted 
 in the death of Gilbert H. Dimick, then the plaintiff is entitled 
 to recover in this action, for the benefit of the widow and next 
 of kin of deceased, such damages as the jury may deem, from 
 the evidence and proofs, a fair and just compensation for the 
 pecuniary injury resulting from such death to such widow and 
 next of kin, not exceeding $5,000.' 
 
 " An instruction almost identical with the above was con- 
 demned in Chicago, Burlington & Quincy Railroad Co. v. 
 Harwood, 80 111. 88. It may be said that the defendant's in- 
 structions gave the law on this subject accurately to the jury, 
 but that is not enough. Where a case is close in its facts, the 
 instructions should all state the law accurately. The jury, not 
 being judges of law, are as likely to follow a bad instruction as 
 a good one. 
 
 "The plaintiff's ninth instruction, which undertook to state 
 the doctrine of comparative negligence, is erroneous and calcu- 
 lated to mislead the jury. It was as follows : 
 
 " ' 9. The court further instructs the jury that if they be- 
 lieve, from the evidence, that Gilbert H. Dimick was killed by 
 the defendant's locomotive engine and train while he was trav- 
 eling upon a highway which crossed the defendant's railroad 
 there, although the jury may believe, from the evidence, that 
 the deceased was himself guilty of some negligence which may 
 have, in some degree, contributed to the injury, yet, if the jury 
 further believe, from the evidence, that the negligence of the 
 defendant was of a higher degree, or so much greater than that 
 of the deceased that that of the latter was slight in comparison, 
 the plaintiff is entitled to recover in this action.' 
 
 " Where both parties have been guilty of negligence, this 
 court has never held that the mere preponderance against a 
 defendant will render him liable. The rule, as has often been 
 announced, is, that although the plaintiff may have been guilty 
 of some negligence, still, if it is slight as compared with that of 
 
RULES FOE TRIAL COURTS. 365 
 
 defendant, which is gross, a recovery may he had. Chicago and 
 Northwestern Railway Co. v. Clark, 70 III. 276. 
 
 " Without entering upon any discussion of the evidence, we 
 are of opinion that the giving of these three instructions was 
 error. It is true the jury were fully instructed on behalf of the 
 defendant on every material question in the case, and if this was 
 a case where there was no question in regard to the right of 
 plaintiff to recover, we might not reverse on account of the 
 erroneous instructions, hut where a case is as close in its facts 
 as this is, justice demands that all the instructions should he 
 accurate." 
 
 In a dissenting opinion, Mr. Justice Scott, among 
 other things, says : 
 
 "On a careful examination of the instructions given for 
 plaintiff, it is not perceived they contain anything hurtful to 
 defendant. The first and eighth instructions, to which the 
 same objection is taken, state the law correctly as expressed in 
 the statute, and we do not understand the principle stated 
 in the instructions is condemned in Chicago, Burlington & 
 Quincy Railroad Co. v. Harwood, 80 111. 88. No doubt it could 
 have been added with great propriety, it must appear plaintiff 
 was observing reasonable care for his personal safety before a 
 recovery could be had ; but that principle was fully stated in 
 other instructions given for plaintiff. It is not understood a 
 party must state every fact necessary to a recovery in a single 
 instruction. The principle defendant contends for was repeat- 
 edly and fully declared in numerous other instructions, and it 
 is impossible the jury did not fully understand it. * * * The 
 ninth instruction is inartistically and curiously worded, and may 
 not have stated the doctrine of comparative negligence with 
 entire accuracy, but it is not perceived how it could by any pos- 
 sibility have been hurtful to the defense. As respects the other 
 instructions given for plaintiff, it may be safely said they state 
 the law applicable to the facts of the case with sufficient ac- 
 curacy. 
 
 " On behalf, and at the request of defendant, the court gave 
 thirty-three instructions, stating the law in almost every con- 
 ceivable way as defendant contends it is. Every principle of 
 
366 INSTRUCTING THE JURY. 
 
 law that counsel insists is applicable to the facts of the case is 
 contained in some one or more of the numerous propositions 
 submitted, and as favorably to the theory of the defense as de- 
 fendant could expect." 
 
 The opinion of the majority of the court in the 
 above case merits some consideration. From the 
 statement of the facts, which is not included in the 
 above quotation, it appears that Dimick met his death 
 on the 29th day of July, 1873. The statute then in 
 force, being the act of 1869 (Laws of 1869, p. 308), pro- 
 vided as follows : 
 
 "A bell of at least thirty pounds weight, or a steam 
 whistle, shall be placed on each locomotive engine, which 
 shall be rung or whistled by the engineer or fireman at 
 the distance of at least eighty rods from the place where the 
 railroad crosses any public street or highway, and be kept ring- 
 ing or whistling until such street or highway is reached, under 
 a penalty of not exceeding one hundred dollars for each neglect, 
 one-half of which penalty to go to the prosecuting witness, and 
 the other half to go to the state ; and the corporation owning 
 the railroad shall be liable to any party injured for all damages 
 sustained by reason of such neglect : Provided, that such 
 penalty shall be sued for within three months from the time 
 the cause of action accrues, and not thereafter." 
 
 After Dimick's death this statute was repealed, and 
 on July 1, 1874, the following went into force in lieu 
 thereof : 
 
 "Every railroad corporation shall cause a bell of at least 
 thirty pounds weight, and a steam whistle placed and kept on 
 each locomotive engine, and shall cause the same to be rung or 
 whistled by the engineer or fireman, at the distance of at least 
 eighty rods from the place where the railroad crosses or inter- 
 sects any public highway, and shall be kept ringing or whistling 
 until such highway is reached." 
 
 The reasons which led to the change of the statute 
 it is needless to speculate upon. It is but one of 
 
RULES FOB, TRIAL COURTS. 367 
 
 numerous mysterious changes made in our statute 
 law by the Kevision of 1874. It is sufficient for the 
 present to call attention to the fact that the opinion 
 in the Dimick case is to be considered with reference 
 to the earlier statute, and not to the later one. The 
 plaintiff's first instruction was, therefore, simply a 
 statement to the jury of the statute law of the state 
 in force at the time of Dimick's death. 
 
 The act entitled " An act requiring compensation 
 for causing death by wrongful act, neglect or default," 
 in force February 12, 1853, provides in substance that 
 whenever the death of a person shall be caused by 
 such a wrongful act, neglect or default as would, if 
 death had not ensued, have entitled the party injured 
 to maintain an action, then the person' or corporation 
 who would have been liable, if death had not ensued, 
 shall be liable to an action for damages, and in such 
 action the jury may give such damages as they shall 
 deem a fair and just compensation, with reference to 
 the pecuniary injuries resulting from such death to 
 the widow and next of kin of such deceased person, 
 not exceeding $5,000. The second instruction, as well 
 as the first, was, therefore, substantially a statement of 
 the statute law of. the state, and by referring to the 
 wrongful act, neglect or default as charged in the 
 plaintiff's declaration, it confined the jury to the case 
 made by the pleadings. 
 
 If, then, the statute law of the state is the law, 
 and is binding upon railroad companies and upon the 
 courts, and if the object of a jury trial in a railroad 
 case is not to conceal from or misstate to the jury the 
 law, these instructions would Seem to be unobjectiona- 
 ble. Before, however, discussing the propriety of 
 giving an instruction in the language of the statute, 
 let us ascertain what foundation there is for the state- 
 ment in the opinion of the court that "an instruction 
 
368 INSTRUCTING THE JURY. 
 
 almost identical with the above was condemned in 
 Chicago, Burlington & Quincy Railroad Co. v. Har- 
 wood, 80 111. 88." The instruction in that case was as 
 follows: 
 
 " The jury are instructed that, under the laws of this state, 
 the defendant was bound by its servants to ring a bell on the 
 locomotive or sound the whistle eighty rods distant from any 
 highway crossing, and to sound or ring the same continuously 
 until the crossing is reached. And in this case, if the jury 
 believe, from the evidence, that the defendant, by its servants, 
 neglected to ring the bell or sound the whistle continuously for 
 eighty rods before they approached the highway, and that, by 
 reason of such negligence, Riley Harwood was killed, then, in 
 that case, the jury will find for the plaintiff, if they further 
 believe, from the evidence, that the plaintiff is the administra- 
 trix of said Riley Harwood, and that their verdict, if they find 
 for the plaintiff, cannot exceed the sum of $5,000." 
 
 It was held bad because it asserted a right of 
 recovery under circumstances named in it, without 
 containing the requirement of any care or caution on 
 the part of the deceased. Whether it should have 
 been held bad or not it is not necessary to consider. 
 It is sufficient to call attention to the fact that Har- 
 wood met his death on the 17th day of August, 1874, 
 after the new statute went into effect, omitting the 
 provision contained in the former statute that the 
 corporation owning the railroad should " be liable to 
 any party injured for all damages sustained by reason 
 of such neglect." These two statutes are radically 
 different. The later simply declares the duty of the 
 railroad corporation, while the other not only declares 
 the duty but enacts that the omission of the duty 
 shall make the corporation liable to any party injured 
 for all damages sustained thereby. 
 
 Now let us consider the propriety of the ruling that 
 an instruction in a railroad case is insufficient which 
 
RULES FOR TRIAL COURTS. 369 
 
 states the liability of the defendant in the language of 
 the statute. Probably as fair a way as any to discuss 
 the question, is to compare that ruling with those 
 made by the court in criminal cases. 
 
 In McCutcheon v. The People, 69 111. 604, Mr. 
 Justice Scott, in delivering the opinion of the court, 
 says: 
 
 " It is claimed the indictment is fatally def ective, inasmuch 
 as it fails to aver defendant knowingly sold liquors to a minor. 
 It is insisted guilty knowledge is absolutely necessary to consti- 
 tute the offense, and unless the scienter is averred, it cannot be 
 proved on the trial. The principal authority relied on in 
 support of this proposition is the case of Miller v. The People, 
 3 Ohio, 471. This section of our statute is, no doubt, a sub- 
 stantial, if not a literal, copy of the Ohio Statute on the same 
 subject, and in construing it in Miller's case, the court said, 'to 
 convict for a violation of the second section, it is necessary to 
 aver in the information, and prove on the trial, that the seller 
 knew the buyer to be a minor.' Having adopted the statute of 
 a sister state, it is claimed the legislature adopted also the con- 
 struction previously given it by the courts of that state. The 
 rule on this subject is stated as we understand it in Streeter v. 
 The People, ante, p. 595. The doctrine as there announced is 
 that where the legislature adopts substantially the statute of 
 another state, it is presumed to adopt also the construction pre- 
 viously given it by the courts of that state, unless such con- 
 struction is inconsistent with the spirit and policy of our laws. 
 
 "The construction given to similar language in the Ohio 
 statute cannot but be regarded as being inconsistent with the 
 spirit and policy of our laws, and, therefore, no presumption 
 prevails that, in adopting it, the legislature also adopted the 
 construction that had previously obtained in that state. By 
 our laws, every indictment or accusation of the grand jury 
 shall be deemed sufficiently correct which states the offense in 
 the terms and language of the criminal code, or so plainly that 
 the nature of the offense may be easily understood by the jury. 
 B, S. 1845, p. 181. 
 
 24 
 
370 INSTRUCTING THE JURY. 
 
 " Since the adoption of this statute, it has uniformly been 
 held it was not necessary to do more than state the accusation in 
 the language of the statute creating the offense. Where the 
 intent is mentioned as an element of the offense created by a law, 
 it ought to be alleged ; but where it is silent as to motive, no 
 intent need be averred iu the indictment. * * * 
 
 "Independently of the question whether it is necessary to 
 allege a scienter in the indictment, it is insisted the act of sell- 
 ing intoxicating liquors to a minor is not itself made punishable 
 by the statute, unless the seller knew at the time the buyer was 
 a minor. We cannot concur in this view of the law. The 
 license procured under the first section of the act confers no 
 authority on the licensee to sell intoxicating liquors to a minor, 
 except upon one condition, viz. : he shall have the written order 
 of his parents, guardian, or family physician . He-is absolutely pro- 
 hibited, by the same section, from selling to a person intoxicated, 
 or who is in the habit of getting intoxicated, and his license 
 will afford him no protection. The law imposes upon the licensed 
 seller the duty to see that the party to whom he sells is author- 
 ized to buy, and if he makes a sale without this knowledge, he 
 does it at his peril. This is the. clear meaning of the law, and 
 any other construction would render it exceedingly difficult, if 
 at all possible, ever to procure a conviction for a violation of this 
 clause of the statute. This construction imposes no hardship 
 upon the licensed seller. If he does not know the party who 
 seeks to buy intoxicating liquors at his counter is legally com- 
 petent to do so, he must refuse to make the sale. It is made 
 unlawful, either with or without a license, to sell to a certain 
 class of persons, and to another class except under certain con- 
 ditions ; and if he violates either clause of the statute, he must 
 suffer the penalties imposed for its violation. It is no answer to 
 this view to say the licensee may sometimes be imposed upon 
 and made to suffer the penalties of the law, when he had no 
 intention to violate its provisions. This is a risk incident to the 
 business he has undertaken to conduct, and, as he receives the 
 gains connected therewith, he must assume also with it all the 
 hazards. Our laws make it a crime for a man to have carnal 
 intercourse with a female under a certain age, either with or 
 without her consent. It would shock our sense of justice to 
 
RULES FOE TRIAL COURTS. 371 
 
 hold a party not guilty because he did not know she was within 
 that age prescribed by the statute, and therefore incapable o£ 
 giving consent. The law makes the act a crime, and infers the 
 guilty intent from the act itself." 
 
 In this case, then, we find a defendant convicted of 
 a, criminal offense under an indictment charging him 
 with selling intoxicating liquor to a minor, although 
 it fails to aver that he knowingly sold the liquor to the 
 minor, and this is held proper by the court, on the 
 ground that the indictment charges the offense in 
 the language of the statute. Not only do the court 
 hold that, but they go farther, and declare that 
 the scienter on the part of the defendant need not be 
 proved upon the trial. Yet, in the Dimick Case, six 
 members of the court declare in effect that, under a 
 statute making a railroad company failing to ring a 
 bell liable to any party injured for all damages sus- 
 tained by reason of such neglect, it is not only neces- 
 sary that due care on the part of the person injured 
 should be alleged in the declaration and proven upon 
 the trial, but that requirement must be set forth in 
 every single instruction given for the plaintiff, it not 
 being sufficient that it is contained in a large portion 
 of the thirty-three given for the defendant. In other 
 words, the court hold that, notwithstanding the statute 
 declares that any party injured may recover for all 
 damages sustained by reason of such neglect, never- 
 theless somewhere, either between the lines of the 
 statute or in the opinion of some court, there is found 
 a direction to add the following : "provided, such party 
 shall allege in his declaration and prove upon the trial 
 that he himself exercised ordinary care, and shall 
 incorporate the doctrine of contributory or compara- 
 tive negligence into each of his instructions to the 
 jury." 
 
372 INSTRUCTING THE JURY. 
 
 The criminal cases in which this same rule has been 
 laid down are quite numerous, but only one more will 
 be cited, and that is the case of Cole v. The People, 84 
 111. 216, in which Mr. Justice Scott, in delivering the 
 opinion of the court, says : 
 
 " The indictment in this case was found under the 46th 
 section of the Criminal Code, Rev. Stat. 1874, sec. 46. That 
 section provides, in substance, that if two or more persons con- 
 spire and agree together, with the fraudulent or malicious in- 
 tent wrongfully and willfully to do any illegal act injurious 
 to the administration of public justice, every offender, on con- 
 viction, shall be imprisoned in the penitentiary not exceeding 
 three years, or fined not exceeding % 1,000. It will be observed 
 the indictment charges the offense, substantially, in the lan- 
 guage of the statute, that defendants "unlawfully, feloniously, 
 willfully and fraudulently did conspire and agree together, 
 with the fraudulent intent wrongfully and wickedly to injure 
 the administration of public justice, by then and there unlaw- 
 fully, willfully and fraudulently attempting to obtain and pro- 
 cure a decree of divorce, in the Superior Court of Cook County, 
 and that is all the law requires. By our laws every indictment 
 or accusation of the grand jury shall be deemed sufficiently cor- 
 rect which states the offense iu the terms and language of the 
 Criminal Code, or so plainly that the nature of the offense may 
 be easily understood. R. S. 1845, p. 481." 
 
 In view of these decisions, it is proper to consider 
 what would be the probable ruling of the court upon 
 the trial of a criminal case under a statute such as the 
 following : 
 
 "Any locomotive engineer who shall drive an en- 
 gine over a public highway without ringing a bell or 
 sounding a whistle continuously for a distance of 
 eighty rods before such engine reaches such highway, 
 and, by reason of so failing to so ring such bell or 
 sound such whistle, shall cause injury to any person, 
 shall be deemed guilty of a felony, and upon conviction 
 
RULES FOR TRIAL COURTS. 373 
 
 thereof shall be confined in the penitentiary for a 
 period of not less than one nor more than five years." 
 
 Would it be necessary, under such a statute, to aver 
 in the indictment and prove upon the trial that the 
 injured party used due care, and would it also be nec- 
 essary to insert the requirement of due care on the 
 part of such party in each and every one of the peo- 
 ple's instructions ? According to the McCutcheon and 
 Cole Cases it would not be, but according to the 
 Dimick Case it would be. 
 
 Such is one of the many differences between the 
 administration of the criminal code and that of the 
 railroad code, and the discriminations, as the reader 
 will find by investigation, are almost always in favor 
 of the railroad company. 
 
 With respect to the ninth instruction in the Dimick 
 Case, it must be admitted that it does not state the 
 doctrine of comparative negligence according to the 
 third, or latest and most approved style, but its style 
 is that of a strong combination between the first and 
 second styles described in the chapter devoted to a 
 discussion of that celebrated doctrine. If the instruc- 
 tion was erroneous, the judges of the supreme court 
 are to blame for the error, and for that reason, and for 
 the further reason that it could not possibly have 
 affected the result, it should not have been used as a 
 ground for the reversal of the judgment. 
 
 This opinion in the Dimick Case, as appears from 
 the reports, was filed March 23, 1880, and the petition 
 for a rehearing was denied September 14, 1880, In 
 The Town of Fox v. The Town of Kendall, 97 111. 72, 
 the court, in an opinion delivered by Mr. Justice 
 Walker, and filed November 20, 1880, say : 
 
 " It is objected that other of plaintiff's instructions failed to 
 limit or qualify the term 'notice' by the word 'reasonable,' 
 The instructions use the language of the statute, and it would 
 
374 INSTRUCTING THE JURY. 
 
 be unheard of to reverse because an instruction was given in 
 tbe language of the statute. There was no error in giving such 
 instructions. If defendant desired a construction of the lan- 
 guage, he was at liberty to prepare and ask such an instruction, 
 and on its being refused the question would arise whether that 
 was error." 
 
 The statement of the court, that it would be un- 
 heard of to reverse because an instruction was given 
 in the language of the statute, should, of course, be 
 qualified by adding " excepting in a railroad case." 
 
 Again, in determining the propriety of the ruling of 
 the supreme court as to the plaintiff's eighth instruc- 
 tion in the Dimick Case, a careful examination should 
 be made of the case of C, B. & Q. R. R. Co. v. Payne, 
 Admr., 59 111. 541, in which Mr, Justice McAllister, in 
 delivering the opinion of the court, says : 
 
 "The only instruction given on behalf of appellee, which is 
 complained of, is the fifth, and is as follows : 
 
 '"If the jury should find, from the evidence, that the de- 
 fendant is guilty of the wrongful act, neglect or default, as 
 charged in the plaintiff's declaration, and that the same resulted 
 in the death of Albert Y. Payne, then the plaintiff is entitled to 
 recover in this action, for the benefit of the next of kin of such 
 deceased, such damages as the jury may deem, from the evi- 
 dence and proofs, a fair and just compensation, with reference 
 to the pecuniary injuries resulting from such death, to such 
 next of kin, not exceeding $5,000.' 
 
 " The point of this instruction is the measure of damages, 
 and in this respect is entirely correct. But appellant's counsel 
 insists that it is wrong because it withdraws from the jury all 
 consideration of the conduct of deceased. 
 
 " We do not think the instruction obnoxious to criticism, 
 as claimed. It is not an unusual, nor is it an objectionable, 
 practice, where plaintiff's counsel desire an instruction as to the 
 rule of damages, to say to the jury that, if they find from the 
 evidence that the defendant is guilty, as charged in the declara- 
 tion, then the plaintiff is entitled to recover, and to define the 
 
RULES FOE TRIAL COURTS. 375 
 
 measure of damages. Such a mode obviates the necessity of 
 stating, and perhaps reiterating, hypothetically, each element of 
 the cause of action, before coming to the real point of the in- 
 struction. 
 
 " The declaration here alleges that the death of Albert Y. 
 Payne was caused by the wrongful acts, neglect and default of 
 defendant's servants, while he was exercising due care * * * 
 
 " It is the opinion of a majority of the court that there is 
 no substantial error in this record, and that the judgment of the 
 court below should be affirmed." 
 
 With the exception of the substitution of the 
 words "Gilbert H. Dimick" for "Albert Y. Payne," 
 "the widow and next of kin" for "next of kin," and 
 " for the pecuniary injury " in place of " with reference 
 to the pecuniary injuries," the instruction in the 
 Dimick Case is precisely identical, word for word, 
 with that in the Payne Case, and the objection taken 
 to the one in the former case is exactly the one taken 
 in the latter. Yet in the Dimick Case the instruction 
 is held bad, and not the slightest reference is made 
 to the former decision of the court, although' atten- 
 tion was expressly called to it in the petition for a 
 rehearing. 
 
 The foregoing arguments against the propriety of 
 the decision of the supreme court in the case under 
 review are based upon the facts appearing in the 
 opinion of the majority and in the dissenting opinion 
 of Mr. Justice Scott. The record in the case on file 
 in the clerk's office, however, discloses facts from 
 which it can be conclusively shown that the rulings 
 of the majority of the court were erroneous and in 
 disregard of elementary principles. The special in- 
 terrogatories propounded to the jury on behalf of the 
 plaintiff and their answers thereto, which were re- 
 turned with their general verdict, as they are set 
 forth on pages 35—36 of the record, were as follows : 
 
376 INSTRUCTING THE JURY. 
 
 "1st. Did the deceased, before going upon the crossing; 
 hear the witness Winter, or any other person, say to him ' Stop ! 
 The cars are coming,' or did the deceased hear any person 
 warning him of the approaching train? 
 
 ". Ans. He did not. 
 
 " 2d. Was there, at the time of the accident complained 
 of, any brush or other obstruction on the defendant's right of 
 way, so near said highway as to obstruct the view by persons 
 passing along said highway and approaching said crossing, of 
 the approaching trains on said railroad? 
 
 " Ans. There was. 
 
 " 8d. Did the servants of the defendant in charge of the 
 engine, commence blowing a steam whistle at a point at least 
 eighty rods from said crossing, and continue to blow said 
 whistle until said crossing was reached by said engine ? 
 
 "Ans. They did not. 
 ' " 4th. Did the servants in charge of said engine commence 
 ringing a bell at a point at least eighty rods from said crossing, 
 and continue to ring said bell until said crossing was reached 
 by said engine? 
 
 " Ans. They did not. 
 
 "5th. Did the fireman on said engine see the deceased 
 approaching said crossing in time to have warned him of the 
 approaching train before deceased went upon said crossing. 
 
 "Ans. He did. 
 
 " 6th. Did the fireman on said engine at the time he saw 
 deceased approach the crossing have reason to suppose that the 
 deceased did not see or hear the approaching train ? 
 
 "Ans. He did. 
 
 " 7th. Did the fireman after he saw the deceased approach- 
 ing said crossing, warn him in any way of the approaching 
 train before the horses of said deceased had got upon said cross- 
 ing or in time to have stopped him from going on said crossing? 
 
 " Ans. He did not. 
 
 " 8th. If the whistle had been blown continuously from 
 the time when the fireman first saw the deceased approaching 
 said crossing, would it have warned the deceased of the 
 approaching train in time to have avoided the collision? 
 
 "Ans. It would. 
 
RULES FOE TRIAL COURTS. 377 
 
 " 9th. Was defendant or its servants guilty of more negli- 
 gence or a greater degree of negligence than the deceased? 
 " Ans. They were." 
 
 The answers returned by a jury to special interrog- 
 atories propounded to them must necessarily be of 
 controlling importance, in many cases, in determining 
 the effect upon them of erroneous instructions. Thus, 
 for example, if the jury should be asked to find spe- 
 cially whether the plaintiff or person injured was 
 guilty of any negligence contributing to his injury, 
 and they should answer that he was not, it would 
 manifestly be wholly immaterial whether they were 
 told that contributory' negligence would defeat the 
 action. So, too, if they should be asked to find spe- 
 cially whether the plaintiff or person injured could, by 
 the exercise of ordinary care, have avoided the injury, 
 and they should answer that in the negative, it would 
 likewise be wholly immaterial how they were in- 
 structed with respect to the necessity of the exercise of 
 ordinary care on his part ; for, if the plaintiff or person 
 injured was guilty of no negligence at all, or if he 
 could not, by the exercise of ordinary care, have avoided 
 the injury, the right of recovery would depend entirely 
 upon whether the injury was the result of the negli- 
 gence of the defendant. 
 
 By the fifth, sixth, seventh and eighth interrogato- 
 ries and the answers thereto above given, it clearly 
 appears that the facts, as viewed by the jury, were, 
 that the fireman saw the deceased approaching the 
 crossing in time to have warned him ; that he had 
 reason to believe the deceased did not see or hear the 
 approaching train ; that he in no way attempted to 
 warn the deceased of danger, and that, had he blown 
 the whistle, it would have warned the deceased in 
 time to have avoided the collision. The facts in the 
 case, therefore, as the jury reported them to the court, 
 
378 INSTRUCTING THE JURY. 
 
 brought it clearly within the elementary rule an- 
 nounced by all text-writers and by all courts, that the 
 want of ordinary care on the part of the plaintiff, or 
 injured party, contributing to his injury, will not bar 
 a recovery where the defendant, after becoming aware 
 of the situation of the plaintiff or party injured, fails 
 to use ordinary care to avoid inflicting the injury. 
 Thus in Shearman and Eedfield on Negligence, section 
 36, the rule is stated as follows : 
 
 " It is now well settled that the plaintiff may recover, not- 
 withstanding his own negligence exposed him to the risk of 
 injury, if the defendant, after becoming aware of the plaintiff's 
 danger, failed to use ordinary care to avoid injuring him. Thus 
 if one negligently leaves an animal belonging to him on the 
 highway, though he cannot recover from one who injures it 
 through a negligent failure to look out for anything of the 
 kind, he may recover from one, who, seeing it, does not use 
 proper care to avoid running over it. So, if a vessel fails to 
 erhibit proper lights, and to take the proper side of the channel, 
 this will be a sufficient answer to an action against one who 
 negligently runs into the vessel before he sees it, or after it 
 is too late to avoid a collision ; but it is no defense in favor of 
 one who, having warning, fails to use proper care to avoid doing 
 an injury. So if a railroad engineer sees persons or property 
 on the track, he must check his train, and do his best to avoid 
 a collision. So if the owner of a house finds a rope fastened to 
 it, without his permission, and v recklessly loosens it, with notice 
 that his act endangers a trespasser holding on by the rope, he is 
 liable to the latter. The American cases, in which a contrary 
 opinion is expressed, will be found, upon analyzing them, to be 
 cases in which the negligence of the defendant consisted merely 
 in not foreseeing the negligence of the plaintiff ; for which, as 
 we have already shown, the defendant is not responsible." 
 
 And, in a note to the same section, they further say : 
 
 " In a very recent case in New York, it was held that rail- 
 
 rord companies have no right to run their trains upon the 
 
 assumption that travelers on a highway which the railroad 
 
RULES FOB TRIAL COURTS. 379 
 
 crosses will always be prudent and careful. On the contrary, 
 such companies have good reason to presume that persons cross- 
 ing the highway will frequently be negligent, and, therefore, 
 they should, in view of such a well-known fact, observe the 
 greater precaution. They must govern themselves by the actual 
 facts ;' and, if an engineer observes a drove of cows upon the 
 railroad, whether properly or improperly or negligently there, 
 he should indulge in no presumptions that they are properly 
 attended, and will be driven off in abundant season to escape col- 
 lision with the engine, but should exercise a degree of care and 
 precaution proportioned to the impending danger and the prob- 
 abilities of a collision." 
 
 This elementary rule was recognized by the Supreme 
 Court of Illinois, in the Johnson Case, 103 111. 512 {ante, 
 p. 121), though it was not there applicable. 
 
 Such being the law, there was not the slightest 
 reason to suppose an erroneous instruction as to the 
 degree of care the law demanded of Dimick could, in 
 the slightest degree, have affected the verdict of the 
 jury. As they viewed the facts and reported them 
 to the court, the defendant was liable because its ser- 
 vants, after becoming aware of Dimick's situation, 
 failed to use ordinary care to avoid injuring him. 
 While, therefore, had there been no special verdict, 
 nor anything to indicate the views of the jury as to 
 the facts, aside from their general verdict, there might 
 be some force in the position that substantial errors 
 in the instructions upon the point in question might 
 have misled them, the decision of the court in the case 
 referred to was, when considered in connection with 
 the special findings of fact by the jury, wholly unjus- 
 tifiable. 
 
 For a more complete understanding of the instruc- 
 tions in this case, the reader is referred to the conclud- 
 ing portion of this chapter, where they are given 
 in full. 
 
380 INSTRUCTING THE JURY. 
 
 RULE EIGHTH. 
 
 The instructions must be considered as a whole, and if, 
 when so considered, they state the law with substantial accu- 
 racy, an error in one or more of them will not justify a 
 reversal. 
 
 In Eubanks v. The People, 41 111. 486, Mr. Justice 
 Walker, in delivering the opinion of the court, says : 
 
 It is again objected that the court erred in giving the first 
 of the people's instructions. It informs the jury, that, if de- 
 fendant made an assault with a pistol with intent to 'kill or 
 murder' Donaldson, as is charged in the indictment, they should 
 find the defendant guilty. The indictment charges that the 
 intent was to ' kill and murder,' so that when tie jury turned to 
 it they necessarily saw that the offense was charged in the con- 
 junctive and the instruction informed them that they must 
 believe that the act was done as charged in the indictment., 
 We are therefore of the opinion that this instruction, although 
 not strictly accurate, was so modified by reference to the indict- 
 nent that it could not have misled the jury. Again, by the 
 second of the people's instructions the jury are informed that if 
 they believe the assault was made with intent to murder they 
 should convict. We must presume that the jury considered all 
 of the instructions given, and based their verdict on all and not 
 a portion, when considered with the evidence, and if they did so 
 in this case the second instruction relieved the first from diffi- 
 culty, especially when they referred to the charge in the indict- 
 ment." 
 
 And, accordingly, the defendant was sent to the 
 penitentiary for eight years. 
 
 In Murphy v. The People, 37 111. 458, Mr. Justice 
 Walker, in delivering the opinion of the court, says • 
 
 " It is likewise insisted that the court erred in giving instruc- 
 tions asked by the prosecution, and in refusing a portion of 
 those asked by the accused. After a careful examination of the 
 instructions given for the people, we find them correct, or made 
 so by those given for the defense. As a general rule, instruc- 
 
RULES FOE TRIAL COURTS. 381 
 
 tions depend upon themselves, but they, when taken together, 
 may, and frequently do, by explaining others, become freed 
 from objections. In the twelve given for the defendant, the 
 law of the case seems to be clearly announced, so far as it was 
 applicable to the facts of the case. And those given for the 
 defense, with one or two exceptions, announced the principles 
 contained in those that were refused. When a legal principle 
 has been once announced, there can be no necessity for its repe- 
 tition, and there can be no error in refusing to give it in a second 
 instruction." 
 
 And, accordingly, the defendant was sent to the 
 penitentiary for twenty-five years for manslaughter. 
 
 In Kennedy v. The People, 40 111. 489, the following 
 appears in the statement of facts : 
 
 "At the September term of the Circuit Court of Cook 
 County, John Kennedy, Patrick Fleming and William Corbett 
 were indicted for the murder of one Patrick Maloney. At a subse- 
 quent term of that court, on motion of Kennedy, he was ordered 
 to have a separate trial. Corbett and Fleming were tried at the 
 following November term, and convicted of the crime of murder, 
 and have since been executed. After the conviction of Corbett 
 and Fleming, on petition of Kennedy, there was a change of 
 venue in his case to Lake county, where on the 6th day of 
 February, 1866, he was tried and convicted of murder and sen- 
 tenced to be executed." 
 
 Mr. Justice Breese, in delivering the opinion of the 
 court, says : 
 
 " This was an indictment found in the Superior Court of 
 Chicago against the plaintiff in error, and two others, for mur- 
 der. A separate trial was allowed the plaintiff in error, and a 
 change of venue awarded on his application, to Lake county, 
 where a trial was had resulting in a verdict of guilty. 
 
 "A motion was made to set aside the verdict and grant a 
 new trial on the grounds, that the court had misdirected the 
 jury, and that the verdict was against the evidence and law of 
 the case. 
 
 " The motion was overruled and exceptions taken, and the 
 cause brought here by writ of error on a bill of exceptions. 
 
382 INSTRUCTING THE JUET. 
 
 The errors assigned are in giving the third, fourth and fifth in- 
 structions on behalf of the people, in refusing to give defend- 
 ant's third and seventh instructions, and in modifying the same, 
 and in refusing defendant's ninth instruction, and in overruling 
 the motion for a new trial." 
 
 In a subsequent portion of the opinion, the learned 
 judge further says : 
 
 " This court has often held where a series of instructions 
 embrace the law of the case when taken and considered together, 
 though one of them may be erroneous, still for such error a 
 judgment will not be reversed, provided it shall appear from the 
 whole record that substantial justice has been done, and no pre- 
 judice has resulted by reason of such erroneous instruction, and 
 that the law of the case has been fully given to the jury. How- 
 ard Fire & Mar. Ins. Co. v. Cormick, 24 111. 455 ; Warren v. 
 Dickson, 27 id. 115 ; Springdale Cemetery Association v. Smith, 
 24 id. 480." 
 
 And further on, the learned judge says : 
 
 " It is also objected by the prisoner's counsel, that the state's 
 .attorney, in his closing address to the jury, stated to them his 
 own belief of the prisoner's guilt, and informed them that Cor- 
 bett and Fleming had been convicted and sentenced for the 
 murder, and that the prisoner was as guilty as either of them 
 and that his acquittal would be an impeachment of the jury 
 that tried them. 
 
 "Whatever may be said of these remarks by the state's 
 attorney, it further appears in the record, that he did, in another 
 part of his closing speech, tell the jury that they ought to acquit 
 the prisoner, unless they believed, from the evidence, beyond a 
 reasonable doubt, that his guilt was established, and the court 
 further told them, by the eighth instruction asked by the pris- 
 oner, that they should disregard any assertion of counsel of the 
 existence of any fact bearing upon the question of the guilt of the 
 prisoner, which has not been proved before them, and which is 
 not fairly inferable from the facts proved, nor should the jury 
 regard any expression of opinion by the prosecuting attorney as 
 to the guilt of the prisoner, but the jury will determine the ques- 
 
RULES FOE TRIAL COURTS. 383 
 
 tion of his guilt or innocence solely from the evidence in the 
 case, and the law, as given by the court. 
 
 " This instruction certainly had the effect to destroy the force 
 of the remarks made by the state's attorney and remitted the 
 jury to their duty, to be governed solely by the evidence in the 
 cause and the law of the case. 
 
 " The last paragraph of this instruction, after the word ' pris- 
 oner,' was inserted by the court, to which modification the record 
 does not show the defendant took any exception. This being so, 
 no error can be assigned on it. Sedgwick v. Philips, 22 111. 184. 
 
 " It is also objected that the court refused to give the ninth 
 instruction for the prisoner. It is as follows : 
 
 " ' The jury should not regard the statements of the prose- 
 cuting attorney, that Fleming and Corbett have been convicted 
 of the offense for -which the prisoner is now on trial ; and this 
 statement should have no weight whatever in the case.' 
 
 "This instruction is substantially the same as the eighth 
 after it was modified, and which was given as modified. In the 
 case of May v. Tallman, 20 111. 443, this court said, when two 
 instructions are asked for, both of which contain the same 
 principle of law, the court may give the one and refuse the 
 other, and may refuse to repeat a principle of law which has 
 previously been fairly stated to the jury." 
 
 And, accordingly, the defendant was hanged. 
 ' With the ruling of the supreme court in the above 
 case should be compared that of the Appellate Court of 
 the First District, in the City of Chicago v. Wright and 
 Lawther Oil and Lead Mfg, Co., 14 Brad. 124, in which 
 Wilson, J., in delivering the opinion of the court, says : 
 
 "It is true the court, at the request of the defendant, 
 instructed the jury that they should disregard the evidence as to 
 the liability of the railroad company, This was perhaps a tech- 
 nical correction of the evil, but "we cannot say it was effectual 
 to wholly cure it. An impression once created in the mind is 
 not easily removed. We may close the door after looking out 
 upon a beautiful landscape, but we do not thereby shut out the 
 landscape. The vision still remains photographed upon the 
 
384 INSTRUCTING THE JURY. 
 
 tablet of the brain. The jury could not forget when consider- 
 ing of their verdict that it was the railroad company and not 
 the city that was to pay the damages ; and it is a reasonable 
 inference that this consideration had its influence in their 
 deliberations." 
 
 In Lander v. The People,. 104 111. 248, Mr. Justice 
 Mulkey, in delivering the opinion of the court, says : 
 
 " It is first objected the court erred in the giving, refusing 
 and modification of instructions. It is seldom instructions pre- 
 pared in the hurry and excitement of a trial are drawn with per- 
 fect accuracy, and it is conceded they were not in the present 
 case. We are of opinion, however, none of the errors com- 
 plained of are of such a character as to have possibly prejudiced 
 the rights of the accused. To reverse for every trivial error, 
 without regard to whether it exerted an improper influence over 
 the jury or not, would render our Criminal Code practically in- 
 operative. The office of instructions is to inform the jury what 
 the law is relating to the case in hand, and to assist them in ap- 
 plying it to the evidence before them, and it is the duty of 
 courts of review, in criminal cases, to see that no substantial 
 error is committed, in attempting to accomplish these objects, 
 which may possibly prejudice the rights of the accused, and this 
 is all the law requires. Without going into details, we may say, 
 in general terms, that we have carefully examined the instruc- 
 tions, and the several objections urged against them, and. the 
 action of the court with respect to them, and are unable to per- 
 ceive anything which, in our judgment, requires a reversal of 
 the case. Taking the instructions as a whole, we think they 
 fairly present the law applicable to the case, and that there is 
 no just cause to complain on the grounds suggested." 
 
 And, accordingly, the defendant was sent to the 
 penitentiary for twenty-five years. 
 
 In Kinney v. The People, 108 111. 527, Mr. Justice 
 Craig, in delivering the opinion of the court, says : 
 
 " To instructions Nos. 14 and 15, of defendant, the court 
 added the following : ' Given to be considered in connection 
 with instruction 13.' This modification is claimed to be erro- 
 
RULES FOE TRIAL COURTS. 385 
 
 neous. It was the duty of the jury to consider all the instruc- 
 tions together, and the mere fact that they were directed by the 
 court to consider the two instructions mentioned in connection 
 with one other in the series, could not mislead." 
 
 And, accordingly, the defendant was sent to the 
 penitentiary for ten years. 
 
 In Upstone v. The People, 109 111. 169, Mr. Justice 
 Sheldon, in delivering the opinion of the court, says: 
 
 " It is objected to the third instruction, that it states an 
 abstract principle of law not applicable to the case. This would 
 not be error unless the principle stated were erroneous." 
 
 Further on the court, with reference to two other 
 instructions, say : 
 
 " The same criticism is made with respect to these first two 
 as before, — that they ignore the prisoner's defense. There 
 clearly is no foundation for saying this as to the eighth, and as to 
 the seventh^that was only laying down the abstract principle of 
 law as to voluntary drunkenness being an excuse for crime ; and 
 in doing that, merely, it was not necessary to incumber the in- 
 struction with any exception of the defense that was made for 
 the prisoner. Mitchell v. Milholland, 106 111. 175 ; Logg v. 
 The People, 92 id. 598." 
 
 And, accordingly, the defendant was sent to the 
 penitentiary for seventeen years. 
 
 In Dunn v. The People, 109 HI. 635, Mr. Justice 
 Craig, in delivering the opinion of the court, says : 
 
 " The court gave ten instructions on behalf of the People, 
 and objection is made to all of them except the first, fourth and 
 eighth. * * * The third merely follows the language of the 
 statute which declares that drunkenness is no excuse for crime, 
 —and we held in Fitzpatrick v. The People, 98 111. 270, that 
 such an instruction was not erroneous." 
 
 Further on, in commenting upon an instruction 
 denning a "reasonable doubt," the court say : 
 
 " In a number of cases in this court an instruction given for 
 the People, containing, the above proposition, has been sus- 
 
386 INSTRUCTING THE JURY. 
 
 tained ; but we are aware of no case where an instruction like 
 the one given in this case has been sustained by this court. 
 The instruction is not a proposition of law, but it is more in 
 the nature of an argument than anything we can liken it to, 
 and in a case where the testimony is conflicting, or such as to 
 leave the minds of the jury in doubt, it would be likely to 
 prejudice the jury. While we do not hesitate to condemn the 
 instruction, still we do not think it did any harm in this case, 
 for the reason that the evidence did not leave the guilt of the 
 defendant in doubt. The guilt of the defendant was so clear 
 and palpable, from the evidence, that no question of doubt 
 could arise, and while the instruction was erroneous, the error 
 could work no injury in the case. 
 
 " The tenth and last instruction given for the People, merely 
 directs the jury as to the form of the verdict. But it is said 
 that the direction to fix the term defendant should serve in the 
 penitentiary, if found guilty, ignored their right to find the 
 defendant guilty of the lesser offense, and hence was erroneous. 
 We do not concur in this view, but if counsel for defendant 
 are correct, it was for them to prepare an instruction inform- 
 ing the jury that they should bring in a verdict of guilty, only, 
 if they find, from the evidence, that the defendant was guilty of 
 the lesser offense, — an assault with a deadly weapon ; and as 
 they did not ask for an instruction of that character, they are 
 in no position to complain. * * * 
 
 "It is also claimed that the verdict of the jury is against 
 the evidence. There is. no controversy in regard to the fact 
 that the defendant shot his former wife. He claims that the 
 revolver which he had in his possession was discharged by 
 accident, while engaged in a scuffle with his son. In this, how- 
 ever, he is contradicted by his wife and several members of his 
 family, who were present at the time the shooting was done. 
 Whether the shooting was an accident, for which the defendant 
 should not be held responsible, or whether it was done inten- 
 tionally, was a question of fact, purely for the determination of 
 the jury; and when they have settled that question without 
 passion or prejudice, in accordance with the evidence, it is not 
 the province of this court to disturb the verdict of the jury." 
 
RULES FOE TRIAL COURTS. 387 
 
 And, accordingly, the defendant was sent to the 
 penitentiary for seven years. 
 
 In Ritzman v. The People, 110 111. 370, Mr. Justice 
 Mulkey, in delivering the opinion of the court, says : 
 
 " The next objection relates to the exclusion of evidence. 
 Barry having stated, on his examination in chief, that Ritzman, 
 during the altercation in the orchard, called Lovett a ' son of a 
 bitch, 1 was asked, for the purposes of impeachment, if, in his 
 former examinations, he had made any such a statement as that. 
 On objection by the People, the court ruled, in effect, that the 
 inquiry should be limited to the questions actually asked and 
 the answers given in the former examinations, and that the 
 question, therefore, in the form put, was improper. We are of 
 opinion the rule, as laid down by the court, is rather stringent. 
 Great latitude should always be allowed in cross-examination, 
 especially in a capital ease, and the court should never inter- 
 pose, except where there is a manifest abuse of the right. The 
 right of cross-examination is justly esteemed one of the most 
 efficient means of eliciting the truth, and of exposing fabrica- 
 tion and falsehood. We think, where a witness, on a second 
 examination, as to a particular transaction, states an important 
 fact omitted in his previous account of the matter, his attention, 
 on cross-examination, may properly be called to the fact, and 
 he be required to explain why the omission was made in his first 
 statement. If, in such case, the fact in question was forgotten, 
 or omitted through inadvertence, and the attention of the wit- 
 ness was not directed to it, as it often happens, the witness, of 
 course, would so state, and that would end the matter. But if 
 the discrepancy was intentional, the cross-examination, as a gen- 
 eral rule, would develop the fact, and in such case it would, 
 arid properly should, affect the witness' credit before the jury. 
 While we think, as already indicated, the ruling of the court 
 on this subject was not sufficiently liberal, yet we are fully sat- 
 isfied, under the facts in this case, the error in question could 
 not have affected the result, and it therefore affords no ground 
 for reversal. 
 
 " One or two other objections of a similar character are made 
 
388 INSTRUCTING THE JURY. 
 
 by plaintiff in error, which, for the reason just stated, must be 
 disposed of in the same way. 
 
 "Numerous exceptions have been taken, and elaborately 
 argued, to the instructions of the court, most of which we re- 
 gard as highly technical, and affording no reason for a reversal or 
 even just criticism. It has often been said, and we repeat here, 
 that to require absolute, literal, technical accuracy in instruc- 
 tions, would, as a general rule, defeat the ends of justice, and 
 bring the administration of the criminal law into disrepute and 
 just contempt. It is sufficient when the instructions, considered 
 as a whole, substantially present the law of the case fairly to the 
 jury. That, we think, has been done in this case. The crim- 
 inal laws of this state must be enforced. And if it is not 
 already understood, it is high time it should be, that where a 
 case is clearly made out against the accused, and the jury have 
 so found, this court will not reverse for a mere technical error, 
 which it can see could not have affected the result." 
 
 And, accordingly, the defendant was sent to the 
 penitentiary for eight years. 
 
 The rule requiring the instructions to be consid- 
 ered as a whole has also been laid down in civil cases. 
 
 In Lawrence v. Hagerman, 56 111. 76, Mr. Justice 
 Scott, in delivering the opinion of the court, says : 
 
 "It is objected that the jury were not told in the instruc- 
 tions given for the appellee that he could not recover for his 
 taxable costs in the former suit, in this form of action. The 
 rule is, that the instructions given for the plaintiff and the de- 
 fendant, must be construed together, and when so considered, 
 if they state the law correctly as a whole, the error that may 
 appear in one series will be deemed corrected by the other. In 
 tJiis instance the jury were distinctly told, in an instruction 
 given on behalf of the appellant, that the appellee could not 
 recover his taxable costs in the attachment suit, in this form of 
 action, and this instruction must be held to have modified the 
 appellee's instruction to that extent. * * * The instructions, 
 considered together, state the true rule for ascertaining the 
 measure of damages, and no error that would mislead the jury 
 
RULES FOE TEIAL COURTS. 389 
 
 on the facts involved appears, and they must therefore be held 
 to be substantially correct." 
 
 In T., W. & W. R'y Co. v. Ingraham, 77 111. 309, Mr. 
 Justice Craig, in delivering the opinion of the court, 
 says : 
 
 " It is also urged that the instruction was erroneous, for the 
 reason that by it the jury were told appellant would be liable if 
 it furnished a car which was unsafe, independently of the ques- 
 tion whether the agents of the company had notice of the de- 
 fect, or might have had notice by the exercise of reasonable care. 
 * * * The instruction standing alone, is liable to the objection 
 taken, but when considered in connection with the other in- 
 structions, the objectionable feature is removed. * * * It was 
 the duty of the jury to consider all the instructions together, 
 and when this was done, .although the first instruction of ap- 
 pellee did not state the law accurately, we cannot see that the 
 jury were likely to be misled." 
 
 In Kendall v. Brown, 86 111. 387, Mr. Justice Schol- 
 fleld, in delivering the opinion of the court, says, in 
 reference to an instruction : 
 
 "But, even if the instruction were obnoxious to the charge 
 of being, when considered by itself, too general, it is so limited 
 by the first instruction, given at the instance of appellant, that 
 it is not probable it could have misled the jury. * * * There 
 were seven instructions, several of them lengthy, given at ap- 
 pellant's instance, presenting every plausible phase of his case 
 as favorably as he could desire it should be presented, and it is 
 impossible to say that the legal aspect of his case was not fully 
 and fairly presented to the jury." 
 
 Many other cases might be cited to illustrate the 
 application of these two rules. From those above 
 given it is not to be inferred that the rule requiring 
 each single instruction to be correct in itself, without 
 reference to others, is only applied in railroad cases. 
 It is also applied in some cases between individuals 
 and occasionally in a criminal case. This much, 
 
390 INSTRUCTING THE JURY. 
 
 however, may be said, that the rule is generally 
 applied in railroad cases, there being, so far as could 
 be ascertained by a careful examination, no case since 
 1870, to which either one of the four leading railroad 
 companies of this state have been parties, where the 
 opposite rule has been distinctly announced and 
 applied. On the other hand, the rule that it is suffi- 
 cient if the instructions, when considered as a whole, 
 properly state the law, though a single one may in 
 and of itself be erroneous, has generally been applied 
 in criminal cases. 
 
 Why these rules are thus applied is an interesting 
 question, but it will not be discussed here. It is suffi- 
 cient to say that the people of this state can never be 
 made to believe that a system of -administering justice, 
 by which men are hanged or sent to the penitentiary, 
 under judgments of conviction arrived at after erro- 
 neous rulings, which would be. held sufficient to annul 
 a judgment for dollars and cents against an individual 
 or against a railroad company, is such as ought to" 
 receive their approval. 
 
 RULE NINTH. 
 
 When counsel have a good cause they should not seek 
 to encumber it with a multitude of instructions. 
 
 In Adams v. Smith, 58 111. 418, Mr. Justice Scott, in 
 delivering the opinion of the conrt, says : 
 
 "We think, however, that the instructions given on behalf 
 of the appellee, were calculated to, and did mislead the jury on 
 the true issues involved. The series of instructions given, com- 
 prised the number of eighteen. They are very lengthy, and 
 argumentative in style. We do not propose to enter upon a 
 critical examination of the legal principles sought to be 
 announced in every one of them. To do so would require us to 
 write a treatise upon almost every phase of the action of 
 slander. We have not the time, nor the inclination, to enter 
 
RULES FOE TRIAL COURTS. 391 
 
 upon such a work. We do not understand why it is that coun- 
 sel, where they have a good cause, will seek to encumber it with 
 such a multitude of instructions, the almost invariable effect of 
 which is, to introduce manifest error into the record. Such a 
 practice does not enlighten the minds of a jury on the issues 
 submitted to them, but rather tends to introduce confusion. 
 Instructions should always be clear, accurate and concise state- 
 ments of the law as applicable to the facts of the case. It was 
 never contemplated, under the provisions of the practice act, 
 that the court should be required to give a vast number of in- 
 structions, amounting in the aggregate to a lengthy address. It 
 is a mischievous practice, and ought to be discontinued, A few 
 concise statements of the law applicable to the facts, are all 
 that can be required, and are all that can serve any practical 
 purpose in the elucidation of the case." 
 
 The converse of this rule, *fco-wit, that when coun- 
 sel have a bad case they should seek to encumber it 
 with a multitude of instructions, has not thus far been 
 announced by the supreme court, but the effect of 
 their decisions has been to make it a rule of practice 
 with railroad lawyers. The views of the court as to 
 the right of the trial judge to refuse to give too large 
 a number of instructions were, at an early day, ex- 
 pressed in Fisher v. Stevens, 16 111. 397, in which Mr. 
 Justice Skinner, in delivering the opinion of the court, 
 says: 
 
 " Numerous instructions were asked upon the trial, some of 
 which were given, and some refused. Fisher asked for sixteen 
 several instructions, seven of which were given as asked, three 
 given after qualifications by the court, and the balance refused". 
 
 " The only question of law was as to the liability of Fisher 
 to pay for bricks obtained for him, and used for his benefit. 
 The right to demand instructions must have some limit, and we 
 are not disposed to sanction its abuse, 
 
 "Sixteen instructions in this case should not have been 
 required on the part of the defendant, for the purpose of merely 
 
392 INSTRUCTING THE JURY. 
 
 enlightening the jury upon the law of the case, and were well 
 calculated to confuse and mislead them. 
 
 " As we think the court correctly instructed, both for the 
 plaintiff and defendant, so far as conducive to justice and a 
 fair trial, we do not deem it our duty to enter upon an investiga- 
 tion of the law of the instructions refused. Prior v. White, 12 
 111. 261." 
 
 The questions for the jury in the above case were 
 whether the bricks were got by Fisher's authority, 
 express or implied, or whether, if they were got with- 
 out his authority, he afterward voluntarily availed 
 himself of their use, or in any manner ratified the act 
 of the person who obtained them. Such questions are 
 scarcely less complicated and difficult than those 
 which arise in an action brought for negligence. Yet 
 in the Dimick Case, supra, we find there were thirty- 
 three instructions given for the defendant presenting 
 the law in almost every conceivable shape as defend- 
 ant contended it was, but nevertheless the judgment 
 was reversed because the'courfbelow had committed 
 the unpardonable error of telling the jury what the 
 law was as declared by the statutes of the state. And 
 in I. C. R. E. Co. v. Baches, 55 111. 379, the judgment 
 was reversed for the refusal of the trial court to give, 
 among others, the twenty-seventh instruction asked 
 by the defendant. Each of these two cases involved 
 simply the question whether the death of the plain- 
 tiff's intestate was the result of the wrongful act, 
 neglect or default of the defendant, and, if so, what 
 amount of damages should be awarded. That thirty- 
 three or even twenty-seven instructions should be 
 necessary in any such case to inform the jury as to the 
 rules of law relied upon by the defendant is, upon the 
 very face of it, absurd. 
 
 This rule, that a good case should not be incum- 
 bered by a multitude of instructions, is acted upon, to 
 
ETJLES FOR TRIAL COURTS. 393 
 
 a considerable extent, by the attorneys for the plain- 
 tiffs in railroad cases. Some lawyers even go so far as 
 to submit their cases without instructions. One of the 
 ablest judges of this state, during the latter years of 
 his practice, made it a rule to offer no instructions in 
 any case in which he felt confident of securing a ver- 
 dict in his client's favor. In lieu of instructions he 
 endeavored, in his closing argument, to state plainly 
 and accurately the principles of law applicable to the 
 case. He also informed the jury that the statute 
 authorized each party to present to the court written 
 instructions to be given to the jury, that the attorneys 
 of the opposite party would undoubtedly avail them- 
 selves of that privilege, and the court would probably 
 give some of the instructions requested by them. He 
 further told them that he himself preferred not to 
 jeopardize his client's case by offering instructions, 
 which might not be deemed sufficiently accurate by 
 the higher courts, to which the case might be appealed, 
 and would accordingly off er no written instructions, 
 but on the contrary, would trust to the honesty and in- 
 telligence of the jury to secure justice to his client 
 without the aid of any other statement of the law, on 
 his part, than the one he had made them in his argu- 
 ment, and which, he was confident, would not conflict 
 with that made in the written instructions to be given 
 by the court. This plan always proved successful. 
 But what a commentary it is upon the administration 
 of justice in Illinois, that one of the ablest lawyers of 
 the state should, by the technical character of the deci- 
 sions of the supreme court, have been driven, out of 
 mercy to his client, to adopt such a course ! 
 
 However humiliating it may be, the plan thus 
 adopted by this able lawyer must be made use of by 
 those who try suits against railroad companies, unless 
 our methods of procedure are improved, or unless the 
 
394 INSTRUCTING THE JUET. 
 
 higher courts become less technical. The supreme 
 court is not the only one of the higher courts, in which 
 the art of hypercriticism has reached a high state of 
 cultivation. Some of the appellate courts have ex- 
 hibited so high a degree of skill in this fine art, as to 
 justify the most skillful railroad lawyer in turning 
 green with envy. As a first-class specimen of modern 
 judicial hypercriticism, reference will be made to the 
 case of C. & E. I. E. R.Co. v. O'Connor, 13 Brad. 63, 
 decided by the Appellate Court of the First District. 
 In that case the third instruction given for the plain- 
 tiff was as follows : 
 
 "3. The court instructs the jury, that while a person is 
 bound to use reasonable care to avoid injury, yet he is not held 
 to the highest degree of care and prudence of which the human 
 mind is capable ; and to authorize a recovery for an injury, he 
 need not be wholly free from negligence, provided his negli- 
 gence is but slight, and the other party be guilty of gross negli- 
 gence, as denned in these instructions ; and in this case, although 
 the jury believe from the evidence that the plaintiff was guilty 
 of some slight negligence contributing to the injury in ques- 
 tion, yet if the jury further, believe, from the evidence, that the 
 plaintiff's negligence was but slight, and that the defendant's 
 servants were guilty of gross negligence, as explained in these 
 instructions, and that the injuries complained of as charged in 
 the declaration were caused thereby, then the plaintiff is enti- 
 tled to recover." 
 
 Among the instructions asked by the defendant was 
 the following, which the court refused to give as 
 asked, but modified the same by inserting therein the 
 words in italics, and gave the same to the jury as 
 modified. 
 
 1. If you find, from the evidence, that the plaintiff did 
 not exercise ordinary care, to avoid being injured, at the time of 
 the accident and prior thereto, and as a result he was injured, 
 you should find for the defendant, unless you find the acts of 
 
RULES FOR TRIAL COURTS. 395 
 
 the defendant were so willfully and wantonly reckless, as to 
 authorize the presumption of an intention to injure generally." 
 
 In delivering the opinion of the court, Bailey, P. J., 
 
 says: 
 
 " The doctrine of comparative negligence prevailing in this 
 state, has heen so often and so precisely denned, that it has been 
 reduced to a definite formula, which may be stated thus : A 
 plaintiff, though guilty of negligence contributing to the injury 
 complained of, may still recover, if his negligence is but slight, 
 and that of the defendant gross in comparison therewith. In 
 stating the rule to the jury in an instruction, no material ele- 
 ment of this formula can be properly omitted. Where a plain- 
 tiff is guilty of contributory negligence, before he can recover, 
 it must appear, not only that his negligence is slight, and that of 
 the defendant gross, but that they are so when compared with 
 each other. The element of comparison is as indispensable to a 
 proper statement of the rule, as are the degrees of the negli- 
 gence of the respective parties. As said by this court in Moody 
 v. Peterson, 11 Bradwell 180 : 'The doctrine of comparative 
 negligence is founded upon the comparison of the negligence 
 of the plaintiff with that of the defendant. This element of 
 comparison is of the very essence of the rule.' See, also, P., C. 
 & St. L. R'y Co. v. Shannon, id. 222. 
 
 "In the case of G. & C. U. R. R. Co. v. Jacobs, 20 111. 478, 
 where the doctrine was first announced in this state, it is said : 
 ' The true doctrine, therefore, we think is, that in proportion to 
 the negligence of the defendant should be measured. the degree 
 of care required of the plaintiff ; that is to say, the more gross 
 the negligence manifested by the defendant, the less degree of 
 care will be required of the plaintiff to enable him to recover, 
 * * * and whenever it shall appear that the plaintiff's negligence 
 is comparatively slight and that of the defendant gross, he shall 
 not be deprived of his action.' In the numerous cases decided 
 by the supreme court since the Jacobs Case, in which an accu- 
 rate statement of the rule has been attempted, the comparison 
 has been made an essential element of the rule. Thus, in E. St. 
 L., P. & P. Co. v. Hightower, 92 111. 139, it is said : ' Where the 
 plaintiff is guilty of contributory negligence, he cannot recover, 
 
396 INSTRUCTING THE JURY. 
 
 unless it appears that his negligence was slight, and that of 
 the defendant gross in comparison with each other. Both terms 
 must be stated to enable the jury to obtain a correct apprehen- 
 sion of the rule.' See also I. C. R. R. Co. v. Hammer, 72 111. 
 347 ; C, B. & Q. R. R. Co. v. Harwood, 90 id. 425 ; I. C. R. R. 
 Co. v. Hammer, 85 id. 526 ; Quinn v. Donovan, id. 194 ; C. & 
 N. W. R'y Co. v. Dimick, 96 id. 42. In the very late case of C, 
 B. & Q. R. R. Co. v. Johnson, 103 id. 512, in which the doctrine 
 of comparative negligence is reviewed, and its application restated 
 and somewhat niodihVd, the same rule is clearly recognized. 
 
 " It is apparent from what has been said that the plaintiff's 
 third instruction was erroneous, in that it failed to institute a 
 comparison of the plaintiff's negligence with that of the defend- 
 ant as required by the rule. The comparative negligence of the 
 parties was one of the principal matters of controversy at the 
 trial, and the jury should have been accurately instructed as to 
 the law applicable to that subject. The error was therefore 
 material. 
 
 " The court also erred in modifying the defendant's first in- 
 struction. The instruction, as asked, was, in substance, that if 
 the plaintiff did not exercise ordinary care, and as • a result was 
 injured, he could not recover unless the acts of the defendant 
 were so willfully and wantonly reckless, as to authorize the pre- 
 sumption of an intention to injure generally. This, we think, 
 stated the law with substantial accuracy. As said by the supreme 
 court in C, B. & Q. R. R. Co. v. Johnson, supra : ' In order to 
 authorize the plaintiff to recover on the ground of mere negli- 
 gence, as distinguished from the willful tort of the defendant, 
 it must appear that the party injured exercised ordinary care, 
 such as a reasonably prudent person will always adopt for the 
 security of his person and property, to avoid the injury com- 
 plained of.' Under this rule it is immaterial whether the 
 want of ordinary care is manifested at the time of or prior to 
 the injury, provided it bears such proximate relation to the injury 
 that it may be said, in a legal sense, to have caused or materially 
 contributed to it. If a defendant therefore convicts a plaintiff 
 of such want of ordinary care at the time of the injury, he is not 
 bound, in order to establish his defense, to also show a want of 
 ordinary care prior to the injury, and vice versa. By modifying 
 
RULES FOE TRIAL COURTS. 397 
 
 the instruction, however, the court held that the defendant, in 
 order to sustain this defense, was bound to show that the plain- 
 tiff failed to exercise ordinary care at the time of the injury and 
 prior thereto. This, in effect, imposed upon him the burden of 
 establishing two complete defenses in order to defeat one action. 
 " For the errors above pointed out, the judgment will be 
 reversed and the cause remanded." 
 
 The objection taken by the court to the third in- 
 struction given for the plaintiff is, that it omits the 
 essence of the doctrine of comparative negligence, to- 
 wit, the comparison. In other words, the court hold 
 the instruction to be in about the same condition that 
 the play of Hamlet would be, with the part of Hamlet 
 left out. Whatever might have been the force of such 
 an objection ten years ago, it is not valid now, for, as 
 before shown, the Johnson Case left the rule without 
 any essence. In the opinion in that case it was ruled 
 that, "if, as to a particular act, the negligence of 
 the plaintiff was ordinary and that of the defendant 
 gross, their relation is not changed by comparing 
 themwith each other." From this it follows, that if, 
 as to a particular act, the negligence of the plaintiff 
 was slight and that of the defendant gross, their rela- 
 tion is not, and cannot be, changed by comparing them 
 with each other, and, notwithstanding the most care- 
 ful and painstaking comparison, that of the plaintiff 
 remains slight and that of the defendant gross. Why, 
 then, institute a comparison? Is it supposed that 
 although, in Kendall county, the relation of the ordi- 
 nary negligence of Johnson to the gross negligence of 
 the railroad company could not be changed by com- 
 parison, yet that a Cook county jury, if required to 
 institute a comparison of the slight negligence of 
 O'Connor and the gross negligence of the railroad 
 company, could, by some sort of hocus pocus or leger- 
 demain, be made to see that the slight negligence of 
 
398 INSTRUCTING THE JURY. 
 
 O'Connor was ordinary or gross, and that the gross 
 negligence of the railroad company was slight or 
 ordinary ? Cook county juries are said to do some 
 strange things sometimes, but that they should be 
 able to accomplish such a change of unchangeable 
 things, surpasses all understanding. 
 
 Again, the very learned Appellate Court of the First 
 District have, in the case of W., St. L. & P. R'y Co. v. 
 Moran, 13 Brad. 76, declared that the "slight negli- 
 gence " contemplated by the rule of comparative neg- 
 ligence, is a degree of negligence of which the plain- 
 tiff may be guilty, even though in the exercise of 
 ordinary care. In other words, they have declared 
 that " slight negligence " is " ordinary care " and that 
 " ordinary care " is " slight negligence." Furthermore, 
 in First National Bank of Lanark v. Eitenmiller, 14 
 Brad. 27, they have intimated that a jury would under- 
 stand the term " ordinary care " to mean " slight neg- 
 ligence," and the term "negligence" to mean " equally 
 slight negligence." It follows from this that the in- 
 struction in the O'Connor Case, as offered and given, 
 meant and would be understood by a Cook county 
 jury to mean as follows : 
 
 "The court instructs the jury, that while a person 
 is bound to use reasonable care to avoid injury, yet he 
 is not held to the highest degree of care and prudence 
 of which the human mind is capable ; and to author- 
 ize a recovery for an injury, he need not be wholly free 
 from negligence, provided his negligence is ordinary 
 care, and the other party be guilty of gross negligence 
 as defined in these instructions : and in this case, 
 although the jury may believe, from the evidence, that 
 the plaintiff was guilty of some ordinary care contrib- 
 uting to the' injury in question, yet if the jury further 
 believe, from the evidence, that the plaintiff's negli- 
 gence was ordinary care, and that the defendant's 
 
RULES FOE TRIAL COURTS. 399 
 
 servants were guilty of gross negligence, as explained 
 in these instructions, and that the injuries complained 
 of, as charged in the declaration, were caused thereby, 
 then the plaintiff is entitled to recover." 
 
 Yet, the Appellate Court of the First District gravely 
 announce the law to be, that a plaintiff who has exer- 
 cised ordinary care, (which is synonymous with reason- 
 able, or due and proper care, and is all the law requires 
 any plaintiff in such a case to exercise), cannot recover 
 for an injury inflicted upon him by the gross negligence 
 of the defendant, unless a jury of his peers shall have 
 first ascertained by comparison, that his ordinary care 
 cannot be transmorphosed into ordinary or gross neg- 
 ligence, or the gross negligence of the defendant into 
 ordinary care or ordinary negligence, or, in other words, 
 that a legal impossibility is not an actual probability. 
 
 In modifying the defendant's first instruction, the 
 trial judge manifested great indiscretion. Instructions 
 offered by railroad lawyers should always be given as 
 asked, even though they are thirty-three in number. 
 The sole purpose for which a great many of them are 
 offered, is to entrap the circuit judge into making some 
 modification, which, when subjected to a microscopi- 
 cal examination by an appellate court, may be dis- 
 covered to be inaccurate. The instruction, as modi- 
 fied, plainly meant that upon the plaiatiff was imposed 
 the duty of exercising ordinary care, to avoid being 
 injured, at the time of the injury and prior thereto, 
 and that if he failed in that duty he could not recover, 
 unless, etc. Had the language been " to avoid being 
 injured, at the time of the injury or prior thereto," the 
 instruction would undoubtedly been held bad by the 
 same court, because it did not prohibit a recovery, if 
 the plaintiff exercised ordinary care, either before 
 or at the time of the injury. Suppose the Appellate 
 Court of the First District, in reversing a judgment of 
 
400 INSTRUCTING THE JURY. 
 
 the circuit court, should make the following announce- 
 ment : " If, when this cause again comes before us, we 
 shall find that the court below has not taken care, to 
 avoid error, in instructing the jury and in the proceed- 
 ings prior thereto, we shall again reverse the judg- 
 ment." Would any circuit judge feel that he was 
 authorized to give erroneous instructions, provided the 
 prior proceedings were free from error, or to admit in- 
 competent testimony, provided he committed no error 
 in the giving or refusing of instructions ? 
 
 The criticisms made by the appellate court upon 
 these two instructions are more nice than wise. The 
 reversal of the judgment, on the grounds stated, is a 
 good illustration of the maladministration of justice 
 in this state, and demonstrates that the only safe 
 way to try a railroad case in Cook county is, to give 
 no instructions for the plaintiff, and submit to the 
 giving of everything asked by the defendant! 
 
 With these technical and hair-splitting decisions, it 
 will be well to compare one of the earlier decisions 
 of the supreme court, that in Ohio & Mississippi Rail- 
 road Co. v. Irvin, 27 111. 179, in which Mr. Justice Caton, 
 in delivering the opinion of the court, says : 
 
 " This was an action against the railroad company for kill- 
 ing the plaintiff's cow. The plaintiff relied not upon the negli- 
 gence of the defendant in running its locomotive, but upon its 
 neglect to build and maintain a fence, as required by the statute, 
 at the place where the cow was killed. The counsel for the 
 appellant insists, that the proof does not show that at j;he point 
 where the cow was killed, the company was required by law to 
 keep up a fence. In this we think he is entirely mistaken. The 
 law does not require a stereotyped set of words to be used, in 
 order to prove a case against a railroad, any more than in any 
 other case. It is sufficient, if the testimony is such as reason- 
 ably to convince the mind of the existence of the necessary 
 facts. It is said that the proof does not show that the cow was 
 not killed in a town or village. The witness says, it was outside 
 
RULES FOR TRIAL COURTS. 401 
 
 of the houses of the town. The presumption is, that the houses 
 compose the village, and if the place where the cow was killed 
 was beyond them, it was beyond the village. If the town extended 
 beyond the houses, the defendant should have shown it. The 
 witness did not say that the cow was not killed at a road-cross- 
 ing, but he did state, that it was at a point where there should 
 have been a fence, and as that could not have been true had 
 there been a road-crossing there, it is sufficient to convince the 
 judgment of a reasonable man, that there was no road-crossing 
 there. But several witnesses swore to the value of the cow, 
 without stating her color, size, age, breed, or other peculiarities. 
 This was quite consistent with the universal practice of courts, 
 so far as our experience enables us to judge, and it was for the 
 defendant, if it was deemed important, to have inquired as to 
 these particulars. Everyone is presumed to have some idea of 
 the value of property which is in almost universal use, and it is 
 not necessary to show that a witness is a drover or a butcher, 
 before he is allowed to give an opinion of the value of a cow. 
 If it were a steam engine or a diamond ring, it might be different. 
 * "We think the proof abundant to sustain the action, and 
 the judgment must be affirmed." 
 
 Such, an opinion was well enough twenty years 
 ago, hut it would not do in these days. There would 
 he no presumption now that the houses compose the 
 village, nor would it follow that, because a witness 
 stated a cow was killed at a place where there should 
 have been a fence, she was not killed at a road-cross- 
 ing. Nor could such an action be tried properly, with- 
 out fifteen or twenty written instructions explaining 
 the doctrine of comparative negligence. Indeed, if 
 the same rate of progress in the art of criticism is kept 
 up for the next twenty years, that has been made for 
 the past twenty, we may reasonably expect some 
 appellate court to approve an instruction requiring a 
 cow to "look up and down the track," before attempt- 
 ing to cross, but there might be a dissenting opinion 
 declaring it sufficient if she looked " up or down the 
 
402 INSTRUCTING THE JURY. 
 
 track," according to the direction from which the 
 train was approaching. 
 
 RULE TENTH. 
 
 The court should not send the jury out into the broad 
 field of conjecture, but should confine them to the facts 
 as proven. 
 
 In Ewing v. Runkle, 20 111. 464, Mr. Justice Breese, 
 in delivering the opinion of the court, says : 
 
 " The tenth instruction Has not any evidence, on which to 
 base it, and the court should not send the jury out into the 
 broad field of conjecture, but confine them to the facts as 
 proven, on which alone instructions can be properly raised." 
 
 RULE ELEVENTH. 
 
 Instructions should be concise, and briefly present the 
 points of law alone on which the party relies. 
 
 In Merritt v. Merritt, 20 111. 80, Mr. Justice Breese, 
 in delivering the opinion of the court, says : 
 
 " As to the instructions on behalf of defendant, we may here 
 with great propriety, take occasion to remark, that a practice 
 seems to be growing up to draw out, instructions to a very 
 great length, and injecting into them an argument of the case. 
 This is a bad practice, and should not be encouraged by the 
 courts. Instructions should be concise, and briefly present the 
 point of law alone on which the party relies." 
 
 RULE TWELFTH. 
 
 An instruction which declares the law on the points 
 therein presented is sufficient, although it does not present 
 all the law governing the case. 
 
 In Hessing v. McCloskey, 37 111. 351, Mr. Justice 
 Breese, in delivering the opinion of the court, says : 
 
 "But it is further insisted, the instruction was improper, 
 because it did not tell the jury what was good faith in a con- 
 tract of sale, and what was, in law, an adequate considera- 
 tion. Did the appellant desire the jury should be informed on 
 
RULES FOE TRIAL COURTS. 403 
 
 these points, it was quite easy for him to have asked instruc- 
 tions to enlighten the jury. It is sufficient, if the instructions 
 which the court gives declare the law on the points presented. 
 So far as this instruction went, and to the extent asked, it was 
 a proper instruction. None of the exceptions taken to it can 
 prevail, as it embodies the law of the case, and directed the 
 minds of the jury to the real points in controversy." 
 
 RULE THIRTEENTH. 
 
 An instruction should not be so drawn as to be of 
 doubtful or uncertain meaning. 
 
 In City of Freeport v. Isbell, 83 111. 443, Mr. Justice 
 Craig, in delivering the opinion of the court, says : 
 
 " The instruction, although artfully drawn, we are not pre- 
 pared to say is entirely free from the objection taken. An in- 
 struction should be so prepared as not to be of doubtful or un- 
 certain meaning ; otherwise, the jury may be misled. We are, 
 therefore, inclined to hold the instruction should have been 
 modified or refused." 
 
 RULE FOURTEENTH. 
 
 An instruction should not state the law in the language 
 of the statute. 
 
 See C. & N. W. R'y Co. v. Dimick, 96 111. 42 (ante, p. 
 363). 
 
 RULE FIFTEENTH. 
 
 It would be unheard of to reverse because an instruc- 
 tion was given in the language of the statute. 
 
 See Town of Fox v. Town of Kendall, 97 111. 74 {ante, 
 p. 373). 
 
 RULE SIXTEENTH. 
 
 An instruction should not single out and give undue 
 prominence to a portion of the facts. 
 
 In Moore v. Wright, 90 111. 473, Mr. Justice Scott, in 
 delivering the opinion of the court, says : 
 
 " Both instructions given for plaintiff are objectionable and 
 ought not to have been given. The first of the series directs 
 
404 INSTRUCTING THE JURY. 
 
 the attention of the jury to certain principal facts upon which 
 plaintiff relies, and tells them, if they believe from the evidence, 
 such facts have been proved, they will find for plaintiff. This 
 instruction is wrong, as it only presents a partial view of the 
 facts. It is the duty of the jury to consider all the testimony 
 in the case, as well that which makes for defendant as for plain- 
 tiff, and for the court to direct them to consider certain facts is 
 to give undue importance to them, and is serious error." 
 
 ECLE SEVENTEENTH. 
 
 When a case has been reversed by the supreme court, 
 and the evidence on the second trial is substantially the 
 same as on the first trial, there will be no error in copying 
 an instruction largely from the opinion of the supreme 
 court, delivered in passing upon the merits of the first trial. 
 
 In Kirby v. Wilson, 98 111. 244, Mr. Justice Craig, 
 in delivering the opinion of the court, says : 
 
 " The objection made to instruction No. 5J is, that it was 
 copied largely from the opinion rendered in this case, while the 
 evidence on the present trial is totally different from what the 
 evidence was on the former trial, and hence the opinion cannot 
 control. We do not understand that there is any substantial 
 difference between the evidence introduced on the former trial, 
 and the evidence introduced on the last trial, except that the 
 evidence may be somewhat fuller on some points in the case, 
 than it was in the first trial. There is, however, no such dif- 
 ference in the evidence as to change the rule of law that should 
 govern the case, and what,, when the case was here before, must 
 control now." 
 
 In acting upon this rule, care should be taken by 
 trial judges and counsel, not to construe it as author- 
 izing the copying of an instruction from the opinion of 
 the supreme court delivered in another case, although 
 involving the same questions of law. The dangers of 
 such a construction are shown in a number of cases 
 already cited. At least three-fourths of the mistakes 
 
RULES FOR TRIAL COURTS. 405 
 
 made by the circuit courts, in stating the doctrine of 
 comparative negligence, have been caused by their 
 copying from the opinions of the supreme court. 
 
 RULE EIGHTEENTH. 
 
 In an action for negligence, if the evidence tends to show 
 negligence on the part of the plaintiff or person injured, 
 the instructions must submit to the jury the question of 
 comparative negligence. 
 
 See C, B. & Q. E. E. Co. v. Sykes, 96 111. 162 {ante, 
 p. 20). 
 
 RULE NINETEENTH. 
 
 In an action for negligence, if the evidence does not 
 tend to show gross negligence on the part of the defendant, 
 the instructions must not submit to the jury the question of 
 comparative negligence. 
 
 See C, E. I. & P. E. E. Co. v. Clark, 108 111. lli(ante, 
 p. 33). 
 
 RULE TWENTIETH. 
 
 An instruction, stating that the presumption of negli- 
 gence arising from the violation of an ordinance may be 
 overcome by evidence, should also state in what manner it 
 may be overcome by evidence. 
 
 In Wabash E'y Co. v. Hencks, 91 111. 411, Mr. Jus- 
 tice Walker, in delivering the opinion of the court, 
 says : 
 
 "The appellate court has certified that the evidence was con- 
 flicting, and in such a case it is important that the jury should 
 be accurately instructed. And this second instruction does not 
 require the consideration of comparative negligence by the jury. 
 It is true, it concludes by telling them that the presumption of 
 negligence arising from running the train at a greater rate of 
 speed than ten miles per hour, in the city limits, might be over- 
 come by evidence, but it fails to tell the jury in what manner 
 the presumption may be overcome by evidence, — whether by 
 proving that rate of speed was not negligence, or by the negli- 
 
406 INSTRUCTING THE JURY. 
 
 gence of appellee, or in some other mode. The instruction 
 should have been qualified by stating the rule of comparative 
 negligence, or by referring to the fifth of appellee's instruc- 
 tions." 
 
 RULE TWENTY-FIRST. 
 
 An instruction to find for the defendant should not be 
 given when there is evidence tending to establish the plain- 
 tiff's demand. 
 
 In Stumps v. Kelley, 22 111. 142, Mr. Justice Walker, 
 in delivering the opinion of the court, says : 
 
 "There is no error perceived in refusing to instruct the 
 jury to find for the defendant as in a case of non-suit. Such a 
 practice has never obtained in this state, and this court has 
 held that such a course is not sanctioned by our practice. 
 Again, there was most certainly evidence tending to establish 
 the plaintiff's demand, and whenever that is the case, however 
 slight, it is a question solely for the jury, and not for the court. 
 To hold otherwise would be to usurp the right to try the facts 
 in a case, by a court, when the right is vested in the parties, to 
 have such questions determined by a jury." 
 
 RULE TWENTY-SECOND. 
 
 When the evidence given at the trial, with all infer- 
 ences that the jury could justifiably draw from it, is so in- 
 sufficient to support a verdict for the plaintiff, that such a 
 verdict, if returned, must be set aside, the court is not 
 bound to submit the case to the jury, but may direct a ver- 
 dict for the defendant. 
 
 See Simmons v. Chicago & Tomah R. K Co., 110 
 111. 346 (ante, p. 307). 
 
 RULE TWENTY-THIRD. 
 
 The judge should always abstain from in any manner 
 indicating an opinion as- to the tveight of evidence, unless 
 it is of that character which the law deems conclusive. 
 
 In Frame v. Badger, 79 111. 446, Mr. Justice Walker, 
 in delivering the opinion of the court, says : 
 
RULES FOR TRIAL COURTS. 407 
 
 " The court should always instruct that, if the facts averred 
 in the issue are proved, reciting them, then they should find for 
 the party in whose favor they shall find the facts ; or, if either 
 party holding an affirmative fails to prove the affirmative facts,, 
 the jury may be told that if they so find, they should find 
 against him. But the judge should always abstain from in any 
 manner indicating an opinion as to the weight of evidence, un- 
 less it is of that character which the law deems conclusive." 
 
 RULE TWENTY-FOURTH. 
 
 It is not proper to submit to the jury the construction 
 of a contract. 
 
 In Belden v. Woodmansee, 81 111. 27, Mr. Justice 
 Scholfield, in delivering the opinion of the court, says : 
 
 " The court properly refused this instruction. It was not 
 proper to submit to the jury the question of the plaintiffs 
 rights under the contract. Whether plaintiff had a right 
 under the contract, to keep on shelling, etc., was a question of 
 law to be determined by the court, from a construction of the 
 contract. What are the terms of the contract, is a question of 
 fact for the jury ; but what the legal construction of the con- 
 tract is, must be determined by the court." 
 
 RULE TWENTY-FIFTH. 
 
 An instruction may properly , refer to the indictment 
 for a description of the offense. 
 
 In Parker v. The People, 97 111. 37, Mr. Justice 
 Walker, in delivering the opinion of the court, says : 
 
 "It is urged that the people's instructions were calculated 
 to mislead, because they referred to the indictment for a descrip- 
 tion of the crimes of forgery, and the passing of a forged 
 instrument, instead of setting them out in the language of the 
 statute. In this there was no error. It has been the long and 
 well recognized practice, and we are not aware that it has ever 
 before been questioned. If the accused desired to have a more 
 specific definition of the two offenses, he should have prepared 
 and asked an instruction embodying the language of the statute." 
 
408 INSTRUCTING THE JURY. 
 
 RULE TWENTY-SIXTH. 
 
 It is not cm objectionable practice to say to the jury that, 
 if they find from the evidence that the defendant is guilty, 
 as charged in the declaration, then the plaintiff is entitled 
 to recover, and to define the measure of damages. 
 
 See C, B: & Q. R. R. Co. v. Payne, 59 IlL 542 (ante, 
 p. 374). 
 
 RULE TWENTY-SEVENTH. 
 
 An instruction announcing that if the jury find the 
 defendant guilty of the wrongful act, neglect or default as 
 charged in the declaration, they may find for the plaintiff , 
 and defining the measure of damages, is erroneous. 
 
 See C. & N. W. R'y Co. v. Dimick, 96 111. 42 (ante, 
 p. 363). 
 
 RULE TWENTY-EIGHTH. 
 
 The prosecution or plaintiff is only bound to present the 
 law correctly, in his instructions, applicable to his theory 
 of the case, and is not bound, in every instruction, to antici- 
 pate and exclude every possible defense. 
 
 In Logg v. The People, 92 111. 603, Mr. Justice Schol- 
 fleld, in delivering the opinion of the court, says : 
 
 " We see no substantial objections to the seventh and eighth 
 instructions given at the instance of the People. If the defend- 
 ants, James and John Logg, acting together, struck Amos Means 
 in a riotous manner, as is the hypothesis assumed in the seventh 
 instruction, they could not have been bona fide acting in self- 
 defense on an appearance of danger sufficient to warrant persons 
 of ordinary prudence and caution, in like circumstances, in so 
 acting. 
 
 " If the theory of self-defense had a foundation in the evi- 
 dence, the defendants might, by an instruction, have presented 
 their theory fully. The prosecution is not obliged, in instruc- 
 tions, to anticipate and exclude defenses more definitely than is 
 here done. 
 
 " So, also, if Lowry and Means were endeavoring to separate 
 Hollett and Logg and prevent their quarreling, and while so 
 
RULES FOR TRIAL COURTS. 409 
 
 doing, John Logg and James Logg struck Amos Means, and Will- 
 iam Logg struck Martin Lowry, a riot is prima facie made out. 
 And if there are circumstances of defense, it devolves upon the 
 defendants to show what they are. 
 
 " The prosecution or plaintiff is only obliged to present the 
 law correctly, in his instructions, applicable to his theory of the 
 case, and is not bound, in every instruction, to anticipate and 
 exclude every possible defense." 
 
 RULE TWENTY-NINTH. 
 
 The instructions should limit the recovery to the negli- 
 gence charged in the declaration. 
 
 In C. & A. R. R. Co. v. Mock, 72 111. 141, Mr. Justice 
 Sheldon, in delivering the opinion of the court, says : 
 
 " The second and fifth instructions were, further, too broad 
 in allowing a recovery for negligence in general respects, with- 
 out limitation to the particulars of negligence specified in the 
 declaration." 
 
 The rules applied in determining whether instruc- 
 tions correspond with the declaration, are substantially 
 the same as those applied in determining whether 
 there is a variance between pleadings and proofs. The 
 question of variance between pleadings and proofs 
 arose in City of Bloomington v. Goodrich, 88 111. 558, 
 in which, in an opinion per curiam, it is said : 
 
 "The doctrine is laid down by Chitty (1 Pleadings, 7 Am. 
 ed. 427) that 'if the pleader, though needlessly, describe the 
 tort, and the means adopted in effecting it, with minuteness and 
 particularity, and the proof substantially vary from the state- 
 ment there will be a fatal variance, which will occasion a 
 non-suit.' 
 
 "It is alleged in the declaration in this case that appellee 
 received the injury complained of in consequence of a portion 
 of the sidewalk being out of repair, 'to wit, by some of the 
 planks being broken, so that large and deep holes were in said 
 walk, and the surface of the same became and was, very 
 rough, irregular and uneven, 1 etc. The proof entirely fails to 
 
410 INSTRUCTING THE JURY. 
 
 show that any of the planks in the sidewalk were broken, but, 
 on the contrary, it shows that the only defect in the sidewalk 
 was that two of the planks were removed therefrom. 
 
 " This was a fatal variance between the allegation and proofs. 
 Hilliard's Eemedies for Torts, p. 159, §§9, 10, et seq.; Moss et al. 
 v. Johnson, 22 111. 633 ; Illinois Central Eailroad Co. v. McKee, 
 43 id. 120." 
 
 RULE THIRTIETH. 
 
 Errors in the admission of evidence will be cured by 
 instructions to the jury to disregard such evidence. 
 
 In Daily v. Daily, 64 111. 334, Mr. Justice Walker, 
 in delivering the opinion of the court, says : 
 
 " It is urged that the court below erred in admitting in 
 evidence the deposition of defendant, as he was not a competent 
 witness. We deem it unnecessary to inquire whether or not he 
 was competent, as the court, by full and clear instructions, 
 directed the jury to disregard it, and to find for defendant, 
 unless they found the charge established 'by clear, satisfactory 
 and convincing proof,' other than the deposition. This proposi- 
 tion was clearly stated to the jury, in several forms and in differ- 
 ent instructions." 
 
 See also Kennedy v. The People, 40 111. 489 (ante, 
 p. 381). 
 
 RULE THIRTY-FIRST. 
 
 Errors in the admission of evidence will not be cured 
 by instructions to the jury to disregard such evidence. 
 
 In L., B. & M. R. R. Co. v. Winslow, 66 111. 222, Mr. 
 Justice Breese, in delivering the opinion of the court, 
 
 says : 
 
 "Another point made by appellants is, that improper evi- 
 dence was introduced by appellees against the objection of appel- 
 lants. We are satisfied the evidence of the violent entry into 
 the, premises, in which was detailed at great length the forcible 
 acts of the employes of appellants upon the premises, going to 
 show a willful trespass by them, should not have gone to the 
 jury. Under the excitement naturally produced by such testi- 
 
EULES FOE TEIAL OOUETS. 411 
 
 mony, a jury would be apt to lose sight of the real matter in con- 
 troversy, and instead of allowing just compensation for the value 
 of property taken, or to be taken, under a law of the state, for 
 a legitimate purpose, amerce the supposed aggressors in vindic- 
 tive damages as for a willful trespass. It is true, the court, in a 
 proper instruction to the jury, directed them to disregard all 
 testimony of that character, but the wrong was done, and it is 
 not always easy to remove from the minds of a jury impressions 
 produced by testimony which the court has admitted against ob- 
 jections. It is of the utmost importance, in trials by jury, that 
 the testimony given to them should be free from all exception. 
 To effect this purpose, rules framed with great skill and which 
 have received the approval of all courts, have existed for years, 
 and which we are not at liberty, did we so desire, to disregard. 
 
 " The inevitable tendency of such evidence is to mislead, 
 and the extent of the mischief produced by it cannot well be 
 calculated. We are compelled to believe, from the amount of 
 this verdict, that this testimony had a great influence on the 
 minds of the jury, inducing them, instead of assessing just 
 compensation for property taken for railroad purposes, to mulct 
 the corporation in damages for a willful trespass. The jury were 
 misled by this testimony to do injustice and their verdict must 
 be set aside. 
 
 " We may say, however, if, upon the whole record in any 
 case, we can perceive that justice has been done, we might 
 not be inclined to reverse a judgment for the cause alleged. 
 Here, justice has not been done, and we have no hesitation in 
 reversing the judgment for the causes stated, and remanding 
 the cause for further proceedings consistent with this opinion." 
 
 In Howe Machine Co. v. Rosine, 87 111. 106, Mr. 
 Justice Dickey, in delivering the opinion of the court, 
 says: 
 
 " It is insisted that this was obviated by an instruction of 
 the court, afterwards given, directing the jury to give this fact 
 no consideration. In some cases, where irrelevant evidence has 
 been admitted, and the jury afterward properly instructed, it 
 may be that the judgment need not be reversed on that account. 
 This cannot properly be done, unless the case is such that it 
 
412 INSTRUCTING THE JURY. 
 
 clearly appears that no injustice or wrong has been done to the 
 party complaining of the error. Such is not this case. If the 
 proofs in this case were such that, had the Verdict been the 
 other way, we could see that it ought to be set aside, we might 
 say that no harm has been done by the error ; but it is not. 
 
 "For the error indicated the judgment must be reversed, 
 and the cause remanded for a new trial." 
 
 Were this rule thoroughly understood by circuit 
 judges, a great deal of time and unnecessary expense 
 might often be saved, especially in cases occupying 
 several days. If, after a case has been on trial for 
 some considerable time, the judge discovers that he 
 has committed an error in the admission of evidence, 
 which cannot be cured by an instruction, because the 
 case is closely contested on the facts, he could dis- 
 charge the jury and begin the case anew. And this 
 process could be repeated, until he had succeeded in 
 trying the case without error. While it is true that 
 such a method of trying causes might be somewhat 
 tedious, yet it would be far better for the public and 
 for the parties litigant, than it would be to conclude 
 the trial, after the discovery of the error, and be com- 
 pelled to grant a new trial, or put the successful party 
 .to the loss of time and the expense necessarily attend- 
 ant upon a reversal of the judgment by the appellate 
 or supreme court. 
 
 Perhaps, however, it would be just as well for the 
 supreme court to amend this thirty-first rule so that 
 it shall read as follows : " All errors in the admission 
 of evidence shall be deemed obviated by instructions 
 to the jury to disregard such evidence, unless it clearly 
 appears that injustice has been done by the verdict." 
 It is, no doubt, very annoying to counsel to have evi- 
 dence admitted which is incompetent and improper, 
 and calculated to prejudice their case before the jury, 
 and it frequently happens that evidence thus admitted 
 
RULES FOE TRIAL COURTS. 413 
 
 has some effect upon the jury, notwithstanding they 
 are instructed to disregard it. But "as man, when 
 representing the highest state of culture and civiliza- 
 tion, is conceded to be imperfect, it necessarily follows, 
 on the principle a stream can never rise higher than 
 its fountain, all his works are to some extent imper- 
 fect." Probably there is no judge living, who has so 
 thoroughly mastered the rules of evidence, that he 
 will not commit some error in the admission or re- 
 jection of testimony, in the haste and hurry of a nisi 
 prius trial, and certainly he would be likely to do so, 
 if he lived in this state, where he must not only under- 
 stand the rules of evidence as laid down in the text- 
 books, but must also be thoroughly familiar with a 
 multitude of conflicting decisions. Under such cir- 
 cumstances an endeavor should be made- to render the 
 administration of the law practical, and when the 
 trial judge has done all in his power to correct the 
 errors in the admission or rejection of evidence, by 
 proper instructions to the jury, no judgment should be 
 reversed, unless it clearly appears that the verdict is 
 contrary to the evidence, in which case it should be 
 annulled because it is wrong in itself, and not because 
 errors intervened in the steps preliminary to its ren- 
 dition. 
 
 RULE THIRTY-SECOND. 
 
 Instructions may be refused where others embodying 
 the same principles have been given. 
 
 In Keeler v. Stuppe, 86 111. 311, Mr. Justice Schol- 
 field, in delivering the opinion of the court, says : 
 
 " It is not claimed, as lias been seen, that appellants them- 
 selves negotiated the sale, and we are not aware of any hypothe- 
 sis having a basis in the evidence, other than those referred to 
 as embraced in the instructions given, upon which appellants 
 could reasonably insist upon a right to recover. There was no 
 necessity for repeating the same idea in different instructions, 
 
414 INSTRUCTING THE JURY. 
 
 in language varying only in form. When the law applicable to 
 a case is given in clear and intelligible language, the sole 
 function of instructions is performed. The court is not only 
 under no obligation to permit a case to be argued through in- 
 structions, but is bound to prohibit it." 
 
 RULE THIRTY-THIRD. 
 
 Instructions should not be misleading. 
 
 In Bailey v. Godfrey, 54 111. 509, Mr. Justice Scott, 
 in delivering the opinion of the court, says . 
 
 "We are unable to perceive that the rule attempted to be 
 asserted in the instruction, has any application to the case be- 
 fore us — certainly not in the form as there stated. An instruc- 
 tion may often contain a correct abstract principle of law, yet 
 may be so worded as to tend to mislead a jury. The true test 
 to apply to this instruction, if we admit it states a correct prin- 
 ciple of law, is, did it tend, in this instance, to mislead the jury 
 on the facts submitted to them in this particular case" ? 
 
 RULE THIRTY-FOURTH. 
 
 The judge should not instruct the jury to find for the 
 plaintiff, unless substantial justice is done thereby. 
 
 In Hubner v. Feige, 90 111. 212, Mr. Justice Baker, 
 in delivering the opinion of the court, says : 
 
 " The court, of its own motion, instructed the jury, in sub- 
 stance, that under the facts proven in the case, the law was for 
 the plaintiff, and that their verdict should be for him. We can- 
 not approve of this mode of instructing a jury. Such form of 
 instruction is always objectionable. Peoria Ins. Co. v. Frost, 
 37 111. 333. Under our law the jury are the judges of the evi- 
 dence. It is an invasion of the rights of the jury, and an usurpa- 
 tion of their functions, for the court to determine for them 
 what facts are proven, or attempt to tell them what their ver- 
 dict should be on a question of fact. A court can always so in- 
 struct the jury that there can be no honest mistake on their 
 part as to what the law is, as applicable to the facts in proof, 
 and that, too, without assuming to draw inferences from the 
 evidence, or to determine what it does or does not prove. The 
 
RULES FOE TRIAL COURTS. 415 
 
 court may inform the jury what facts will sustain the issue, but 
 may not determine whether such facts have been established. 
 The court is for the law, and the jury for the fact. 
 
 " However, we can clearly see in the case now before us,, 
 that either with or without this instruction, the verdict of the 
 jury could not have been otherwise than what it was. The 
 holdings of the court had destroyed the theories of the defense, 
 and no testimony even tending to establish them was any longer 
 before the jury. There was no material fact of appellee's case 
 in dispute. The evidence of appellant himself upon the witness 
 stand established and proved his opponent's cause of action. It 
 is evident the error of the court prejudiced no right of appellant. 
 Upon a new trial the verdict would necessarily be the same. 
 Substantial justice has been done between the parties, and ap- 
 pellant has no just cause of complaint. It is the long estab- 
 lished doctrine of this court, that in cases of such character 
 judgments will not be reversed, even though erroneous instruc- 
 tions may have been given." 
 
 RULE THIRTY-FIFTH. 
 
 The jury are presumed to understand instructions as 
 they commonly impress the mind. 
 
 In Mass. M. L. Ins. Co. v. Eobinson, 98 111. 331, Mr. 
 Justice Scott, in delivering the opinion of the court, 
 says : 
 
 " The criticism made on the first and second instructions is, 
 they take from the jury the right of determining for themselves 
 the materiality of facts alleged to have been concealed by the 
 assured. This is not a correct reading of the instructions. 
 .Rightly understood, they make no such impression, and the 
 presumption will be indulged the jury understood them as they 
 commonly impress the mind. It may be the fourth instruction 
 is, in a measure, obnoxious to the criticism made upon it. Con- 
 sidering it in connection with other instructions given, as it 
 was the duty of the jury to do, it was not so faulty as to have 
 misled them on the real issues involved. Entire accuracy in 
 expressions of the law in instructions given on the trial of 
 causes, is not to be expected in every case, and the rule is of 
 
416 INSTRUCTING THE JURY. 
 
 general application, that every slight error that may appear will 
 not be a sufficient warrant for reversing the judgment." 
 
 RULE THIRTY-SIXTH. 
 
 There is no error in giving or refusing instructions 
 containing mere abstract propositions of law. 
 
 In Ryan v. Donnelly, 71 111. 103, Mr. Justice Craig, 
 in delivering the opinion of the court, says : 
 
 "The second point made by the defendants is, the court 
 gave improper instructions on behalf of plaintiff. It is true, 
 the first instruction given contains a mere abstract proposition 
 of law, but the giving or refusing of such an instruction is not 
 error. Parker v. Fergus, 52 111. 420." 
 
 In Bandalow v. The People, 90 111. 220, Mr. Chief 
 Justice Craig, in delivering the opinion of the court, 
 says: 
 
 " We are of opinion, under a fair construction of the statute, 
 the instructions were, in substance, correct. Exception was 
 also taken to the seventh instruction. It merely, however, an- 
 nounces what the statute, in a certain case, declares to be the 
 law ; and while we are unable to see what bearing it has on the 
 case, yet we do not consider that it was calculated in the least 
 to mislead the jury, and for this reason we cannot reverse, 
 although the instruction has no proper place in the case." 
 
 RULE THIRTY-SEVENTH. 
 
 An instruction should not assume the existence of facts 
 not proven. 
 
 In Durham v. Goodwin, 54 111. 471, Mr. Justice 
 Scott, in delivering the opinion of fJb.e court, says : 
 
 " The second of the above instructions is obnoxious to the 
 same objection, and to the further objection that it assumes, by 
 its phraseology, that other stock ' run together in a drove on de- 
 fendant's farm.' If this was a fact, it ought to have been left 
 to the consideration and finding of the jury. This court has 
 repeatedly held, in numerous cases, that an instruction which 
 assumes a certain fact to be proven in the case is erroneous. It 
 
RULES FOB, TRIAL COURTS. 417 
 
 is the province of the court to state the law on]y, and leave the 
 finding of the facts to the jury." 
 
 RULE THIRTY-EIGHTH. 
 
 The attempt to connect discordant propositions always 
 tends to confusion. 
 
 In C, B. & Q. R. R. Co. v. Johnson, 103 111. 512, Mr. 
 Justice Scholfield, in delivering the opinion of the 
 court, says: 
 
 '"These instructions are clearly erroneous in the respect 
 pointed out, and must necessarily have misled the jury as to the 
 doctrine of comparative negligence. There is in them, more- 
 over, a manifest attempt to connect discordant propositions, 
 which always tends to confusion. Attempts to blend separate 
 and distinct legal propositions in the same sentence or para- 
 graph usually cause error, in that such blending tends to con- 
 fuse and mislead, and should be avoided." 
 
 The present lamentable condition of the law as to 
 comparative negligence, is the result of an attempt to 
 harmonize the discordant views of the judges of the 
 supreme court. When the court was composed of 
 three judges, there was harmony in their views, and in 
 the expression of them, but when four new judges 
 were added, who were opposed to that doctrine, there 
 began to be trouble and discord, and there has been 
 nothing but confusion ever since. 
 
 RULE THIRTY-NINTH. 
 
 An instruction should not he involved. 
 See C, B. & Q. R. R. Co. v. Sykes, 96 111. 162 (ante, 
 p. 22). 
 
 RULE FORTIETH. 
 
 The only safe rule for a circuit court is to harmonize 
 the instructions before they are given to the jury. 
 
 In Quinn v. Donovan, 85 111. 196, Mr. Justice Craig, 
 in delivering the opinion of the court, says : 
 
418 INSTRUCTING THE JURY. 
 
 "It is impossible to know whether the jury followed the in- 
 structions given for the one side or the other. If they adopted, 
 as a rule of their deliberations, the doctrine announced in 
 appellee's instructions, they were surely misled. The only safe 
 rule for a circuit court is, to harmonize the instructions before 
 they are given to the jury. If this is not done, the instructions 
 which should be a guide to the jury, only serve to confuse." 
 
 To say that this is the only safe rule for the circuit 
 court, is putting it a little too strongly, for not more 
 than one-half of the above forty rules can be justly 
 said to be unsafe to be followed by counsel and the 
 trial courts. 
 
 Such are a few of the rules laid down by the 
 supreme court, to guide the circuit judge in the giv- 
 ing and refusing of instructions. Others might be 
 mentioned, but it is deemed unnecessary. If a cir- 
 cuit judge can master them all, and learn to correctly 
 apply them, and can also foresee what others may be 
 adopted, he may hope to be reasonably successful in 
 the discharge of the duties of his office. But they are 
 so numerous, and their application in many cases so 
 difficult to determine, that it rarely happens that a 
 complicated and closely contested case is tried, with 1 
 out one or more of them being infringed upon, no 
 matter how able and learned the trial judge may be. 
 It is plain to every intelligent observer that, with such 
 a system of instructing the jury, the administration of 
 justice, at least so far as jury trials are concerned, 
 could not but fall, as it has fallen, into a very unsatis- 
 factory state. . 
 
 Bad as, in itself, is the system of instructing in 
 writing, with its multitude of rules by which justice 
 is sacrificed to mere technicalities, which in nowise 
 affect the merits of cases, it has been rendered still 
 worse by the provision, embodied in the practice act 
 
EXCEPTIONS TO INSTRUCTIONS. 419 
 
 of 1874, that " exceptions to the giving or refusing any 
 instruction may be entered at any time before the 
 entry of final judgment in the case." Prior to the 
 enactment of that act exceptions were required to be 
 taken at the time the instructions were given. Such, 
 also, was the practice when oral charges were allowed, 
 as will be seen by reference to decided cases. 
 
 In Leigh v. Hodges, 3 Scam. 17, Mr. Justice Breese, 
 in delivering the opinion of the court, says : 
 
 " As to the second error assigned, it will be seen by an in- 
 spection of tbe record, that the alleged misdirection of the 
 court is not urged as a reason for a new trial, and that no 
 exception was taken to it on the trial. The only reasons 
 assigned for a new trial are, that the jury found against the 
 evidence, and against the instructions of the court. It is a well 
 settled rule, that exceptions to the charge of the judge should 
 be taken at the time the charge is given, and before the jury 
 retire, as thereby an opportunity is at once afforded the judge 
 for more reflection, to correct any error into which he may be 
 precipitated, in the hurry of trials on the circuit." 
 
 In Hill i7. Ward, 2 Gilm. 293, Mr. Justice Purple, in 
 delivering the opinion of the court, says : 
 
 " The court is of opinion, that the instructions desired by 
 the plaintiff's counsel in this case were proper and pertinent, 
 and that if an exception had been taken at the time they were 
 refused, such refusal would have been error. This, as appears 
 from the record, was not done, and it was not until after the 
 jury had returned their verdict, that the plaintiff sought in- 
 directly on a motion for a new trial to except to the ruling of 
 the court in refusing these instructions, with which at the time 
 of the decision he manifested no dissatisfaction. The doctrine 
 that a party cannot except to the opinion of a court in giving 
 or refusing instructions, except at the time they are given or 
 refused, is distinctly settled by this court in the case of Leigh v. 
 Hodges, 3 Scam. 15, and it needs no argument nor authority to 
 prove, that a party cannot be permitted to assign for error in 
 
420 INSTRUCTING THE JURY. 
 
 this court any decision or opinion of the circuit court made or 
 expressed during the progress of a cause, in the propriety of 
 which, at the time of its occurrence, he silently acquiesced." 
 
 It thus appears that when oral charges were allowed, 
 the trial judge was entitled to the aid of counsel, in 
 charging the jury. When his charge was concluded, 
 either party aggrieved was required then and there, 
 and before the jury retired, to state wherein error had 
 been committed, and- ask its correction, or else forever 
 after hold his peace. But how is it now ? Take, for 
 example, the trial of a suit brought by an individual 
 against a railroad company, to recover damages for 
 personal injuries. The plaintiff's counsel, knowing 
 that the appellate and supreme courts are disposed, in 
 this class of cases, to be very technical, and that it is 
 extremely difficult to draw any instruction, which will 
 not conflict with one or more of the multitude of rules 
 that have been announced, request of the court but 
 few, if any, instructions. To secure a trial of the 
 cause without error, all their energies are directed. 
 On the other hand, counsel for the defendant, fearing 
 an unfavorable verdict, and not trusting to the honesty 
 and fairness of the judge, and expecting him to set it 
 aside, if unjust, direct all their energies to "getting 
 error into the record," as the saying is. They secure 
 the attendance of a stenographer to take down the 
 evidence, as well as the remarks of the opposing coun- 
 sel and of the court. They interpose numerous objec- 
 tions to the admission of the evidence, and except to 
 everything that is done prior to the instructing of the 
 jury. They prepare from twenty to forty written 
 instructions, to be passed upon by the judge, in the 
 hope, not that they will be given as asked, but that in 
 the refusal or modification of some of them, the court 
 may commit some trivial error, for which the appellate 
 or supreme court will reverse whatever judgment may 
 
EXCEPTIONS TO INSTRUCTIONS. 421 
 
 be entered. Notwithstanding they may observe that the 
 judge has committed^ or is about to commit, an error, 
 which would be corrected or avoided, were his atten- 
 tion called to it, they quietly lie by, suffer the error to 
 be committed, or to go uncorrected, and then reap the 
 fruits of their dishonesty by securing, through excep- 
 tions taken after the verdict is rendered, the reversal 
 of the adverse judgment that may follow. 
 
 Such are the disreputable proceedings that are per- 
 mitted and encouraged by this statute. While the 
 courts are constantly applying the doctrine of estop- 
 pel to transactions had outside of the court-room, they 
 are prohibited by law from applying it to those which 
 occur in the very temple of justice. Judge Ford is 
 said to have once declared that lawyers were divided 
 into two classes : first, those who lived by their prac- 
 tice ; and, second, those who lived by their practices. 
 Evidently it was for the latter class that these statutes 
 were enacted. 
 
 There are and can be no honest differences of opin- 
 ion among intelligent members of the profession, as 
 to the utter viciousness of our method of instructing 
 juries, and of a great many of the rules by which the 
 propriety of instructions is determined. But, although 
 all may concur in the view that evils exist, there may 
 be a wide difference of opinion as to the remedy best 
 adapted to their eradication. What, then, shall the 
 remedy be ? 
 
 Under the law, as it now stands, which requires 
 instructions to be in writing, and which permits excep- 
 tions to the giving or refusing of instructions to be 
 taken at any time before final judgment, it is to the 
 interest of the party who may anticipate an unfavor- 
 able verdict, to be tricky and dishonest, to deceive 
 and entrap the judge into stating the law incorrectly, 
 rather than to be honest and fair, and to aid him in 
 
422 INSTRUCTING THE JURY. 
 
 stating it correctly, or as the party contends it should 
 be stated. It is for this reason, among others, that the 
 system is vicious. The first object to be attained, 
 therefore, in constructing a system of practice, is to 
 compel both parties to inform the judge before the jury 
 are instructed, or before they retire, what propositions 
 of law they desire to be given to the jury, and what 
 propositions, offered or given, they deem unsound, to 
 the end that the errors of the court shall be reduced 
 to those, and those only, which are the result of a 
 difference of opinion between court and counsel, which 
 difference of opinion is expressly made known to the 
 judge, and shall not include those committed inadvert- 
 ently, and which would be at once corrected, if the atten- 
 tion of the court were called to them. In other words, 
 the law should be so framed that no litigant could 
 demand relief from an appellate court for errors com- 
 mitted by the trial court, unless he could affirmatively 
 show that the errors complained of were committed 
 against his express protest. The place to secure a proper 
 trial of a cause is in the trial court, and no litigant should 
 be afforded relief from the consequences of a trial in 
 such court, unless he can make it satisfactorily appear 
 that he has used due and proper diligence to secure a 
 fair trial, and could not. 
 
 Another object to be accomplished is, to secure 
 instructions from the court, which the jury can com- 
 prehend and be able to apply to the evidence intro- 
 duced before them. This is scarcely possible under a 
 system which requires the giving to the jury of from 
 twenty to forty written propositions of law, discon- 
 nected from each other, and in many cases conflicting 
 and unintelligible, with no statement of what the 
 evidence is that has been introduced by the parties, 
 and to which these propositions of law must be 
 applied. 
 
PEOPQSED CHANGE OF LAW. 423 
 
 These being the evils to be remedied and the ends to 
 accomplish, so far as instructing the jury is concerned, 
 the following modifications of existing laws are sug- 
 gested as suited to the purpose. 
 
 First, the law requiring instructions to be in writ- 
 ing should be repealed. 
 
 Second, the judge should be permitted to charge the 
 jury as to the law, either orally or in writing, or both, 
 at his discretion, and to give such a statement of the 
 evidence introduced by the respective parties, without 
 intimating any opinion as to its weight* as he may 
 deem necessary to enable the jury to correctly apply 
 the principles of law stated in the charge. 
 
 Third, the parties should be permitted to furnish 
 requests to charge, which requests may be in writing 
 or oral, as the judge may by rule require. 
 
 Fourth, all exceptions to the charge should be spe- 
 cific, and should be made before the jury retire, and 
 no error in the charge not thus excepted to, should be 
 ground for a new trial or for the reversal of a judg- 
 ment. 
 
 Fifth, no judgment should be reversed for errors in 
 the charge thus excepted to, if the charge, when con- 
 sidered as a whole, states the law applicable to the 
 case with substantial accuracy, nor unless it appears 
 probable to the reviewing court that the jury were 
 misled thereby. 
 
 The reasons which should induce the legislature to 
 repeal the law requiring instructions to be in writing, 
 have already been sufficiently stated. It was passed 
 for the purpose of degrading the judicial department 
 of the government, and it has accomplished that pur- 
 pose only too well. It was an unwarranted interfer- 
 ence by the legislature with the personal administra- 
 tion of the judge in the duties of his office, and has 
 resulted in causing justice to be sacrificed to mere 
 
424 INSTRUCTING: THE JURY. 
 
 technicalities. There is, however, among the mem- 
 bers of the bar, a strong feeling against the repeal of 
 the law, and the arguments used against such repeal, 
 however unworthy of consideration they may seem, 
 cannot be passed by without notice, for lawyers are 
 very much like judges and juries, who often decide 
 cases upon points having no real bearing upon the 
 merits. 
 
 First, it is said it would, in many cases, be impossi- 
 ble to procure a bill of exceptions containing an accu- 
 rate statement of the judge's charge, and that the 
 charge might be so long that the jury would not get 
 the full benefit of it by hearing it. These objections are 
 stated by Mr. Thompson in his work on charging the 
 jury, § 103, as follows : 
 
 "But where judges are permitted to give oral charges to 
 juries, great difficulty and embarrassment frequently arise in 
 settling bills of exceptions. Unless a stenographer is present 
 to take down the precise language used by the judge, nothing 
 more than the main points of his charge can be preserved in 
 writing. Now, after the trial is over, the judge may discover 
 that he has put his foot in it, so to speak ; and yet his pride of 
 individual opinion may be such as to prevent him from acknowl- 
 edging his error, or from signing, in a bill of exceptions, a fair 
 statement of what he did say. Moreover, the charge of the 
 judge, particularly where the points in controversy are numer- 
 ous, and where the mass of evidence is great, may be so long 
 that the jury cannot get the full effect of it merely by hearing 
 it repeated once. It is too apt to go in at one ear of the jury 
 and out at the other, and to produce wrangles in the jury-room 
 as to what the judge said, and to bring the jury back into the 
 court, to be reinstructed. His honor has now ha"d time to think 
 further upon the case. Perhaps he has had his dinner, which, 
 as is well known, may often make a great difference with 
 one's views of a particular question, — for ' your hungry judge 
 will hang the guiltless, rather than eat his mutton cold,' — and 
 any judge will be more tolerant as to an alleged fraud, or 
 
PROPOSED CHANGE OF LAW. 425 
 
 other misconduct, on a full stomach, than when his stomach 
 is empty, — and he explains to the jury the instructions which 
 he first gave them, either in a manner which does not explain, 
 or else in a manner which makes them very different from what 
 they were when he first gave them." 
 
 Our answer to the first of these objections is, that 
 in all causes of importance a stenographer can be 
 secured to take down the charge. Indeed, if it is 
 deemed conducive to the proper administration of 
 justice, a stenographer can be employed in every case. 
 The question of expense ought to be of little conse- 
 quence in determining methods of procedure. The 
 only question should be, what is the best method ? 
 The mistrials caused by our present defective system 
 of practice, and which would not occur under a proper 
 system, cost the people of the state, including the par- 
 ties litigant and the witnesses, annually, many times 
 the amount that would be necessary to pay a steno- 
 grapher for taking down and writing out, not only the 
 judge's charge, but the testimony of the witnesses. A 
 court of justice should be conducted upon sound busi- 
 ness principles, and it is quite evident that no business 
 man in these days could ever be successful, who, if his 
 business were half as important as that of a court, and 
 one that required considerable correspondence, would 
 not employ a stenographer. 
 
 It would undoubtedly be a matter of some diffi- 
 culty to induce the legislature to pass a law authorizing 
 the courts to employ stenographers when necessary. 
 The experiment has been repeatedly tried, and unsuc- 
 cessfully, for the reason that there are too many men 
 sent to the legislature who are penny wise and pound 
 foolish, and who imagine they have done a great ser- 
 vice to their constituents, in defeating what they sup- 
 pose to be a raid upon the treasury by short-hand 
 reporters. If such men could be made to comprehend 
 
426 INSTRUCTING THE JUET. 
 
 that the measure suggested would, in the end, result 
 in a saving of expense by the state, and by the coun- 
 ties which are compelled to pay the expenses of the 
 courts, that it would tend to make the administration 
 of justice respectable, and that it would go a great 
 ways toward placing poor litigants upon an equal loot- 
 ing, in our courts, with rich and powerful corporations, 
 it would be an easy matter to secure the passage of a 
 proper law. 
 
 Another answer to this first olbjection to oral 
 charges is that, if a stenographer cannot be employed, 
 a reasonably accurate statement of the charge can be 
 written out. Certainly no reason is perceived why the 
 charge cannot be written out with as much accuracy 
 as the evidence. The argument that the judge's pride 
 of opinion would prevent him from signing a fair bill 
 of exceptions, is one which ought not to be considered, 
 excepting when he becomes a candidate for re-election. 
 The most serious objection to this style of argument is 
 that, if legislative acts must be framed with a view to 
 the prevention of fraud on the part of the judge, all 
 courts might as well be abolished. Honest and j.ust 
 decisions cannot be expected from dishonest judges, 
 no matter what laws the legislature may pass; and no 
 law regulating the practice of the courts, when such 
 law presupposes dishonesty in the judiciary, can 
 accomplish any other purpose than to bring the ad- 
 ministration of justice into public contempt and ridi- 
 cule. 
 
 The answer to the objection that the jury would 
 not get the full benefit of a lengthy charge by simply 
 hearing it once is, that, by the same reasoning, the 
 legislature would be justified in passing a law requir- 
 ing the arguments of counsel, and the testimony of 
 the witnesses to be written out and taken by the jury 
 in their retirement. Yet no one has ever been heard 
 
PROPOSED CHANGE OF LAW. 427 
 
 to advocate any such law. If the charge, generally of 
 but a few minutes length, is likely to go in one ear 
 and out of the other, what is likely to become of the 
 testimony of the witnesses given, perhaps, during a 
 period of several days? If wrangles occur in the jury 
 room over what the judge has said, will they not also 
 occur over what the witnesses have testified to ? Every 
 lawyer of experience knows that wrangles often occur 
 as to what written instructions mean. 
 
 It is exceedingly strange these objections have 
 never been urged in England, and in those states of 
 the Union where the judges charge the jury orally. 
 They are only heard in those states where instructions 
 are required to be in writing. And it can also be 
 truthfully said, that it is in those states where juries 
 are instructed in writing, that there is the most com- 
 plaint of evils resulting from trial by jury, and the 
 most fault found with the decisions of the courts. 
 
 A second objection to oral charges is, that there 
 are many judges who would be incapable of making 
 an oral charge which would be sustained upon appeal. 
 
 The answer to this objection is, that there are no 
 judges in this state who are skillful enough to pass 
 upon written instructions, so that more than one out 
 of four of their judgments, in railroad cases, will be 
 sustained upon appeal, and surely matters could not 
 be much worse if oral charges were allowed. Another 
 answer is, that laws which are framed upon the 
 assumption of the judge's incompetency to properly 
 discharge the duties of his office, are no better than 
 those which presuppose his dishonesty. 
 
 If the judge is permitted to charge the jury orally 
 as to the law, he should also be permitted to give such 
 a statement of the nature of the case, and of the facts 
 which the evidence tends to prove, as will make 
 his charge intelligible. In nearly all cases the con- 
 
428 INSTRUCTING THE JURY. 
 
 troverted questions of fact are few in number, and the 
 judge should direct the attention of the jury to the evi- 
 dence bearing upon them. Without such a statement, 
 a charge would in many cases be unintelligible to the 
 jury, and the statement can and should be so made as 
 not to convey to the jury any intimation of the judge's 
 views of the weight of the evidence. If it be said that 
 the judge might be unfair in such charge, the answer 
 is that correct rules of practice must be based upon 
 the assumption that the judge will treat both parties 
 fairly, and, if he does not, there is a remedy by an ex- 
 ception and an appeal. In Massachusetts and in 
 several other states, the law provides that the judge 
 shall' not charge the jury as to the facts, but may state 
 the evidence and declare the law, and we hear of but 
 little complaint in those states that judges are unfair, 
 or that such a system of charging the jury is unsatis- 
 factory. 
 
 When the judge is permitted to charge the jury 
 orally, a party desiring instructions upon any point 
 can present requests to charge covering such point, 
 and if the request is refused, or not substantially 
 embodied in the charge, he may, by exception, save 
 his question for the appellate court. 
 
 The requirement that exceptions to the charge 
 should ,be specific, and should be made before the jury 
 retire, would prevent the dishonesty and trickery now 
 practiced under the existing system. It would com- 
 pel both parties to treat the judge fairly, and would 
 enable the appellate court to apply strictly the doc- 
 trine of estoppel. Were it so applied, there would be 
 no more reversals of judgments, because the jury were 
 not told they must believe "from the evidence,' or were 
 told they must be "satisfied" from the evidence, or be- 
 cause a controverted fact was, in a single instruction, 
 apparently assumed as true, or on any other similar 
 
PROPOSED CHANGE OE LAW. 429 
 
 ground not affecting the verdict, but the supreme and 
 appellate courts would be confined in their decisions 
 to questions of law, and would not waste their time in 
 deciding mere questions of grammar, for it is to be 
 assumed that no circuit judge could be found, who, 
 upon being informed by counsel that he had commit- 
 ted an error by omitting to tell the jury to believe 
 "from the evidence," or by telling them to be "satis- 
 fied from the evidence," etc., etc., would not at once 
 correct such error, though it may be a matter of grave 
 doubt whether an intelligent lawyer could be found, 
 who would ask for its correction. 
 
 The principal objection urged against the require- 
 ment that exceptions to the charge should be specific, 
 and be taken before the jury retire, is that it would be 
 too great a tax upon the capacity of many attorneys 
 to require them, after listening to an oral charge, to 
 specify the particular portions to which exceptions 
 were desired to be taken. It must be admitted that it 
 would be far easier for a great many lawyers to have 
 the charge given in writing, and be allowed several 
 weeks' time to subject it to a critical examination, for 
 the purpose of discovering some defect, and it is very 
 advantageous for the defeated party to be able to ob- 
 tain a new trial for such defect. But the question is 
 not what is the easiest way to practice law, and to 
 secure the nullification of judgments, but it is, how 
 shall the practice of the law be made an honorable 
 occupation, one in which ability and integrity shall be 
 of more avail than cunning and trickery, and how 
 shall the errors committed by the trial judge be re- 
 duced to those only, which consist of rulings made 
 with the full knowledge on the part of the judge that 
 they are disapproved of by counsel. It is something 
 of a tax upon the judge to charge a jury as to the law 
 of a case, and he is justly entitled to the aid of coun- 
 
430 INSTRUCTING THE JURY. 
 
 sel, and if litigants will not employ competent coun- 
 sel, they ought to expect to suffer some disadvantages. 
 
 Either these exceptions should be made before the 
 jury retire, or the rules of practice should be made 
 harmonious and uniform, and the statute should pro- 
 vide that exceptions to the action of the court in the 
 admission of evidence, might be taken at any time be- 
 fore final judgment, and that it should not be neces- 
 sary that objections to the admission of evidence 
 should be made upon the trial. Such a rule would not 
 differ in principle, or in propriety, from the present 
 practice of allowing exceptions to the giving of in- 
 structions to be taken at any time before final judg- 
 ment. Above all things let us have harmony. 
 
 Finally, the practice of reversing judgments be- 
 cause errors that have been committed might have 
 affected the result, should be abandoned. No more 
 vicious rule than this was ever promulgated by any 
 reviewing court. It renders a proper administration 
 of justice almost impossible. While the party against 
 whom errors in the instructions have been committed, 
 should not be compelled to show that they must have 
 produced a verdict that would not otherwise have been 
 rendered, still the court should, before reversing the 
 judgment, be able to say such errors probably affected 
 the result. 
 
 To secure the passage of a law permitting oral in- 
 structions, will no doubt be a matter of some diffi- 
 culty, owing to the natural prejudice of the legal fra- 
 ternity against innovations. It should, however, be 
 borne in mind that the measures above proposed are 
 not so much innovations, as they are measures to do 
 away with innovations already made. The act requir- 
 ing written instructions was itself an innovation of 
 the most vicious character, the ill-effects of which are 
 patent to every observer. It is for this reason that 
 
AN ORAL CHARGE. 431 
 
 the act should be abolished and the matter of instruct- 
 ing the jury relegated to the courts, to whom it pro- 
 perly belongs. 
 
 Much more might, with propriety, be said upon 
 this subject, but it is believed to be unnecessary to 
 say anything further than to invite the reader to con- 
 sider the specimens of oral and written instructions, 
 which will now be given to illustrate the characteris- 
 tics of the two systems. 
 
 In Railroad Company v. Glaamon, 15 Wall. 401, the 
 case was this : 
 
 One of the drivers of the Washington & George- 
 town Railway Company — a company chartered by Con- 
 gress to run cars through streets of the cities of Wash- 
 ington and Georgetown — was, on a morning of April, 
 1868, driving a car through a populous portion of the 
 latter place. Some person was standing beside him 
 on the front platform of the car. Instead of looking 
 at his horses and before him, he turned his face round 
 and began to talk to this person — thus turning himself 
 so as to look at a right angle to the course in which 
 he was driving. Just as he turned his head, Oliver 
 Gladmon, a child seven years old, attempted to run 
 across the track in front of the horses. Before he 
 got across he turned to come back again. In some 
 way, which was not more particularly explained, before 
 he got back he was severely injured by the horses or 
 car. Hereupon, his father, as next friend of the child, 
 sued the company. The record showed no testimony 
 but that of one witness, who mentioned the chief facts 
 above stated, and testified "that if the driver had not 
 been looking at his companion he could have checked 
 the horses in time to have prevented the accident." 
 At the close of this testimony, tending to show the 
 negligence of the driver, the counsel of the railroad 
 
432 INSTRUCTING THE JURY. 
 
 company asked the court to give the following in- 
 structions : 
 
 1. If the jury find from the evidence that the plaintiff's 
 injuries resulted from his attempting to cross a street in front 
 of an approaching car, driven by an agent of defendant's, the 
 burden of proof is on the plaintiff to show affirmatively not 
 only the want of ordinary care and. caution on the part of the 
 driver, but the exercise of due care and caution on his own part ; 
 and if the jury find from the evidence that the negligence or 
 want of due care or caution of the plaintiff caused the accident, 
 or even contributed to it, or that it could have been avoided by 
 the exercise of due care on his part, then the plaintiff is not 
 entitled to recover whether the driver of the car was guilty of 
 negligence or not, but the jury must find for defendant. 
 
 2. If the jury find that the plaintiff negligently or rashly 
 attempted to cross the street in front of the car, but his injuries 
 resulted from his having accidentally slipped and fallen on or 
 near the track when endeavoring to turn back when it was too 
 late to stop the car, it is to be regarded as an inevitable accident, 
 for the consequences of which the defendant is not responsible. 
 
 3. If the plaintiff's injuries resulted from his attempting 
 to cross the street so suddenly that the driver could not stop the 
 car in time to avoid a collision with him, he is not entitled to 
 recover. 
 
 4. That the driver of the car had a right to suppose that 
 the plaintiff when duly warned, would desist from the attempt 
 to cross the street immediately in front of the car, and if such 
 due warning was given, and it not being heeded, it was then too 
 late to avert the accident, though the driver made every effort 
 to do so, the plaintiff is not entitled to recover. 
 
 The court (Carter, C. J.) refused to give these in- 
 structions, and charged as follows : 
 
 [The care of the defendant is to be tested by the exercise of 
 adult judgment in treating undeveloped judgment in childhood. 
 The defendant, in his duty under the law, is to be held to the 
 exercise of adult judgment and caution when brought to- bear 
 upon the security of childhood and undeveloped judgment ; and 
 
AN ORAJ, CHARGE. 433 
 
 as a convertible proposition the child is to be held to the meas- 
 ure of childhood judgment ; and I will give you some of the 
 reasons for this determination :] 
 
 This corporation, under the operation of its charter, the 
 authority of the law of its existence, is permitted to occupy the 
 common thoroughfares of this city. It is created to move in 
 those thoroughfares with the machinery that it has adopted as 
 a carrier. 
 
 [It is not contemplated by law, under the authority of their 
 creation, that they occupy the thoroughfares of Washington 
 and Georgetown, to the exclusion of an occupation, the right of 
 the citizens of the cities to do so — an easement that belongs to 
 all men, women and children of all grades of intelligence and 
 circumspection, from the lowest grade of description to the 
 highest. The rule that I have laid down covers the whole 
 compass of description — from childhood to manhood, from in- 
 fant judgment to ripe judgment — and was determined by the 
 court for the reason that the occupation of these streets is the 
 common property of all in common and the regulation of the 
 intercourse each with the other must have reference to and be 
 qualified by that common right.] 
 
 I do not wish to be understood "in advancing this rule, as 
 saying that this corporation are compelled to work this road 
 through the thoroughfares of the streets of the district, as 
 amid a population of blind or deaf men. They are not obliged 
 to furnish eyes that others may see, or ears that others may 
 hear. The responsibility of the highway is not theirs alone. 
 Every person who enters upon it, enters upon it under the obli- 
 gation to exercise a certain judgment in the preservation of his 
 or her own life. 
 
 [The degree of that accountability varies with the age and 
 capacity of the individual, until you get to a point where the 
 occupant of the highway is utterly disqualified from protecting 
 him or herself for the want of discretion.] 
 
 At that point the liability to exercise discretion for him is to 
 be found in another quarter than with the stranger. At that 
 point the liability of the guardian attaches and not the liability 
 of the defendant. 
 
434 INSTRUCTING, THE JURY. 
 
 There is another suggestion in explanation of this text of 
 the law as the court has given it, which it may not be improper 
 to give at this time. 
 
 While the railroad, in working its cars through this city, is 
 charged with caution, and strict caution, as far as their move- 
 ment may affect adversely the rights of others, they are charge- 
 able with no higher caution than can be exercised with the 
 machinery which the law permits them to employ in performing 
 the service of a common carrier in the district. This remark is 
 made with reference to the character of a car, and the difficulty 
 of bringing it to an instant pause. The car, to be of any service 
 to the public, must be in motion, must move at intervals at 
 least, and when in motion, its momentum requires time to bring 
 it to a pause. There is nothing in the obligation of a circum- 
 spection resting upon this company that compels them to do 
 what cannot be done. They have a right to the measure of 
 time necessary to bring their car to a state of rest. There is no 
 other rule by which these different interests of different citizens 
 and under different circumstances, can be regulated in the enjoy- 
 ment of a common easement. They have the right to pass 
 across, and the right to pass over the streets of the cities ; and 
 in estimating the proof for the plaintiff and the defendant in this 
 case, it is your duty to look upon the relations of each to the 
 other, and the rights of one citizen with another in a common 
 enjoyment and a common right, and answer, yourselves, the 
 question, Have these relative rights been offended in this case, 
 as made manifest by the proof ? If they have, trace the viola.- 
 tion to the offender, and hold him accountable in the conse- 
 quence of his violating the right. 
 
 [I am requested to say to you tnat if the defendant in this 
 case was in the wrong, if the car of the defendant was moving 
 with greater speed than good precaution and judgment would 
 dictate, yet if you find from the testimony that the plaintiff, by 
 his own act and in his own fault, superinduced the injury of 
 which he now complains, that he may not recover. 
 
 That is the law, gentlemen. But in estimating that you 
 will go back again to the foundation principle laid down in the 
 government of the law of this case, and estimate the fault, the 
 indiscretion, by the measure of the years of the plaintiff. You 
 
AN ORAL CHARGE. 435 
 
 have got to adopt one of two rules here, and I have concluded it 
 to be my duty to adopt the rule I have laid down ; either to 
 judge this child's conduct under the measure of his years, and 
 the measure of his discretion, or pronounce that no action lies 
 in behalf of a child, or demand of the child a measure of judg- 
 ment that nature has not given to him, which would be a greater 
 outrage upon good logic than to pronounce he had no remedy. 
 
 Now, if you find from the facts that this child interposed him- 
 self in the way of this car at a time when it could not be arrest- 
 ed, and under circumstances where he could not be seen under 
 watchful, reasonably watchful, strictly watchful care on the 
 part of the driver, where the car could not be brought to a 
 pause early enough to save his body from injury, the defendant 
 is not liable. If you find on the contrary, that this child came 
 upon the theatre of observation there at a time when the driver, 
 attending to his duty, may have observed him, and observed 
 him as an infant, with power to arrest his car to save him, you 
 will hold this corporation responsible for the injury done to 
 him ; and it appears to me that the whole case lies pretty much 
 there, too.] 
 
 However, I do not wish to comment on the facts. That is 
 your province. Take the case and dispose of it. 
 
 The defendant excepted to the parts of the charge 
 above in [ J. The jury found for the plaintiff $9,000 
 and costs; and judgment being entered accordingly, a 
 writ of error was prosecuted. The Supreme Court of 
 the United States affirmed the judgment, holding that 
 the burden of proving the want of ordinary care on 
 the part of the plaintiff, in an action for negligence, 
 was upon the defendant; that the caution required of a 
 child was according to its maturity and capacity, and 
 was to be determined in each case by the circum- 
 stances of that case; that the defendant's instructions 
 were properly refused, and that while detached sen- 
 tences of the charge might be open to criticism, its 
 general scope and tendency was correct, and upon the 
 
436 INSTRUCTING THE JURY. 
 
 whole it was right, and the jury could not have failed 
 to understand it correctly. 
 
 In C. & N. W. R'y Co. v. Dimick, 96 111. 42, the facts, 
 as gathered from the opinions of the judges and from 
 the special findings of the jury, were substantially as 
 follows : 
 
 On the 29th day of July, 1873, Gilbert H. Dimick 
 was killed by a train of the defendant company, while 
 he was attempting to cross its track upon a public 
 highway. The train was " an extra train " which was 
 following close upon the regular train, which deceased 
 knew had just passed. There was brush or other 
 obstruction "upon the defendant's right of way, which 
 obstructed the view of approaching trains to persons 
 passing along the highway and approaching the cross- 
 ing. Yet there was a point near the crossing where 
 Dimick, had he looked in the direction of the 
 approaching train, might have seen it in time to have 
 avoided a collision, but he did not look that way, being 
 seated upon a hayrack, with his face turned in the 
 opposite direction. He had, however, looked in the 
 direction of the approaching train before reaching 
 that point. No bell was rung or whistle sounded as 
 provided by statute. The fireman on the engine saw 
 him in time to have warned him, and had reason to 
 suppose he did not see or hear the approaching train, 
 and, had the whistle blown continuously from the 
 time the fireman first saw him, it would have warned 
 him of the approaching train in time to have avoided 
 the collision. Dimick, according to the testimony. 
 was about 45 to 50 years of age, a farmer, of sober and 
 industrious habits, of a quiet temperament, and of 
 sound judgment. 
 
 The court below gave to the jury the following in- 
 structions in writing, upon the margin of each of 
 
INSTRUCTIONS IN WRITING. 487 
 
 which was endorsed the word "given," and which 
 were " taken by the jury in their retirement." 
 
 PLAINTIFF'S INSTRUCTIONS. 
 
 1. The eourt instructs the jury that by the law of the State: 
 of Illinois, a bell of at least thirty pounds weight, or a steam 
 whistle, is required to be placed on each locomotive engine, and 
 to be rung or whistled by the engineer or fireman, at the dis- 
 tance of at least eighty rods from the place where the railroad 
 crosses any public street or highway, and to be kept ringing or 
 whistling until sueh street or highway is reached, and the cor- 
 poration or owners of the railroad are liable to any party 
 injured, for all damages sustained by reason of the neglect to 
 comply with such requirement. 
 
 2. The jury are further instructed that, if they believe 
 from the evidence, that the defendant or its servants omitted to 
 ring a bell or sound a whistle, in the manner required by law, 
 such omission constitutes a prima facie case of negligence.' on 
 the part of said defendant ; and if the jury further believe from 
 the evidence that the deceased, Gilbert H. Dimick, was traveling 
 upon a publie highway, at a point where it crossed the defend- 
 ant's railroad, and used ordinary care and caution to prevent 
 and avoid the injury, and was there killed by the locomotive 
 engine or ears of the said defendant, by reason of such neglect, 
 they will find for the plaintiff, and assess such damages as they 
 may believe from the evidence the widow and next of kin of the 
 said Gilbert H. Dimick have sustained by reason of his death, 
 not exceeding five thousand dollars. 
 
 3. The court instructs the jury that where both parties are 
 equally in the position of right, which they both hold independ- 
 ent of the favor of each other, the plaintiff is only bound to 
 show that the injury was produced by default or negleet of the 
 defendant to use reasonable care and diligence to prevent and 
 avoid it, and that the plaintiff exercised ordinary care and dili- 
 gence to prevent and avoid it; or that by the exercise of 
 ordinary care he could not have avoided it. 
 
 4. If the jury believe from the evidence that Gilbert H. 
 Dimick was killed by the defendant's locomotive engine while 
 he was passing along and upon the public highway, at a point 
 
438 INSTRUCTING THE JURY. 
 
 where said highway crosses the defendant's railroad, and that he 
 used ordinary care to prevent damage or injury from the 
 engines or trains on said defendant's railroad ; and if the 
 jury further believe from the evidence that the servants and 
 agents of said defendant, who were then in charge of said 
 locomotive engine, was not then ringing the bell or sounding 
 the whistle as required by law, then the jury will find for the 
 plaintiff. 
 
 5. What is meant by ordinary care or caution, is that 
 degree of care which may reasonably be expected from a person 
 of ordinary prudence, situated as said Gilbert H. Dimick was 
 immediately before and at the time of the injury, and is synony- 
 mous with reasonable care. 
 
 6. The court further instructs the jury that it is the duty 
 of railroad companies to keep its right of way near to and ad- 
 joining public highways clear from trees and brush, so as not 
 to obstruct the view of persons passing along and upon such 
 highway, at a crossing of a highway with its railroad, or pre- 
 vent such persons from seeing the approaching trains while 
 running upon its railroad. And if the jury believe from the 
 evidence that the defendants allowed trees or brush to stand or 
 grow upon its right of way near to and adjoining the public 
 highway ; and that in consequence of such brush and trees 
 being allowed to stand on said right of way, the deceased, while 
 passing along said highway, over said railroad, was prevented 
 from seeing the approaching train which caused the injury, in 
 time to avoid it, and was killed by said train, and that the de- 
 ceased had used reasonable and ordinary care and caution to 
 prevent and avoid the injury, then the said defendant would be 
 guilty of negligence and liable in this case. 
 
 7. The court further instructs the jury that if they believe 
 from the evidence, that the fireman, Edward Allen, as the train of 
 the defendant came out of the cut some five hundred and fifty 
 feet west of the crossing where the accident occurred, saw the 
 deceased upon his wagon approaching the crossing, and he con- 
 tinued to watch the deceased approach the crossing until his 
 horses had reached and had actually stepped upon the same, 
 without giving any signal of warning by ringing the bell or 
 sounding the whistle until the horses of deceased were upon the 
 
INSTRUCTIONS IN WRITING. 439 
 
 crossing, this would be negligence in the defendant ; and if the 
 jury further believe from the evidence, that if the alarm by a 
 continuous ringing of the bell or sounding of the whistle had 
 been given, it would have warned the deceased of danger of the 
 approaching train and induced him to stop his team until the 
 train had passed the crossing, this failure- or neglect to give 
 such waVning would render the defendant liable for all damages 
 resulting to deceased in consequence of such neglect, provided 
 the jury believe from the evidence that the deceased exercised 
 reasonable care and diligence to prevent and avoid the injury. 
 
 8. If the jury should find from the evidence that the de- 
 fendant is guilty of the wrongful act, neglect or default as 
 
 charged in the plaintiff's declaration, and that the same resulted 
 in the death of Gilbert H. Dimick, then the plaintiff is entitled to 
 recover in this action for the benefit of the widow and next of 
 kin of deceased, such damages as the jury may deem from the evi- 
 dence and proofs a fair and just compensation for the pecuniary 
 injury resulting from such death to such widow and next of 
 kin, not exceeding five thousand dollars. 
 
 9. The court further instructs the jury that if they believe 
 from the evidence, that Gilbert H. Dimick was killed by the de- 
 fendant's locomotive engine and train while he was traveling 
 upon a highway whieh crossed the defendant's railroad there, 
 although the jury may believe from the evidence that the de- 
 ceased was himself guilty of some negligence which may have 
 in some degree contributed to the injury, yet if the jury further 
 believe from the evidence that the negligence of the defendant 
 was of a higher degree or so much greater than that of the de- 
 ceased that that of the latter was slight in comparison, the 
 plaintiff is entitled to recover in this action. 
 
 10. The court further instructs the jury that where one 
 class of witnesses are apparently free from all bias, and upon 
 another class a very strong moral responsibility attaches, from 
 the burden of which they have the strongest inducements to re- 
 lieve themselves, if possible, by their own testimony, these con- 
 siderations are proper to be considered in comparing and esti- 
 mating the weight of their testimony, and the jury may be jus- 
 tified in giving more weight to the former than to the latter. 
 And in this case, although the engineer and fireman who were 
 
440 INSTEUCTING THE JFBY. 
 
 in charge of the engine at the time of the aceident complained 
 of in this case, have sworn that the bell upon the engine was 
 rang for a distance of eighty rods before reaching the crossing, 
 yet if several other witnesses who appear to have no- bias, have 
 testified in the case that no bell was rung, the jury have a right 
 to give more weight to the latter than to the engineer and fire- 
 man, if from all the circumstances proved, they think them 
 entitled to more. 
 
 defendant's instructions. 
 
 1. The jury are instructed that it is the clear duty of a 
 person as he comes near to and upon a railroad crossing, to use 
 all proper precautions to avoid injury ; and the least he can do 
 is to look in both directions, and listen for the cars ; and if he 
 does not do so, and this omission contributes to his injury, he is 
 guilty of such negligence as will bar his recovery, notwithstand- 
 ing the negligence of those in charge of the train, in omitting 
 to sound the whistle or ring the bell. 
 
 2. The jury are instructed that in an action to recover 
 damages for injuries caused by the alleged negligence or mis- 
 conduct of another, if it appears that the plaintiff or his intestate, 
 was alone in fault in producing the injury, he cannot recover. 
 
 3. The jury are instructed that in. an action to recover 
 damages for injuries caused by the alleged negligence or mis- 
 conduct of another, if it appears that the plaintiff, or his in- 
 testate, and the defendant were equally guilty of negligence in 
 producing the injury, the plaintiff cannot recover. 
 
 4. The jury are instructed that it is not any want of ordi- 
 nary care for a train of ears to approach a highway crossing at 
 its usual speed,' although there is a team approaching or stand- 
 ing near it. 
 
 5. If the jury believe, from the evidence in this case, that 
 the deceased was killed in attempting to cross the railroad track 
 within the limits of the public highway, and at a public cross- 
 ing, and if the jury further believe, from the evidence, that the 
 deceased would have seen or heard the approaching cars in sea- 
 son to have avoided them, had he first looked and listened 
 before attempting to cross, then the jury are bound to presume 
 either that the deceased did not look or listen for the cars, in 
 which case the jury are instructed that the omission, on the part 
 
INSTRUCTIONS IN WEITING. 441 
 
 of the deceased, of so plain and imperative a duty, is such negli- 
 gence on his part as precludes any recovery in this ease ; or that 
 he supposed he could pass the crossing before the train should 
 reach it, in which case the attempt to do so was at his own sole 
 risk, and the defendant is not liable for the result. 
 
 6. The jury are instructed that positive evidence that a bell 
 was ringing, or a whistle sounded (other things being equal), 
 is entitled to more weight than negative evidence in relation to 
 such f aets. 
 
 7. The jury are instructed that one who is approaching a 
 railway crossing is not absolved from the duty of looking up and 
 down the track to see whether a train is approaching, by the 
 omission to ring the bell or blow the whistle, and if failure to 
 take such precaution contributes to. any injury received by him 
 by a collision with trains running on said railroad,, and if such 
 injury would not have occurred had he looked both ways for 
 the cars, then no recovery can be allowed for such injury. 
 
 8. The court instructs the jury, on the part of the defend- 
 ant, that in this action the burden of proof is on the plaintiff, 
 and to entitle the plaintiff to recover he must not only prove 
 by competent testimony that the defendant was guilty of negli- 
 gence, but you must also believe from the evidence that Gilbert 
 H. Dimick, the deceased, himself used ordinary care and caution 
 to avoid the accident, and that he looked and listened to see and 
 hear the train approaching before he crossed the railroad. track. 
 
 9. The court instructs the jury that if they believe, from 
 the evidence, that the death of said Dimick was caused by or 
 was the result of his own negligence, then the plaintiff cannot 
 recover in this action. And if you believe, from the evidence, 
 that the death of said Dimick was caused by his own negligence,. 
 and the negligence of the defendant, and that both were equally 
 to blame, the plaintiff cannot recover. 
 
 10. The court further instructs the jury that, while it is 
 true that the right of the traveler on the highway, where it is 
 crossed by a railroad, is not subordinate to or superior to that of 
 the railroad, it is also true that both parties are bound to use 
 ordinary care and caution to avoid accident, and that the care 
 and caution to be used should be in proportion to the magnitude 
 of the danger. 
 
442 INSTRUCTING THE JURY. 
 
 11. The court further instructs the jury that if they be- 
 lieve, from the evidence, that the said Gilbert H. Dimick, de- 
 ceased, just before and at the time of the accident, was driving 
 his team along the public highway, that crossed the track of 
 defendant's road, with his side or back turned to the approach- 
 ing train, so as to prevent his seeing it, and that he neglected 
 to turn his head or look up and down the track, when by so do- 
 ing he could have seen the train and avoided the accident, but 
 drove directly upon the track without looking and was killed, 
 then the plaintiff cannot recover in this action, and you will 
 find for the defendant. 
 
 12. The court further instructs the jury that, while a trav- 
 eler on the highway that crosses a railroad may not be required 
 to leave his own vehicle or use any unusual means to discover 
 an approaching train, yet he cannot be permitted to close his 
 eyes and his ears to danger without using both his faculties of 
 seeing and hearing to avoid the accident, and then claim com- 
 pensation for the injury. And if the jury believe, from the evi- 
 dence, that the said Dimick could, if he had looked and listened, 
 have seen or heard the train coming in time to avoid the ac- 
 cident, and that he neither looked nor listened, but drove 
 directly upon the track of the railroad without using both of 
 his faculties of seeing and hearing while the train was approach- 
 ing, and was killed, then he was guilty of negligence, and you 
 will find for the defendant. 
 
 13. If the jury believe, from the evidence, that the bell 
 was not rung or the whistle sounded, eighty rods from the 
 crossing, or one or the other kept sounding until the engine 
 reached the crossing ; yet, if you further believe, from the evi- 
 dence, that said Dimick, deceased, did not look or listen, but 
 drove upon the railroad track, when, if he had looked or listened,- 
 he could have seen or heard the approaching train in time to 
 have avoided the accident, you will find for the defendant. 
 
 14. If the jury believe, from the evidence, that the wagon 
 on which the deceased was approaching the railroad, was mak- 
 ing much noise, then the jury are instructed that the law then 
 required the defendant to use greater care to listen for an ap- 
 proaching train, before driving on or in dangerous proximity to 
 
INSTRUCTIONS IN WRITING. 443 
 
 the railroad track, than if said wagon was making but little 
 noise, or was making no noise at all. 
 
 15. The jury are instructed, that while it was the duty of 
 the defendant to use all reasonable and proper precautions at the 
 highway crossing to prevent collisions and accidents, still, a 
 like duty rested upon the deceased ; and if the jury believe, 
 from the evidence, that the deceased approached the railroad 
 crossing with a wagon and team, and did not avail himself of 
 his sense of sight and hearing, and that by a proper exercise of 
 his sense of sight and hearing, he could have avoided a collision 
 with the engine and cars at the crossing, then the jury are in- 
 structed that the deceased was unusually negligent on his part, 
 and there can be no recovery in this case, and the jury must 
 find the defendant not guilty. 
 
 16. If the jury believe, from the evidence, that the railroad 
 track west of the crossing, or the engines or cars running 
 thereon, was or were obstructed to the view of the deceased 
 when he was passing south oh the highway to the crossing, by 
 willows, and that the deceased on the 29th day of July last, or 
 prior thereto, knew, or by the exercise of ordinary caution or 
 care, could have known that said willows were there, and that 
 they obstructed said view of said railroad, engines and cars, 
 then the court instructs the jury that it was the duty of the 
 deceased to have stopped his team and stood up in his wagon, 
 or taken other proper and reasonable measure, to avoid such 
 effect of said willows, and have looked and listened for the 
 engines and cars before going on to the track of the railroad, or 
 in dangerous proximity thereto ; and if the jury believe, from 
 the evidence, that the deceased did not so stop his team and 
 stand up on his wagon, or take such other measures, and look 
 and listen for engines and cars on said railroad before driving 
 on the track of said railroad, or in dangerous nearness thereto, 
 then the jury must find the defendant not guilty. 
 
 17. The jury are instructed that if they believe from the 
 evidence that the engine and train of cars that collided with the 
 wagon on which deceased was riding, was an extra train, and 
 that the regular freight train had gone east over the crossing 
 before, such facts would not excuse the deceased or relieve him 
 from .exercising all reasonable care and caution to ascertain 
 
444 INSTRUCTING THE JURY. 
 
 whether there were engines or cars in the vicinity of the cross- 
 ing before he went upon the track, nor do they exeuse him from 
 looking and listening for the engine and cars before going on 
 the track. 
 
 18. The jury are instructed that the defendant had the 
 right to run as many trains of cars every day over its track as it 
 pleased, and the mere fact (if the jury should believe it a fact 
 from the evidence) that shortly before the deceased drove down 
 to the railroad, the regular freight train had gone east, and 
 that the deceased had seen or heard it go east, did not release 
 the deceased from the duty of looking and listening for engines 
 and cars before going on to the railroad track. 
 
 19. Although the jury may believe from the evidence that, 
 the deceased did not hear and did not see the cars or any of 
 them, or the engine drawing them before he drove on to the 
 railroad track at the crossing, yet if the jury further believe 
 from the evidence that the deceased could have heard the engine 
 or cars or either of them, had he listened for them, or could have 
 seen them had he looked for them before going on to the rail- 
 road, in time to have avoided a collision with them, then the 
 jury must find the defendant not guilty. 
 
 20. The jury are instructed that if they believe from the 
 evidence that the deceased heard or saw the cars coming before 
 he drove on to the railroad track and in time to have avoided a 
 collision with the same, but that he believed or supposed after 
 he knew that the cars were coming, from either hearing or seeing 
 them, that he could cross the track with safety to himself before 
 they reached the crossing, and that such belief or supposition, 
 was based upon a miscalculation or underestimate of the speed 
 or distance of said cars from the crossing, then the deceased was 
 the cause of his own misfortune, and the jury must find the 
 defendant not guilty. 
 
 21. If the jury believe from the evidence that the witness, 
 Winders, warned the deceased not to go upon the railroad, that 
 the cars were coming or words to that effect, and that at the 
 time and place such warning was given, the person who gave 
 the same to the deceased then and there either saw or heard said 
 cars, and that the deceased could have known that said cars 
 were coming had he then and there either looked or listened, 
 
INSTRUCTIONS IN WRITING. 445 
 
 and that he did neither look nor listen for said cars but drove 
 on the railroad at the crossing of the same by the highway and 
 was there injured by a collision of his wagon with the cars and 
 afterwards died from the effects of such injuries, then the court 
 instructs the jury that such conduct on the part of the deceased 
 in law amounted to such gross negligence on the part of the 
 deceased as to prevent any recovery in this case, and the jury 
 should find the defendant not guilty, 
 
 22. If the jury believe from the evidence that the deceased 
 was told by the plaintiff's witness, Winders, to stop, that the 
 cars were coming, and that these things were said to him in 
 time to have prevented him from going on the railroad track at 
 the crossing, and thereby have avoided the collision with the train, 
 and that the deceased heard said witness make these remarks to 
 him, but disregarded the same, and drove on to the track and 
 was injured by the caTS while on the track at the crossing, then 
 the jury must find the defendant not guilty. 
 
 23. Although the jury may believe from the evidence that 
 the engineer in charge of the engine in question, saw the 
 deceased or the team of horses attached to the wagon in which 
 the deceased was riding approaching the railroad track, and 
 before they reached the same in time to have stopped the said 
 engine and train of cars attached thereto, yet the jury are in- 
 structed that said engineer had a right to suppose that said team 
 would stop or have been stopped by the person or persons in 
 charge of the same before reaching or going upon the railroad 
 track, and said engineer was not required by law to check said 
 locomotive and train of cars before or at said highway crossing, 
 but had a right to rely upon the supposition or presumption 
 that said team would not be driven upon said railroad track 
 at said crossing before the train had passed the same. 
 
 24. If the jury believe from the evidence that the deceased 
 did not look or listen for the cars before going on to the rail- 
 road track at the crossing, and that by looking and listening 
 with ordinary care and diligence for the cars, he could have 
 seen them or heard them in time to have avoided the accident 
 in question ; and if- the jury further believe from the evidence 
 that by the exercise of ordinary care and diligence the engine 
 and train of cars could not have been stopped after the team of 
 
446 INSTRUCTING THE JURY. 
 
 horses and wagon in which the deceased was riding were actual- 
 ly upon the railroad track, in time to have prevented the acci- 
 dent and have saved the life of the deceased, then the jury must 
 find the defendant not guilty, although the jury should further 
 believe from the evidence that no bell was rung or kept ringing, 
 and no whistle sounded or kept sounding, eighty rods before 
 reaching said crossing. 
 
 25. The jury are instructed that while it is the imperative 
 duty of railroad companies to use all proper and reasonable pre- 
 cautions at public road crossings and everywhere else, to pre- 
 vent collisions and accidents, still a like duty rests upon a citi- 
 zen, and when a person approaching a railroad crossing with a 
 wagon and team does not avail himself of his senses of sight and 
 hearing, when by the proper exercise thereof he could have 
 avoided a collision with a train at the crossing, he will be re- 
 garded as unusually negligent on his part, and cannot recover 
 for the injury resulting in an action against the company. 
 
 26. The court further instructs the jury on the part of the 
 defendant, that proof of the omission to ring the bell or 
 sound the whistle, as required by law, will not of itself render 
 the defendant liable. The jury must believe from the evidence 
 that the accident was caused by such neglect, and that must 
 be shown by the plaintiff, proving that Dimick, the deceased, 
 was himself in the exercise of due care and caution when he 
 drove upon the crossing. 
 
 27. The court further instructs the jury, on the part of 
 defendant, that if they believe from the evidence that Gilbert 
 H. Dimick, the deceased, did not exercise due care and caution 
 when he drove upon the railroad track, and was killed, the 
 plaintiff will not be entitled to a verdict in this case, although 
 the jury may believe from the evidence that no bell was rung or 
 whistle sounded by defendant's employes, as required by law. 
 
 28. The jury are instructed that the question of the change 
 of venue of this case has nothing to do with this trial, and it is 
 the imperative duty of the jury to disregard anything in regard 
 to the same, or that may have been said to them in the argu- 
 ment of counsel about such change. 
 
 29. The jury are instructed that they have nothing to do 
 with any application that may have been made to obtain 
 
INSTRUCTIONS IN WRITING. . 447 
 
 security for costs in this case, and it is the bounden duty of the 
 jury to disregard anything said by counsel in reference to the 
 same. 
 
 30. The court instructs the jury that the wealth or poverty 
 of the parties to this case have nothing to do -with this case, 
 and the jury have no right to take into consideration the finan- 
 cial condition of either party, in determining the guilt or inno- 
 cence of the defendant. 
 
 31. The law did not require the defendant to ring the bell 
 and keep it ringing, and to sound the whistle and keep it sound- 
 ing. It was sufficient if tiie defendant only rang the bell and 
 kept it ringing, or that it sounded the whistle and kept it sound- 
 ing for at least eighty rods before reaching the crossing ; and if 
 the jury believe from the evidence in this case that the defend- 
 ant did either of these, but not both of them, then the defend- 
 ant fully complied with the law in that respect. 
 
 32. The jury have no right to disregard the testimony of any 
 witness in this case, through or from mere caprice ; nor have the 
 jury any right to disregard the testimony of any unimpeached 
 witness in this case. 
 
 33. The jury must determine this case the same as though 
 it was a case between two individuals, and must decide it upon 
 the evidence alone, under the instructions of the court, without 
 any prejudice against or sympathy for either party thereto, or 
 person connected therewith. 
 
 These instructions so "taken by the jury in their 
 retirement," were " returned by £hem, with their ver- 
 dict, into court." The verdict being for the plaintiff 
 and assessing the damages at $3,500, it then, probably 
 for the first time, occurred to the counsel for the de- 
 fendant that the plaintiff's instructions, each and every 
 one of them, and particularly the first, eighth and. 
 ninth, were objectionable as being calculated to be- 
 guile the jury into the belief that the deceased was not 
 required to exercise ordinary care and caution to 
 avoid being injured, and accordingly exceptions were 
 taken. In this view the defendant's counsel were 
 
448 INSTRUCTING THE JUKT. 
 
 sustained by the Supreme Court of Illinois, who held 
 that, notwithstanding the first instruction was simply 
 a statement of the statute law of the state, the eighth, 
 an almost literal copy of one which they had express- 
 ly approved in Payne's Case, 59 111. 541, and the ninth, 
 a statement of the doctrine of comparative negligence 
 in the style that was in fashion at the time of the 
 trial ; notwithstanding some twenty-four instructions 
 given for the defendant made ordinary and even ex- 
 traordinary care on the part of the deceased, essential 
 to a recovery; and notwithstanding the facts in the 
 case, as viewed by the jury and reported by them to 
 the court by their special verdict, rendered it wholly 
 immaterial whether the deceased exercised ordinary 
 care or not, yet the jury might have been deceived 
 into believing that it was unnecessary to show that 
 the deceased used due and proper care, and might 
 thereby have been misled into rendering a verdict 
 they would not otherwise have rendered. 
 
 These two cases furnish a fair illustration of the 
 difference between justice as administered by the 
 Supreme Court of the United States and justice as 
 administered by the Supreme Court of Illinois, a differ- 
 ence as great in many respects as that between day- 
 light and darkness. We shall never see daylight in 
 this state until we Have abolished this system of in- 
 structing the jury in writing, restored to the trial judge 
 those powers which are properly inherent in the judi- 
 cial office, and, by proper legislation, protected liti- 
 gants against the hair-splitting technicalities now in- 
 dulged in by the higher courts, which serve no pur- 
 pose but to bring the administration of justice into 
 well-merited disrepute. 
 
CHAPTER VIII. 
 
 THE APPELLATE COURTS. 
 
 The framers of the constitution of 1870, assuming 
 that the time would come when the supreme court 
 would not be able to dispose promptly of all the cases 
 that might be brought before it by appeal or writ of 
 error, provided by section 11 of Article VI, as follows : 
 
 " After the year of our Lord 1874, inferior appellate courts, 
 of uniform organization and jurisdiction, may be created in dis- 
 tricts formed for that purpose, to which such appeals and writs 
 of error as the general assembly may provide, may be prosecuted 
 from circuit and other courts, and from which appeals and 
 writs of error shall lie to the supreme court, in all criminal 
 cases, and cases in which a franchise or freehold, or the validity 
 of a statute is involved, and in sueh other cases as may be 
 provided by law. Such appellate courts shall be held by such 
 number of judges of the circuit courts, and at such times and 
 places, and in such manner, as may be provided by law ; but no 
 judge shall sit in review upon cases decided by him, nor shall 
 said judges receive any additional compensation for such ser- 
 vices." 
 
 Acting under this provision the general assembly 
 in 1877 created four appellate courts, which have been 
 in operation a little more than seven years, and long 
 enough to demonstrate the truth of the saying, of Lord 
 Bacon, that "as the births of living creatures are at 
 first ill-shapen, so are all innovations which are the 
 births of time." It is proposed now to briefly discuss 
 a few of the provisions of the statutes providing for 
 29 449 - 
 
450 THE APPELLATE COURTS. 
 
 the organization of these courts, denning their juris- 
 diction, and regulating the review of their judgments 
 by the supreme court upon appeal or writ of error. 
 
 1. THE ASSIGNMENT OF JUDGES. 
 
 Section 5, of the act entitled "An act to establish 
 appellate courts," is as follows : 
 
 " § 5. The supreme court of this state shall assign twelve 
 of the judges of the circuit court of this state, to duty in said 
 appellate courts as follows : Three of them to the first district ; 
 three of them to the second district ; three of them to the third 
 district, and three of them to the fourth district ; which said 
 assignment shall be for a term of three years, and upon the 
 expiration of said term, the supreme court shall assign their suc- 
 cessors for the term aforesaid; Provided, the terms of the judges 
 so assigned in the year of our Lord 1877, shall expire on the 
 first Monday of June, A. D. 1879 ; And, provided further, the 
 supreme court may, for good cause shown, remove any of said 
 judges from duty in any of said appellate courts, and in all 
 cases of vacancy in any of said appellate courts, the supreme 
 court shall fill such vacancy by assigning another judge of the 
 circuit court to duty therein." 
 
 The supreme court, under the provisions of this 
 act, after having assigned twelve circuit judges to hold 
 the appellate courts for the term of three years, have 
 reassigned the same judges for the remaining three 
 years of the terms for which they were elected, and 
 thus have excluded all the other circuit judges of the 
 state from appellate court work. Several reasons may 
 be urged in favor of a modification of the law, so' as to 
 permit and require each of the circuit judges to act as 
 a judge of an appellate court during some portion of 
 his term of office. 
 
 First. The judges who are assigned to hold the ap- 
 pellate courts, thereby enjoy opportunities for study 
 and for acquiring useful knowledge, which they do not 
 enjoy at the circuit. One year's experience in an ap- 
 
ASSIGNMENT OF JUDGES. 451 
 
 pellate court must necessarily benefit any trial judge, 
 and enable him to discharge his duties at the circuit 
 with greater skill than he would be able to with- 
 out such experience. As the object, and the only 
 object, sought to be accomplished by the creation of 
 reviewing courts, is to secure a higher degree of accu- 
 racy in the trial courts, the use of the appellate courts 
 as schools for the education of trial judges, would 
 seem to be peculiarly appropriate. 
 
 Second. The assignment of the judges by the 
 supreme court under the present law, is looked upon 
 as an expression of opinion on the part of that tribunal, 
 that the twelve judges so assigned are the most ex- 
 perienced and most capable of the forty-four circuit 
 judges of the state, and that the remaining thirty-two 
 do not possess the qualifications necessary to enable 
 them to discharge satisfactorily the duties of appellate 
 judges. If it be true that the twelve judges assigned 
 are the most experienced and capable, it does not fol- 
 low they should be assigned to duty in the appellate 
 courts. As every one who reflects upon the subject 
 must know, it requires far more experience and ability 
 to properly discharge the duties of a circuit judge 
 than it does to hold an appellate court. The circuit 
 judge is compelled to decide questions of law in the 
 haste and hurry of trials, without time for much reflec- 
 tion, with no opportunity for consultation with others, 
 and generally without the aid of much argument. 
 The appellate judge has abundant time for reflection, 
 enjoys the benefit of consultation with two other 
 judges, and is generally aided more or less by argu- 
 ments, oral or printed. Were it conceded, therefore, 
 that there are circuit judges who would not be success- 
 ful as judges of the appellate court, and who would 
 occasionally make erroneous decisions, it would yet be 
 safe to say they would make far less mistakes in the 
 
452 THE APPELLATE COURTS. 
 
 appellate court than they would at the circuit, and the 
 greatest good to the greatest number would demand 
 that they be put where they can do the least harm. 
 
 The end most desirable to be accomplished, is the 
 proper trial of causes in the circuit courts, and it is far 
 better to have a cause properly tried in the first 
 instance, than to have it erroneously tried and have 
 the errors corrected at the expense and delay occa- 
 sioned by an appeal and a new trial. Besides, it must 
 be remembered that a great many of the decisions of 
 the circuit judge cannot be reviewed by the higher 
 courts, either for the reason that the parties aggrieved 
 are too poor to take appeals, or because the decisions 
 are upon interlocutory matters, and are therefore not 
 reviewable. Great wrong may, therefore, be done by 
 an inexperienced judge in the circuit court, which can- 
 not be remedied, while but comparatively little wrong 
 can be* done by an appellate judge, that cannot be 
 corrected by the supreme court. A method of assign- 
 ing circuit judges to appellate court duty, which with- 
 draws the most experienced judges from the place 
 where they can be most useful, would seem to be radi- 
 cally wrong. 
 
 Third. Frequent changes in the appellate courts, 
 giving every circuit judge an opportunity to do the 
 work of a reviewing court, would give better satisfac- 
 tion to the circuit judges and to the people, and would 
 avoid any complaints that the appellate courts, or any 
 of them, were organized in the interest of any class of 
 litigants. Besides, it would not be possible, under such 
 a method of appointment, for an appellate judge to 
 forget, when reviewing the proceedings of a trial judge, 
 that some error in the trial of a cause was almost 
 unavoidable, and that the verdict of a jury was seldom 
 influenced by the inaccuracies of instructions and the 
 
ASSIGNMENT OF JUDGES. 453 
 
 other trivial errors, to which so much importance is 
 attached by modern reviewing courts. 
 
 It may well be doubted whether any reviewing 
 court can be successful, whose judges are not required 
 to do circuit court work. A judge who does only the 
 work. of an appellate tribunal, whose whole time is 
 occupied with the consideration of abstract questions 
 of law, and who does not mingle with the people, is 
 very likely to lose that practical common sense which 
 every judge ought to possess. In England, the judges 
 of the appellate courts also act as circuit judges, and 
 in that country, especially in modern times, cases are 
 tried and decided upon their merits. The judges of 
 the Supreme Court of the United States are engaged at 
 the circuit a portion of each year, and there are no com- 
 plaints that their decisions are technical, but on the 
 contrary, in that court the charge of the trial judge is 
 viewed as a whole, and if, when thus viewed, its gene- 
 ral scope and tendency is correct, the judgment is 
 not reversed because of inaccuracy in a single sentence 
 or paragraph. In this. state, the judges of the supreme 
 court do no circuit court work. They do not associate 
 with trial judges. They meet twice a year in each of 
 the three grand divisions, hear a few oral arguments, 
 hold a few consultations, divide the records, briefs and 
 abstracts into seven parts, and depart for their homes, 
 there to write their opinions. The results of such 
 methods of procedure are apparent to all familiar with 
 their decisions. Were the constitution amended so as 
 to require the judges to hold circuit courts within their 
 districts for at least sixty days each year, there is 
 reason to believe there would be a decided improve- 
 ment in the administration of justice. 
 
 The propriety, however, of any plan for the organ- 
 ization of the appellate courts depends, to a great 
 extent, upon the jurisdiction and powers that are to 
 
454 THE APPELLATE COURTS. 
 
 be conferred upon them, and what is above suggested 
 with regard to the assignment of the judges is based 
 upon the assumption that their jurisdiction and powers 
 would remain substantially the same as now with an 
 amendment to the law, by which appeals would be 
 allowed to the supreme court in all cases involving 
 over one thousand dollars, as well when judgments 
 were reversed as when they were affirmed. 
 
 2. APPEALS TO PLAINTIFFS IN ACTIONS EX DELICTO. 
 
 By section 8 of the Appellate Court Act, it is pro- 
 vided as follows i 
 
 " In all cases determined in said appellate courts, in actions 
 ex contractu, wherein the amount involved is less than one 
 thousand dollars ($1,000) exclusive of costs ; and in all cases 
 sounding in damages wherein the judgment of the court below 
 is less than one thousand dollars ($1,000), exclusive of costs, 
 and the judgment is affirmed or otherwise finally disposed of 
 in the appellate court, the judgment order or decree of the appel- 
 late court shall be final and no appeal shall lie, or writ of error 
 be prosecuted therefrom." 
 
 Under this statute, construed in connection with 
 the practice act, the defendant 'in an action ex delicto, 
 against whom a judgment of over $1,000 has been 
 rendered in the circuit court and affirmed in the appel- 
 late court, may appeal from the latter court to the 
 supreme court, but a plaintiff in such an action, who 
 has been wholly defeated in the circuit court, or who, by 
 the rulings of that court, has been prevented from 
 recovering more than $1,000, cannot appeal to the 
 supreme court from a judgment of affirmance of the 
 appellate court, no matter what may be the amount 
 he may claim to be entitled to, and no matter what 
 errors of law may have been committed to his injury. 
 On the other hand, a plaintiff in an action ex contractu, 
 who has been defeated wholly or in part in the circuit 
 
APPEALS TO SUPREME COURT. 455 
 
 court, can appeal from the appellate to the supreme 
 court, from a judgment of affirmance, whenever the 
 amount in controversy exceeds $1,000. 
 
 It is difficult to perceive any just reason for dis- 
 criminating between a plaintiff and a defendant in an 
 action ex delicto. Neither party to a litigation should 
 have any advantage over the other, so far as the right 
 of appeal is concerned, nor should there be any pre- 
 sumption that a judgment against a plaintiff in such 
 an action is more likely to be right than one against 
 the defendant. On the contrary, it should be presumed 
 that, if the circuit court errs at all, it is as likely to 
 commit an error against the plaintiff as it is to com- 
 mit one against the defendant. The effect of this 
 statute may be illustrated by reference to decided 
 cases. 
 
 In Garland v. C. & N. W.R'y Co., 8 Brad. 571, the 
 plaintiff was injured at a railroad crossing in Des- 
 plaines, Cook county, Illinois, by a passenger train, and 
 it was claimed there was negligence on the part of 
 the defendant, first, in leaving its cars standing on its 
 side-tracks, so as to obscure the view of approaching 
 trains ; second, in failing to ring the bell or sound the 
 whistle ; and third, in running its train at too high a 
 rate of speed through the village. There was a con- 
 flict in the evidence as to the care exercised by the 
 respective parties, but the circuit court gave for the 
 defendant a large number of instructions, under which 
 the jury were bound to and did find a verdict for the 
 defendant. The appellate court, in an opinion de- 
 livered by Bailey, J., after discussing the evidence and 
 arriving at the conclusion that the verdict was right, 
 say: 
 
 " Some of the instructions, we think, are erroneous. Thus, 
 the second instruction is incorrect in its statement or definition 
 of what would constitute wanton or willful negligence on the 
 
456 THE APPELLATE COURTS. 
 
 part of the defendant ; but as there is no evidence tending to 
 charge the defendant with negligence of that character, this 
 error could not have injured the plaintiff. The same instruc- 
 tion lays down the proposition that no neglect of duty on the 
 part of the defendant could relieve or excuse the plaintiff on 
 approaching the crossing from the full and free use of her 
 senses of sight and hearing, if they would have been availing, 
 in order to avoid the accident in question. As a general propo- 
 sition of law this is much too broad. The defendant might 
 have been guilty of negligence of such a character as would 
 have- lulled the plaintiff into a sense of security, and justified 
 her in relaxing in some degree the vigilance which she would 
 otherwise have been bound to exercise. But in this case, 
 no negligence of that character is shown, and as applied to the 
 peculiar circumstances of this case, the instruction is in this 
 respect substantially correct. 
 
 " The third instruction is objectionable, as being, to some 
 extent, an argument upon a mere question of fact. This would 
 have been a serious error if the evidence as to the facts dis- 
 cussed, had been conflicting. But as there is no conflict, the 
 facts involved being substantially undisputed, the jury could 
 not have been misled or embarrassed thereby. 
 
 " The eleventh and thirteenth instructions lay down, as a 
 rule of law, that it was the duty of the plaintiff's husband to 
 stop, as well as look and listen, before attempting to cross the 
 railroad. Although the courts of some of the states have 
 adopted this rule, it has never been recognized here, and we are 
 disinclined to yield it our sanction. It is a rule of law of gen- 
 eral application, that all persons are bound to exercise reason- 
 able and ordinary care and prudence to foresee danger and avoid 
 injury. The degree of care which this rule imposes is, of 
 course, proportioned to the degree of apparent danger, and 
 where the situation is one of great danger, as is usually the 
 case with the crossing of a railroad over a public highway, 
 ordinary care and prudence requires the party to be on the 
 alert, so as to make a prudent use of his senses of sight and 
 hearing, as well as of all such other expedients as the cir- 
 cumstances of the case may suggest, to secure his own safety. 
 What these expedients may be in any given case, must always 
 
APPEALS TO SUPREME COURT. 457 
 
 be a question of fact to be determined by tbe circumstances. 
 Whether in the present case it was the duty of the plaintiff's 
 husband before going onto the track, to bring his horse to a 
 halt and thus look and listen, was not a question of law to be 
 determined by the court, but a question of fact for the jury. 
 
 " But viewing it as a mere question of fact, we think the evi- 
 dence was such as to warrant and even necessitate the conclu- 
 sion that he should have stopped. We think no prudent man, 
 under the circumstances, would have failed so to do. These 
 instructions, then, although they in effect decided for the jury 
 a mere question of fact, and so were clearly erroneous, decided 
 it in a way so completely warranted by all . the evidence in the 
 case, that no material injury to the plaintiff can have resulted 
 therefrom. 
 
 " There is another respect in which several of the instruc- 
 tions are liable to serious criticism. Not only are they argu- 
 mentative in some places, but what is a more serious fault, they 
 abound in strong, mandatory and coercive expressions, which 
 could pnly have tended to interfere with the free and unbiased 
 consideration by the jury of the facts appearing in evidence. 
 Thus in the fourth instruction, the jury are told that if they 
 find certain facts from the evidence, ' The jury have no discre- 
 tion in the matter one way or the other, they must find for the 
 defendant.' The same mandate is repeated in the same lan- 
 guage in the thirteenth instruction. In several of the instruc- 
 tions the jury are told that, if certain facts are proved, ' The 
 jury must find the defendant not guilty.' In the second instruc- 
 tion it is held that certain facts, if shown by the evidence, 
 'Conclusively prove negligence' on the part of the plaintiff. 
 Such language in instructions is always objectionable and 
 should be avoided. The law should be given to the jury in such 
 terms as will leave them in the discharge of their appropriate 
 functions free from all interference or coercion, and enable them 
 to decide all questions of fact upon their own independent and 
 unbiased judgment, without suggestion, or dictation by the 
 court. 
 
 " We are of the opinion, however, that notwithstanding the 
 errors in the instructions, the verdict of the jury executes jus- 
 tice, and that the judgment should be affirmed. It is a familiar 
 
458 THE APPELLATE COURTS. 
 
 rule, supported by numerous decisions of the supreme court, 
 that a judgment will not be reversed for errors in the instruc- 
 tions, if it is manifest from the whole record that the jury 
 could not have been misled, and that justice has been done. 
 Had the jury in this case been properly instructed in all re- 
 spects, we do not think they could have reached any different 
 conclusion. It would be idle then for us to award a new trial, 
 which, judging from the present record, could result in no 
 benefit to the plaintiff." 
 
 As before shown in another part of this work (ante, 
 p. 48), the same learned judge when he presided at 
 the trial of the Moranda Case, in the circuit court, in- 
 structed the jury in express terms that a track-repairer 
 and a fireman of a passing express train, were not fel- 
 low-servants within the meaning of the rule which 
 exempts the common master from liability for an 
 injury to one employe resulting from the fault of 
 another, and because- this instruction was given the 
 supreme court reversed the judgment, stating, as their 
 reason therefor, that whether the track-repairer and 
 the fireman were fellow-servants within the meaning of 
 the rule was a question of fact for the jury, upon which 
 it was essential that the jurors should be left free to 
 form and declare, from the evidence before them, their 
 own opinion, and this, too, notwithstanding the 
 supreme court, upon a former appeal in the same case, 
 as well as in two other cases, had expressly decided 
 that a fireman and a track-repairer were not fellow- 
 servants. 
 
 To the ordinary mind it would seem clear that, if 
 jurors ought to be left free to form and declare, from 
 the evidence before them, an opinion favorable to the 
 Chicago & Northwestern Railway Company, upon a 
 question of fact in one case, they ought to be left 
 equally free to form and declare, from the evidence 
 before them, an opinion upon a question of fact 
 
APPEALS TO SUPREME COURT. 459 
 
 4 
 
 against that company and in favor of an individual 
 in another case. Had the plaintiff in this case been 
 permitted to appeal from the appellate court to the 
 supreme court, she might have satisfied the latter 
 court that the right of trial by jury was guaranteed 
 by the constitution to individuals as well as to rail- 
 way corporations. At least all will concede that she 
 ought to have been allowed the opportunity of pre- 
 senting and arguing that question to the court of last 
 resort. Even had the decision been adverse, it would 
 have accomplished some good, for, in the face of such 
 a decision, it is scarcely to be supposed the judgment 
 in the Moranda Case would have been reversed. 
 
 The Garland and Moranda Cases are but fair illus- 
 trations of the respective standing of individuals and 
 powerful corporations in the higher courts. Any in- 
 struction, which may mislead a jury, generally fur- 
 nishes a sufficient reason for the reversal of a judg- 
 ment against either one of these powerful corpora- 
 tions, and they are entitled to appeal to the highest 
 court, but an instruction coercing a jury into a verdict in 
 favor of such a corporation, is generally insufficient to 
 justify a reversal, for, in such case, "the verdict must be 
 referred to the facts which made it right, rather than 
 the instructions which would make it wrong," and the 
 party aggrieved is not permitted the right of appeal 
 that would be allowed the corporation, were the judg- 
 ment in favor of the plaintiff. 
 
 3. APPEALS FROM JUDGMENTS REVERSING AND REMANDING. 
 
 Section 90 of the Practice Act, which provides for 
 appeals from the appellate to the supreme court, 
 declares as follows : 
 
 " § 90. In all criminal cases, and in all cases where a fran- 
 chise or freehold, or the validity of a statute is involved, and in 
 all other cases where the sum or value in the controversy shall 
 
460 THE APPELLATE COURTS. 
 
 
 
 exceed one thousand dollars ($1,000), exclusive of costs, which 
 shall be heard in any of the appellate courts upon errors 
 assigned, if the judgment of the appellate court be that the 
 order, judgment or decree of the court below be affirmed, or if 
 final judgment or decree be rendered therein in the appellate 
 court, or if the judgment, order or decree of the appellate court 
 be such that no further proceedings can be had in the court 
 below, except to carry into effect the mandate of the appellate 
 court, any party to such cause shall be permitted to remove the 
 same to the supreme court by appeal or writ of error, in the 
 same manner as provided in sections sixty-seven (67) and seventy 
 (70) of this act for appeals to said appellate court." , 
 
 Under this act, construed with section 8 of the act 
 to establish appellate courts, no appeal will lie to 
 the supreme court from the judgment of the appellate 
 court reversing a judgment of a circuit court, in an 
 action at law, and remanding the cause for a new trial. 
 The only theory upon which this peculiar provision of 
 the law can be sustained is, that all judgments rendered 
 by the circuit courts against defendants, in actions at 
 law, are presumptively erroneous, and that it is impos- 
 sible for the appellate court to err in reversing such 
 judgments, though they may err in affirming them. 
 But the legislature should exhibit more respect than 
 this for the circuit courts. It ought to be presumed 
 that their judgments are at least as likely to be right 
 as wrong, and it should be assumed that appellate 
 courts, which are not so infallible but that they may 
 err in affirming judgments, might possibly err occa- 
 sionally in reversing one. 
 
 A few cases will be cited to show the benefits that 
 might result to the plaintiff, if an appeal were allowed 
 to the supreme court from a judgment of reversal. 
 
 In C. & A. R. R. Co. v. Bragonier, 11 Brad. 522, the 
 Appellate Court of the Third District, in an opinion 
 delivered by McCulloch, J., among other things, say : 
 
APPEALS TO SUPREME COURT. 461 
 
 " But the degree of care to be exercised by appellant is not 
 so carefully guarded. The fourth of appellee's instructions in- 
 forms the jury, 'that the undertaking of a railroad company 
 with its brakemen to exercise proper care to furnish safe and 
 suitable cars to work with, is a direct undertaking between the 
 railroad company itself, as the master, and its brakemen, as the 
 servant and employe,' etc. The former instructions had already 
 required of appellant a high degree of care, in providing safe 
 cars for the use of its employes. This instruction could very 
 readily be construed by the jury to mean, that appellant was 
 under contract with the deceased to exercise proper care to do so. 
 What degree of care is meant by proper care is not stated, but 
 that is left wholly to the jury. 
 
 In Stratton v. Central City Horse R'y Co., 95 111. 25, the use 
 of this term in an instruction is condemned, as leaving the jury 
 to determine a question of law as to what is proper care. The 
 court say, 'the law prescribes the degree of care required in 
 every class of cases ; in other words, what is proper care is deter- 
 mined by the law, and is to be declared by the court ; whether 
 such care has in fact been exercised in the conduct of a party, 
 in a given case, is a question of fact, which may properly be 
 submitted to a jury.' The language of the instruction in ques- 
 tion is in no way modified by any other one given on either side. 
 Under it the jury were at liberty to say that appellant was 
 bound to insure the absolute safety of its cars. * * * In view 
 of the nature of the case made out by the proof, so far as it 
 tends to prove negligence on the part of appellant, we are of 
 the opinion the rules of law were overstrained in the giving of 
 appellant's sixth and seventh instructions, and that the use of 
 the term proper care in the fourth was positively mischievous, 
 and it ought not to have been given. The judgment is there- 
 fore reversed and the cause remanded." 
 
 Had an appeal been allowed and taken to the 
 supreme court from this judgment of reversal, the 
 appellate court might have been sustained in some of 
 their rulings on the instructions, in which they were 
 " of the opinion the rules of law were overstrained," 
 but they would have been overruled in their decision 
 
462 THE APPELLATE COURTS. 
 
 upon the fourth, which they declared to be "positively 
 mischievous." For, although they followed the Strat- 
 ton Case, as they no doubt felt bound to, yet the 
 supreme court, just before the Bragonier Case was 
 decided, overruled the Stratton Case in an opinion de- 
 livered by Mr. Justice Mulkey in Schmidt v. Sinnott, 
 103 111. 160, in which, speaking of an instruction, 
 he says : 
 
 "To avoid the possibility of doing counsel injustice in 
 attempting to state the substance of their criticism of this 
 instruction, we give it in their own words. It is as follows : 
 ' Instruction number three of this series authorizes a verdict for 
 the plaintiff if she was ' using due and proper care ' at the time 
 of the accident, and when by ' using ordinary and proper care' 
 the defendants might have avoided committing the injury. 
 What is due and proper care, as the court says in Stratton v. 
 Cent. City R'y Co., 95 111. 25, is a matter of law, and is to be 
 ascertained and defined by the court. Such an instruction is an 
 abdication of its functions by the court, and submits problems 
 of law to the jury which frequently tax the capacity of the 
 ablest jurists.' 
 
 "The objection to this instruction, as we understand it, 
 consists in the use of the phrase 'using due and proper care.' 
 Had the framer of the instruction used the words 'ordinary 
 care,' instead of ' due and proper care,' we presume the instruc- 
 tion would be unexceptionable to counsel. We confess we are 
 unable to perceive the force of the criticism. It is the province 
 of law to determine in the abstract what is ordinary care as 
 well as what is due care, and there is no difference in the 
 character of the two expressions, viewed from this standpoint. 
 But where a plaintiff bases his right to recover for an injury 
 received at the hands of the defendant, in part upon an allega- 
 tion that at the time of receiving such injury he was exercising 
 due care, and such allegation is traversed by the defendant's 
 plea, the issue thus formed presents a question of fact for the 
 determination of the jury, precisely in the same manner as if 
 the words 'ordinary care' had been used. To the unprofes- 
 sional mind these terms would doubtless convey substantially 
 
APPEALS TO SUPREME COURT. 463 
 
 the same meaning ; and for all practical purposes, when applied 
 to an actual case in court, they do amount to the same thing. 
 Due and proper care simply means that degree of care which 
 the law requires under a given state of circumstances, so that 
 in every case where the measure of diligence is ordinary care, 
 the exercise of such ordinary care would, within the meaning 
 of the law, be using due care in that particular case, and so it 
 would be in a case where the law exacts a higher degree of dili- 
 gence. The exercise of this higher degree of diligence would, 
 within the meaning of the law, be using due care or diligence 
 under the circumstances of that case. 
 
 " The term ' ordinary care,' when used in a general sense, 
 without reference to the facts of any particular case, comes 
 nearer expressing, perhaps, a definite measure of responsibility 
 than the expression 'due care,' yet the degree of diligence 
 which it implies greatly varies according to the character of 
 the circumstances to which it relates. A slight examination of 
 the precedents, as found in Chitty and other standard authors, 
 will show that in actions for personal injuries the expressions 
 'due care,' and 'due and proper care,' are uniformly used in 
 charging the degree of diligence or care alleged to have been 
 exercised by the plaintiff at the time of receiving the injury 
 complained of ; and in actions against carriers for loss of goods, 
 and also for injuries to the person, the same terms are almost 
 uniformly used in charging the degree of care which the carrier 
 assumed, and also in assigning a breach of such undertaking. 
 It is therefore clear that these terms are not only proper when 
 thus used, but are technically correct, and where the allegations 
 of a declaration thus framed are properly traversed, the ques- 
 tions whether the plaintiff did, and whether the defendant did 
 not, exercise due and proper care, as charged in the declaration, 
 are presented directly as questions of fact for the determination 
 of the jury. So in the case before us, one of the plaintiff's 
 material allegations, upon which an issue was formed and sub- 
 mitted to the jury, is, that at the time of the receiving of the 
 injury she was using, ' due and proper care.' 
 
 " Upon what principle, then, can it be said that an instruc- 
 , tion framed in the very words of the issue is improper, as sub- 
 mitting for the determination of the jury a mere question of 
 
464 THE APPELLATE COUETS. 
 
 law, which simply tells the jury, in order to recover it must 
 appear from the evidence the plaintiff was exercising due and 
 proper care at the time of receiving the injury ? If the ground 
 of the objection is the court should have inserted in the in- 
 struction the legal signification of those terms, the answer is, 
 we know of no rule of law requiring it. The words are in 
 common use, and are just as well understood by the generality 
 of men as the words 'in good faith,' 'without notice,' 'mali- 
 ciously,' 'fraudulently,' and the like. If instead of 'due and 
 proper care,' the words ' ordinary care ' had been used, it is not 
 pretended that it would have been necessary to have inserted in 
 the instruction the legal meaning of the latter terms, and if 
 there is no such requirement as to them, upon what reasonable 
 ground or theory can it be claimed any such necessity exists as 
 to the words ' due and proper care' ? It could not seriously be 
 contended for a moment there is any legal presumption that 
 the jury would understand the legal signification of one set of 
 terms and not the other. To require the court to insert the 
 meaning of all the terms and expressions used in an instruc- 
 tion, to make it unobjectionable, would tend to utter confusion 
 rather than aid the jury in arriving at a just conclusion with 
 reference to the case before them. If it is necessary to explain 
 the terms used in an instruction, would it not be equally neces- 
 sary to explain the terms of the explanation? And if so, 
 where would the matter stop ? 
 
 " It is often highly important, and even indispensable, for 
 the court to explain to the jury the meaning of technical terms 
 not in common use, or define the meaning of words or phrases 
 used in a contract, statute, or the like, and even in the case 
 before us it would have been altogether proper for the court, 
 on its own motion or on the application of either of the par- 
 ties, to have given an instruction specifically defining what was 
 meant by ' due and proper care,' as applicable to the case in 
 hand, but there was no absolute necessity for doing so unless 
 such an instruction had been asked; nor was there any more 
 reason or propriety, in the absence of such application, for 
 giving such an instruction, than there would have been under 
 like circumstances had the term ' ordinary care.' been used, for 
 the reason, as we have already seen, there is no principle of law 
 
APPEALS TO SUPKEME COUET. 465 
 
 which requires one of these expressions to be explained to the 
 jury more than the other. The views here expressed are fully 
 sustained by a long line of decisions : Miller v. Balthasser, 78 
 111. 302 ; Kerr v. Forgue, 54 id. 482 ; Chicago, Burlington & 
 Quincy R. R Co. v. Gregory, Admx., 58 id. 272 ; Indianapolis & 
 St. Louis R. R. Co. v. Evans, 88 id. 63 ; Schmidt, Admx., v. Chi-, 
 cago & Northwestern R. R. Co. et al., 83 id. 405 ; Indianapolis 
 & St. Louis R. R. Co. v. Stables, 62 id. 313 ; and if some of the 
 expressions of the court in the case of Stratton v. Central City 
 Horse R'y Co., 95 111. 25, are in conflict with what is here said, 
 they must be regarded as modified by the present opinion." 
 
 Suppose this " positively mischievous " use of the 
 term "proper care" had been the only supposed error 
 found in the Bragonier Case, and for that error alone 
 the judgment had been reversed, would there be any 
 justice in requiring appellee to pay the costs of the 
 appeal to the appellate court, and submit to a new 
 trial, when, by an appeal to the supreme court, the, 
 judgment of the appellate court would have been re- 
 versed, and that of the circuit court affirmed ? Surely 
 such an appeal should be allowed or the appellate 
 court, before reversing a judgment upon the strength 
 of an opinion of the supreme court, should be required 
 to be reasonably certain that the decision about to be 
 relied upon, had not been, or would not be, overruled. 
 
 In P., C. & St. L. R'y Co. v. Shannon, 11 Brad. 222, 
 the following, among other instructions; were given 
 for the plaintiff : 
 
 " 1. The jury are instructed that, if they believe from the 
 evidence in this case, that the crossing where the injury referred 
 to in this case occurred, was a public highway and street-cross- 
 ing in the city of Chicago, where large numbers of vehicles and 
 foot passengers were in the habit of passing, and that defend- 
 ant did not have a flagman at said crossing when said accident 
 occurred at said crossing, and immediately prior thereto, to 
 warn approaching wagons and foot passengers of the approach 
 of locomotive engines in that way ; had such a flagman, and 
 
466 THE APPELLATE COURTS. 
 
 that suck flagman failed to give the plaintiff sufficient and 
 timely warning, by signaling or otherwise, of the approach of 
 the engine which came in contact with plaintiff's wagon, and 
 that the plaintiff was injured thereby, while using all reason- 
 able care and diligence on his part in crossing said railway track 
 or tracks, then the jury should find for the plaintiff. 
 
 "2. In this case, though the jury may belieye from the 
 evidence, that the plaintiff was guilty of some slight negligence, 
 which contributed to the alleged injury complained of in the 
 declaration filed in this cause, yet, if the jury further belieye, 
 from the evidence, that the defendant, by its servant or ser- 
 vants, was guilty of gross negligence in that regard, and that 
 the injury complained. of was caused thereby, and that the neg- 
 ligence of the plaintiff was but slight, then the plaintiff is 
 entitled to recover. 
 
 "4. The court instructs the jury that if they find for the 
 plaintiff in this case, they may take into consideration, in assess- 
 ing the damages, not only his actual outlay in curing himself 
 of his injuries, if any such has been proved, and the value of the 
 property which was destroyed, if any such has been proved, but 
 also his pain and suffering of body, if any have been proved, and 
 in computing his damages, they shall assess the same at such 
 sum, not exceeding amount claimed in the declaration, as shall 
 appear to them reasonable under the evidence, taking into ac- 
 count his permanent injuries, if any such have been found." 
 
 The opinion of the appellate court, as delivered by 
 Bailey, J., is as follows : 
 
 " The first instruction given for the plaintiff, as the same 
 appears in the transcript of the record, could only have had a 
 tendency to confuse and mislead the jury. Counsel for the 
 appellee suggest that the clerk of the court below, in transcrib- 
 ing the instruction, omitted the word 'or' before the words 
 ' had such a flagman,' and that we should read the instruction 
 as though that word were supplied. It is a sufficient answer to 
 the suggestion to say, that we are bound by the record as trans- 
 mitted to this court. If it has been erroneously transcribed, it 
 was within the power of the party prejudiced by such error, at 
 any time before the final hearing, to suggest a diminution of 
 
APPEALS TO SUPREME COURT. 467 
 
 the record and have the error corrected by an amended trans- 
 script from the court below. Having failed to do this, the 
 appellee is precluded from insisting that the instruction does not 
 appear in the record precisely as it was given to the jury. 
 
 " The plaintiff's second instruction fails to state the rule of 
 comparative negligence with entire accuracy. In Quinn v. 
 Donnovan, 85 111. 194, the court say : ' The rule, as has often 
 been said by this court, is, a plaintiff may recover where his 
 negligence is slight as compared with the defendant's, which is 
 gross.' So in I. C. R. R. Co. v. Hammer, 85 111. 526, it is said: 
 ' The rule has often been laid down, that where a plaintiff has 
 been guilty of negligence contributing to the injury, he cannot 
 recover, unless the negligence of the defendant is gross, and not 
 then, unless the negligence of the plaintiff is slight in compari- 
 son with that of the defendant.' 
 
 " The rule is stated in substantially the same language in 
 C. & N. W. R'y Co. v. Dimick, 96 111. 42, and in numerous other 
 cases to which reference might be made. It must not only ap- 
 pear, then, that the defendant's negligence is gross, and that of 
 the plaintiff but slight, but that they are so when compared 
 with each other. See Moody v. Peterson, ante. In the state- 
 ment of the rule in the plaintiff's instruction, the element of 
 comparison is omitted, and in that respect it fails to state the 
 rule correctly. The question of the comparative negligence of 
 the parties was one of the leading questions in the case, and it 
 should therefore have been accurately submitted to the jury. 
 
 " The plaintiff's fourth instruction was erroneous in so far as 
 it submitted to the jury the question of permanent injury to the 
 plaintiff, there being, as it seems to us, no evidence tending to 
 show permanent injury. The only witness who testified to the 
 nature and extent of said injuries was the plaintiff himself ; and 
 while his evidence tends to show that, at the time of the trial, 
 he was still suffering some pain and weakness consequent upon 
 the injury, it nowhere appears that his ailments are of such a 
 nature that he is not likely to recover from them, and no wit- 
 ness ventures an opinion that they are or will be permanent. 
 The jury, however, may have concluded that, in the opinion of 
 the court, there was sufficient evidence to warrant a finding' on 
 that subject. Instructions which submit to the jury questions 
 
468 THE APPELLATE COURTS. 
 
 of fact upon which there is no evidence, have been uniformly 
 held to be erroneous. 
 
 " As the case must be submitted to another jury, we forbear 
 discussing the questions of fact elaborately argued by counsel, 
 but for the errors in the foregoing instructions the judgment 
 will be reversed and the cause remanded." 
 
 This case ought certainly to have been taken to the 
 supreme court because of the questions of law pre- 
 sented, which were manifestly of great importance on 
 account of both principal and collateral interests. 
 
 The opinion of the appellate court, so far as it 
 relates to the first instruction, is not sufficiently defi- 
 nite. It declares that the instruction could only have 
 had a tendency to confuse and mislead the jury, but 
 gives no reason for that conclusion. Jurors, as has 
 already been stated, are men "of fair character, of 
 approved integrity, of sound judgment, and who under- 
 stand the English language." How any man of com- 
 mon sense, even with a very limited knowledge of the 
 English language, could fail to understand the instruc- 
 tion to mean that, if a flagman was not stationed at 
 the crossing, or if one was stationed there and failed 
 to discharge his duty, and thereby the plaintiff, while 
 exercising due care, was injured, the plaintiff could 
 recover, it is difficult to comprehend. The importance 
 of having questions of grammar, like this, passed upon 
 by the supreme court, is self-evident. 
 
 An opinion of the supreme court upon the question 
 of the necessity of the " essence " to a perfect state- 
 ment of the doctrine of comparative negligence, 
 following, as it would have followed, closely after 
 the Johnson Case, would also have been decidedly 
 interesting, and might have resulted in an elaborate 
 discussion by which that celebrated doctrine would 
 again have been " somewhat modified." 
 
APPEALS TO SUPREME COURT. 469 
 
 The question presented by the ruling of the appel- 
 late court upon the fourth instruction, is also one 
 which should have been determined by the court of 
 last resort. In City of Chicago v. Scholten, 75 111. 471, 
 Mr. Justice Scott, in delivering the opinion of the court, 
 with reference to an instruction upon the question of 
 damages, says : 
 
 " One reason suggested why this instruction should have 
 been refused is, that it is not based on any evidence in the case. 
 This is a misapprehension of the facts. Where there is any 
 evidence, however slight, it is sufficient to sustain an instruc- 
 tion upon the hypothetical case it tends to prove. * * * In 
 the case at bar, proof was made of the age of the deceased, the 
 names of the next of kin, and that his parents were laboring 
 people. These facts alone were sufficient on which to base an 
 instruction embodying the principle contained in this one. It 
 was not indispensable there should be proof of actual services of 
 pecuniary value rendered to the next of kin, nor that any wit- 
 ness should express an opinion as to the value of such services 
 before a recovery could be had." 
 
 But in the Shannon Case the evidence tended to 
 show that, at the time of the trial, which must have 
 been nearly eighteen months after the injury, the 
 plaintiff was still suffering some pain and weakness 
 consequent upon the injury, and yet it was held that, 
 because it nowhere appeared that his ailments were of 
 such a character that he was not likely to recover from 
 them, and no witness ventured to express an opinion 
 that they were permanent, there was no evidence 
 tending to show permanent injury, upon which the 
 instruction could be based. By the same kind of rea- 
 soning it would seem that pain and weakness, conse- 
 quent upon an injury ten years after its infliction, 
 would not be any evidence tending to show permanent 
 injury, slight though such permanent injury might be. 
 
470 THE APPELLATE COUETS. 
 
 The point made against this instruction by the ap- 
 pellate court is about as meritorious as, and certainly 
 no more so than, thqge made in the C, B. & Q. E. R. Co. 
 v. Warner, 108 111. 544, in which Mr. Justice Mulkey, 
 in delivering the opinion of the court, says : 
 
 " It is first objected the court erred in giving the plaintiff's 
 third instruction. It is as follows : 
 
 "'If, under the evidence and instructions of the court, the 
 jury find the defendant guilty, then, in estimating the plain- 
 tiff's damages, it will be proper for the jury to consider the 
 effect of the injury in future upon the plaintiff, the use of his 
 arm, and his ability to attend to his affairs generally, in pursu- 
 ing any ordinary trade or calling, if the evidence shows that 
 these will be affected in the future, and also the bodily pain 
 and suffering he sustained, and all damages, present and future, 
 which, from the evidence, can be treated as the necessary and 
 direct result of the injury complained of.' 
 
 "The first two objections to this instruction, as stated in 
 counsel's own language, are : First, ' there was no evidence that 
 the loss of Warner's arm did, or would impair his ability to 
 pursue his business, much less of the extent to which said 
 ability would be lessened.' Second, ' there was no evidence of 
 the extent of the pain Warner had suffered, other than the loss 
 of his arm, and that pain, as an element of damage, could not 
 be inferred from that fact.' * * * 
 
 " We are unable to agree with counsel that the proof of the 
 crushing and mangling of plaintiff's arm from the fingers up 
 to within a few inches of the shoulder, and of its subsequent 
 amputation at that place, as is shown by undisputed testimony, 
 affords no evidence of that degree of pain which would mate it 
 a proper element to be considered by the jury in estimating the 
 damages. The rules of evidence are but the product of human 
 experience and common sense, and hence they never require the 
 performance of an unnecessary or useless thing. One of the 
 most elementary of these rules is, that no proof is required of 
 facts which everybody is presumed to know. When such facts 
 become material in a legal controversy, it is the duty of courts 
 and juries to take notice of them, and act upon them without 
 
APPEALS TO SUPREME COURT. 471 
 
 proof. It is also part of the common experience of all, that 
 many facts are so intimately connected with and dependent 
 upon each other, that the proof of one necessarily establishes 
 the other, or at least affords so strong a presumption of the bat- 
 ter's existence, that no additional proof of it will be required 
 until such presumption is overcome by countervailing testimony. 
 In fact, the whole theory of inductive proof is but the practical 
 application of this fundamental principle. (1 Wharton on Evi- 
 dence, sec. 327, et seq.) To satisfactorily prove a given act. also 
 establishes, at least prima facie, the ordinary and probable con- 
 sequences of such act ; and as pain uniformly follows the crush- 
 ing of a bone or the laceration of the flesh of one in a normal 
 condition, which is always presumed when nothing to the con- 
 trary appears, the jury in this case were fully warranted in in- 
 ferring the fact of pain from the character of appellee's injuries, 
 which were fully shown, — hence it cannot be truthfully said 
 there was no evidence to base the instruction upon, so far as it 
 related to the pain or suffering of appellee. Indeed, we do not 
 think any general words of the witness, such as, ' I suffered a 
 great deal,' ' The pain was very severe,' and the like, would have 
 marked more definitely the quantum or degree of suffering than 
 the simple recital of the mangled condition of the arm, requir- 
 ing its amputation. 
 
 " But it is suggested, that while some pain might be inferred 
 from the injury itself, yet the extent of appellee's sufferings 
 should have been otherwise shown in order to make it an 
 element in the assessment of damages. This position is clearly 
 not tenable, either upon reason or authority. Where, in such 
 case, the law permits a recovery at all, the plaintiff will be 
 entitled to some compensation for his sufferings, whether they 
 be much or little, and the fact that the amount of suffering is 
 not definitely fixed by the testimony, if, indeed, that is possible 
 in any case, will make no difference in this-respect. In all cases 
 like the present, where a recovery is permitted at all, if there is 
 any evidence tending to prove the fact of pain, whether much 
 or little, it is the right of the plaintiff to have the jury instructed, 
 if they shall so find the fact, to take it into account in making 
 up their verdict. 
 
472 THE APPELLATE COURTS. 
 
 " All that is here said is equally applicable to the objection 
 ' there was no evidence that the loss of Warner's arm did, or 
 would, impair his ability to pursue his ordinary business,' etc. 
 At the time of receiving the injury his business was that of 
 railroading. He had made his way up from a brakeman to a 
 conductor of a freight train. By reason of the accident he lost 
 his position as an employe of the company, and it is manifest, 
 from the loss of the arm itself, that he could not successfully, if 
 at all, follow that business any longer, and the fact he was 
 forced to abandon it was before the jury. That both arms are 
 useful in all, and indispensable in most, of the avocations of life, 
 is but a part of the common information of mankind in general, 
 and hence it required no other proof to establish it. With these 
 facts before the jury, it is difficult to understand by. what process 
 of reasoning the conclusion is reached there was no evidence 
 upon which to found the instruction, so far as it related to the 
 impairment of appellee's ability to pursue his ordinary business 
 by reason of the loss of his arm." 
 
 , Had the Shannon Case gone to the supreme court, 
 it would probably have been held that, as everybody 
 knows there cannot be pain and weakness consequent 
 upon an injury a year and a half after its infliction, 
 without some permanent impairment of the injured 
 party's physical condition, it was not necessary to call 
 an expert to prove that fact, and that therefore the 
 instruction was not obnoxious to the objection urged 
 against it. 
 
 Other cases decided by the appellate courts might 
 be cited to demonstrate the propriety of allowing ap- 
 peals from judgments reversing and remanding. But 
 no such demonstration ought to be necessary. They 
 should be allowed not only for the purpose of prevent- 
 ing unjust reversals by the appellate courts, but also 
 to enable the defeated party to make sure that if his 
 case is tried a second time, and the directions of the 
 appellate court are followed, his judgment, if he ob- 
 tain one, will be sustained not only by the appellate, 
 
APPEALS TO SUPREME COURT. 473 
 
 but also by the supreme court. Under the present 
 practice the opinion of the appellate court delivered 
 upon the reversal of a judgment, is binding upon the 
 trial court in the particular case in which it is given, 
 and also upon the appellate court, when the case again 
 comes before them, but it is not binding upon the 
 supreme court, and that court may reverse the second 
 judgment, because the directions given by the appel- 
 late court in reversing the first judgment, were erro- 
 neous. 
 
 Again, although the statute declares that the opin- 
 ions of the appellate court shall not be of binding 
 authority in cases other than those in which they are 
 filed, yet, as a matter of fact, they are regarded as bind- 
 ing, and are followed in other cases, for no circuit 
 judge would be likely to make a ruling which he knew 
 would be disapproved of by the appellate court. From 
 this it follows, that erroneous decisions made by the 
 appellate courts, and which, under the present law, 
 cannot be corrected by the supreme court, may be 
 productive of great injury to others not parties to the 
 suits in which they are rendered. 
 
 Finally it must be said that a statute which should 
 refuse an appeal when the appellate court concurred 
 with, and allow it, when they differed in opinion from, 
 the trial court, would have some reason in favor of its 
 propriety, but one which allows the appeal when the 
 two courts concur, and refuses it when they differ, is, 
 upon its very face, an absurdity. Nor is it any the 
 less an absurdity, because it may be supposed to have 
 a tendency to relieve the supreme court from work. 
 If the judges of the supreme court are overworked, it 
 is, to a great extent, their own fault. Should they 
 adopt the policy of reversing judgments only when 
 substantial errors have been committed, which must 
 have affected the results, they would at once relieve 
 
474 THE APPELLATE COURTS. 
 
 themselves of at least one-half their work, for appeals 
 would not be brought before them for the argument of 
 mere moot questions, but only to secure redress for 
 real and substantial wrongs. 
 
 4. LIMITING POWER OP SUPREME COURT. 
 
 Some method should be devised by which the 
 supreme court, in reviewing the judgments of the 
 appellate courts affirming judgments of the trial courts, 
 should be confined to the consideration of only impor- 
 tant questions of law. As the trial of a cause in a 
 circuit court, without the occurrence of some trivial 
 errors, is almost impossible, and as the appellate court 
 are required to review the facts, their judgment of 
 affirmance should be held to eliminate from the case all 
 those technical errors, which might have affected the 
 result, but in the opinion of the appellate court did 
 not, leaving for review by the supreme court only 
 those rulings of the trial court, which must necessa- 
 rily have affected the result. 
 
 As the law now stands and as it is construed by the 
 supreme court, they have the power and exercise it, of 
 passing upon all the errors of the trial court, and of 
 reversing a judgment for any error which might have 
 affected the result. It follows from this practice that 
 the proceedings of the trial court in cases involving 
 over $1,000, are subjected to examination by two 
 bodies of critics instead of one, as before the organiza- 
 tion of the appellate courts, and it must, indeed, be a 
 very clean record, especially in a railroad case, that 
 can successfully run the gauntlet of both these courts. 
 If one, perchance, overlooks a technical error, or holds 
 it could have done no harm, the other is almost sure 
 to detect it, and hold it might have done harm and 
 therefore reverse the judgment. The effect of this 
 system is shown in the first chapter of this work, 
 
APPEALS TO SUPREME COURT. 475 
 
 where statistics are produced to show that while, 
 before the organization of the appellate courts, an in- 
 dividual had one chance in six of sustaining a judg- 
 ment of over $1,000 against either of the four leading 
 railroad companies, yet since, and by reason of the 
 creation of these courts, his chances have been re- 
 duced to one in twelve, and by the creation of a court 
 of errors and appeals to review the judgments of the 
 supreme court, they would be reduced to one in thirty- 
 six. 
 
 Had there been in force, at the time of the hearing 
 by the appellate and supreme courts of the six cases of 
 appeals mentioned in the first chapter, a provision 
 confining the supreme court to important questions of 
 law, neither one of those judgments would have been 
 reversed. Take, for example, the Moranda Case. The 
 chief ground upon which the judgment in that case 
 was reversed by the supreme court, was the giving of 
 the instruction that Moranda and the fireman were 
 not fellow-servants. That this instruction was tech- 
 nically erroneous was known to the appellate court 
 quite as well as to the supreme court. But the appel- 
 late court, after a careful consideration of all the evi- 
 dence, as well as, of the previous decisions of the 
 supreme court, were satisfied the error did no harm, 
 and that the result of the trial would necessarily have 
 been the same had the instruction not been given, and 
 for that reason affirmed the judgment. The supreme 
 court, however, being of the opinion that the instruc- 
 tion was technically erroneous, reversed the judgment 
 without paying any attention to the question whether 
 the verdict would have been different, had the jury 
 been told the definition of fellow-servants, and "left 
 free to form and declare, from the evidence before 
 them, their opinion upon the question of fact." 
 
476 THE APPELLATE COURTS. 
 
 As a further illustration of the results of a review 
 by the appellate and supreme courts of all the rulings 
 of trial courts, in the class of cases under consideration, 
 it is deemed proper to cite the case of the North. Chi- 
 cago Rolling Mill Company ,v. Mary Morrissey, Admx., 
 lately decided by the supreme court and not yet 
 reported. The action was brought to recover damages 
 ■ for negligence resulting in the death of the plaintiff's 
 intestate. The declaration alleged that the defendant 
 was operating a railroad, and that Morrissey, the 
 deceased, was a switchman in its employ, and, while 
 riding upon one of its locomotive engines and exercis- 
 ing due care and diligence, was struck and killed by a 
 certain wall or fence which the defendant had negli- 
 gently constructed too near the track. Upon the trial, 
 evidence was introduced tending to establish the charge 
 of negligence alleged in the declaration. It was also 
 proven that the deceased was able to and did earn 
 sixty dollars a month ; that at the time of his death, 
 March 18, 1881, he was twenty-seven years old, and 
 that he left surviving a widow and four children. The 
 jury returned a verdict in favor of the plaintiff for 
 $4,000, upon which judgment was rendered in the trial 
 court July 7, 1882. Upon appeal to the Appellate Court 
 of the First District, this judgment was there affirmed. 
 Thereupon the defendant prosecuted an appeal to the 
 supreme court, where, on March 26, 1884, the judgment 
 of the appellate court was affirmed, and Mr. Justice 
 Dickey, in delivering the unanimous opinion of the 
 court, among other things, said : 
 
 " It is also insisted that the trial court erred in giving, refus- 
 ing and modifying instructions which were submitted to the 
 court as applicable to the case. We think the charge of the 
 court to the jury, as a whole, laid down the law correctly and as 
 fully as necessary. The objections to those given at request of 
 the plaintiff are hypercritical, and some of them pervert the 
 
APPEALS TO SUPREME COURT. 477 
 
 plain expressions of the instruction. We are satisfied the jury 
 could not have been misled by anything found therein." 
 
 After deciding that certain modifications, made by 
 the trial court to instructions offered by the defendant, 
 were proper, the learned judge concluded as follows : 
 
 " We deem it unnecessary to discuss other instructions in 
 detail. Finding no substantial error as to questions of law, the 
 judgment of the appellate court is affirmed." 
 
 Upon the 24th of April, 1884, a petition for a 
 rehearing was filed on behalf of appellant, the intro- 
 ductory part of which is as follows : 
 
 " May it please the Coubt :~ 
 
 " Before proceeding with the presentation of the petition in 
 this ease, we beg leave to offer a personal explanation. It is this: 
 
 " After reading the opinion filed herein, we sent it to the 
 appellant without comment. The opinion came back to us, 
 accompanied by a letter as follows : 
 
 " ' Office of North Chicago Rolling Mill Co. 
 " ' Chicago, April 1st, 1884. 
 
 " ' Att'ys at Law, Chicago, 111. 
 
 " ' Gesttlemest : I am in receipt of yours of the 28th ult., 
 with the opinion of the Supreme Court affirming the judgment 
 in the Morrissey case, and which I herewith return to you. 
 
 "' I am at a loss to understand how or on what ground this 
 Company have been held liable in this case. The bin and tracks, 
 substantially as located, are essential to the business of this Com- 
 pany, and are not necessarily dangerous, and have been in safe 
 and practical use daily for nearly twenty years, and this accident 
 — claimed to have been by reason of the dangerous location of 
 this bin — is the first one that has occurred. If there was any 
 danger attending the placing of cars on the track, for the pur- 
 pose of unloading, it was a risk so small and incidental to the 
 business of the Company, and so obvious to the casual observer, 
 in our judgment it could hardly be considered a risk. Such as it 
 was, however, we have always understood the risk to be assumed 
 by our employes. 
 
478 THE APPELLATE COURTS. 
 
 " ' If there remain any steps that can properly be taken to 
 obtain a different result from that of the opinion of Judge 
 Dickey, for the Supreme Court, please act accordingly, as, al- 
 though we are an interested party, I believe our Company are 
 disposed to be fair, and judge of these things from an impartial 
 standpoint, but I certainly consider this decision a most unjust 
 one to this Company. Very truly yours, 
 
 "'0. W. Pottek, PresV 
 
 " There was no other step known to us which could be taken, 
 except to petition your Honors for a rehearing. To lend our aid 
 to such a proceeding was unpleasant ; for, although a rule 
 authorizes the practice, yet a resort thereto might possibly be 
 deemed evidence of a disposition to criticise the court in respect 
 to its decisions. And a belief, if held by a member of the court, 
 that a practitioner is thus disposed, might impair the latter's 
 influence in the administration of justice. Furthermore, it is 
 but natural that the court should lean strongly to an affirmance 
 of the decision already reached, and it is not to be presumed that 
 the court has not given the subject as careful attention as its 
 duties to the public business would permit. 
 
 Such considerations tended to deter us from taking further 
 action. But, in view of our clients' conviction that the deci- 
 sion did great injustice, we felt called upon to make some 
 response. We could not assure the appellant that, in our judg- 
 ment, the result was in accordance with law, for the reason that 
 the eoal bin and the coal track, by means of the location of 
 which the deceased is alleged to have lost his life, were, as 
 located, necessary and well-known agencies in the business of 
 the company, and the danger, if any, which they caused to the 
 deceased as a switchman was obvious. To us the result, as 
 expressed. in the opinion of the court, seemed undeniably against 
 the law of the case. Therefore, professional duty compelled us 
 to give notice under the rule for rehearings ; and it is not with- 
 out a deep sense of our responsibility to the court and to our 
 clients that we proceed to submit the reasons why we think a 
 rehearing should be granted." 
 
 The rehearing prayed for in this petition was 
 allowed at the following September term, and on the 
 
APPEALS TO SUPKEME COURT. 479 
 
 17th day of November, 1884, the judgment was re- 
 versed and the cause remanded. In delivering the 
 opinion of the majority of the court, Mr. Justice Shel- 
 don, after stating some of the facts in the case, says : 
 
 " Among the errors assigned is the giving of the following 
 instruction for the plaintiff : 
 
 " ' 3. The jury are instructed that the plaintiff cannot re- 
 cover unless she has proved that she is the administratrix of the 
 estate of the deceased, Michael Morrissey, and that he, the de- 
 ceased, left him surviving a widow and next of kin, who have 
 suffered pecuniary loss by his death ; yet, if they believe, from 
 the evidence in this case, that the plaintiff is the duly appointed 
 administratrix of the estate of deceased, and that he, the de- 
 ceased, left him surviving a widow and next of kin, who have 
 suffered pecuniary loss by his death, and that under the instruc- 
 tions and evidence the defendant is guilty as charged in the 
 declaration, they should find for the plaintiff, and may give 
 such damages as they shall deem a fair and just compensation 
 for the pecuniary loss resulting from such death to the widow 
 and next of kin of deceased, not exceeding $5,000.' 
 
 "The question of contributory negligence was raised and 
 was a very important one in the case. This instruction entirely 
 ignores the question of contributory negligence. It purports 
 to be complete in its statement of what will authorize a re- 
 covery, and omits the requirement of any care or caution on the 
 part of the deceased. In this respect the instruction is erro- 
 neous, as we have heretofore repeatedly held. C, B. & Q. R. R. 
 Co. v. Harwood, 80 111. 88 ; C. & N. W. R'y Co. v. Dimick, 96 
 id. 42 ; Wabash, St. L. & P. R'y Co. v. Shacklet, 105 id. 364 ; 
 City of Peoria v. Simpson, 110 id. 294. 
 
 " The instruction is objectionable in another respect under 
 the decision in C, B. & Q. R. R. Co. v. Sykes, 96 111. 162, in that 
 it allowed the jury to give such damages as they should deem a 
 fair and just compensation, regardless of the proof. Such a 
 clause in an instruction in that case was condemned and it 
 was said of it : ' This part of the instruction leaves the jury at 
 liberty to find any amount not exceeding the amount claimed, 
 
480 THE APPELLATE COURTS. 
 
 without the slightest reference to any proof of the amount of 
 damages sustained. 1 
 
 "Where the verdict of the jury is not more satisfactory 
 upon the evidence than it is in the present case, this court has 
 always insisted upon the importance of accuracy in the in- 
 structions to the jury. For error in the giving of the above 
 instruction, the judgment will be reversed and the cause re- 
 manded." 
 
 From this opinion Mr. Justice "Walker and Mr. 
 Justice Dickey dissent, the latter stating that he is 
 inclined to believe the judgment should be reversed 
 on other grounds, which he has no time to specify. 
 
 The objections taken by the majority of the court 
 to the instruction, it will be observed, are two in num- 
 ber. The first is, that it ignored the question of con- 
 tributory negligence. The second is, that it authorized 
 the jury to estimate the damages from other sources 
 of information than the evidence. 
 
 To the first objection the best answer that can be 
 given is to repeat the language used by the court in 
 C, B. & Q. R. R. Co. v. Payne, 59 111. 542, where as has 
 been heretofore shown (ante, p. 374), Mr. Justice Mc- 
 Allister, in delivering the opinion of the court, with 
 reference to an instruction to which the same objec- 
 tion was made, says : 
 
 " We do not think the instruction obnoxious to criticism, 
 as claimed. It is not an unusual, nor is it an objectionable 
 practice, where plaintiff's counsel desire an instruction as to the 
 rule of damages, to say to the jury that, if they find from the 
 evidence that the defendant is guilty as charged in the declara- 
 tion, then the plaintiff is entitled to recover, and to define the 
 measure of damages. Such a mode obviates the necessity of 
 stating, and perhaps reiterating hypothetically, each element of 
 the cause of action, before coming to the real point of the in- 
 struction. The declaration here alleges that the death of Albert 
 Y. Payne was caused by the wrongful acts, neglect and default 
 of defendant's servants, while he was exercising due care." 
 
APPEALS TO SUPREME COURT. 481 
 
 The point of the instruction was simply the meas- 
 ure of damages. It was not intended as a statement of 
 the facts -necessary to be found by the jury, to entitle 
 fche plaintiff to a verdict, but only to inform them that 
 if, under the instruction and the evidence in the case, 
 they found a verdict for the plaintiff, they should 
 ascertain the damages as stated in the' instruction. If 
 the ruling of the court be correct, the trial courts 
 must, indeed, be careful even when instructing the 
 jury as to the form of their verdict, for fatal error 
 would be committed by giving such an instruction as 
 the following : " If the jury find a verdict in favor of 
 the plaintiff, its form will be : We, the jury, find the 
 defendant guilty, and assess the plaintiff's damages at 
 
 (Here insert amount)." Such an instruction 
 
 would, according to the view of the supreme court, 
 mislead the jury into the belief that a verdict might 
 be rendered for the plaintiff, without regard to the 
 question of contributory negligence, and this, too, not- 
 withstanding some twenty-four instructions for the 
 defendant might give them ample information upon 
 that point. (See Dimick Case, 96 111. 42, ante, p. 363). 
 
 The second objection to the instruction, while it 
 would seem to be sustained by Rule First {ante, p. 344), is, 
 after all, rather a trivial one. The instruction simply 
 repeats to the jury the language of the statute, which 
 declares that " in every such action the jury shall give 
 such damages as they shall deem a fair and just com- 
 pensation," and which by no means confines the jury 
 to the evidence in the case. The legislature intended 
 that the jury should estimate the damages in such 
 cases from the evidence and from their own observa- 
 tion and experience. But even were it conceded that 
 the instruction was technically erroneous in this re- 
 spect, what harm was done thereby ? The deceased 
 was twenty-seven years of age at the time of his death, 
 
482 THE APPELLATE COURTS. 
 
 and was earning wages to the amount of sixty dollars 
 per month. The judgment, which was for $4,000, was 
 rendered a little over one year and three months after 
 his death. To suppose that, under the circumstances, 
 the judgment was larger than it should have been, or 
 that it could possibly have been increased by the 
 omission of the words " from the evidence/' is, mildly 
 speaking, ridiculous. 
 
 The best answer to both the objections, however, 
 Was given by the court themselves when they unani- 
 mously said : 
 
 " The objections to those given at request of the plaintiff 
 are hypercritical, and some of them pervert the plain expressions 
 of the instruction." 
 
 How it is that the court could unanimously an- 
 nounce such an opinion and, six months afterward, 
 five of the judges come to the conclusion that objec- 
 tions, which they had regarded as hypercriticisms 
 and perversions of the plain expressions of the in- 
 struction, were in reality fatal errors, is a question of 
 so much difficulty that it will be left to the reader 
 to solve for himself. It is sufficient, for present pur- 
 poses, to say, that the fact that the supreme court 
 so readily reverse their own decisions upon points such 
 as are presented by the instruction in question, clearly 
 illustrates the difficulties that the plaintiff encounters, 
 when compelled to run the gauntlet of two such 
 courts. The necessity of legislation which shall pre- 
 vent such occurrences in the future, is too apparent to 
 require further discussion. 
 
 But -the most interesting part of the record in this 
 case is the introductory portion of the petition for a 
 rehearing. The insertion, in the petition, of a letter 
 from the client to the attorney, is certainly a novel 
 method of arguing a case. It must, however, here- 
 
APPEALS TO SUPREME COURT. 483 
 
 after be regarded as a good one, and if a letter from 
 the president of a rolling-mill company, or of a rail- 
 road company, which is found guilty of negligently 
 killing a man, is a proper introduction to a petition 
 for a rehearing on behalf of the company, a letter 
 from the widow of the man killed must be equally 
 proper, when the judgment is reversed and a rehearing 
 is applied for. A very interesting letter might be 
 written in almost every such case. Thus, Mary 
 Morrissey, with a little assistance from her attorneys, 
 might have addressed to them a letter setting forth 
 how lamentable was her condition, left as she was by 
 her husband's death with four helpless children to 
 support, and with no means other than those derived 
 from the labor of her own hands ; that she had waited 
 patiently for three years for the decision of her case ; 
 that she could not understand why it was that, when 
 so simple a case had been tried and passed upon by a 
 judge and jury, and an appellate court of three very 
 able judges, and the judgment had been unanimously 
 approved by seven judges of the supreme court, and 
 the objections made to an instruction had been de- 
 clared by them to be hypercriticisms, and perversions 
 of the plain language thereof, six of those seven 
 judges should change their opinion and reverse that 
 judgment, and five of them declare that the in- 
 struction was fatally erroneous; and that, although 
 she was an interested party, she was disposed to be 
 fair, and to judge of these things from an impartial 
 standpoint, but that she certainly considered this last 
 decision of the court as a most unjust one to herself 
 and her children. 
 
 Again, the expression of reluctance on the part of 
 appellant's counsel to take so serious a step as to 
 apply for a rehearing, is very amusing, especially to 
 those who are familiar with the fact that petitions for 
 
484 THE APPELLATE COUETS. 
 
 rehearings are filed in nearly, if not quite, one half 
 the cases decided by the supreme court, at least in the 
 Northern Grand Division. It is believed it would be 
 no great exaggeration to say, that there are but very 
 few lawyers in this state who are able to write, and 
 whose clients are able to pay for the printing of 
 petitions for rehearings, who do not file them in all 
 cases in which they are defeated. And why should 
 they not do so, if the decision in the case under review 
 is a fair illustration of the manner in which causes 
 are determined in the supreme court ? The failure 
 of an attorney, when defeated in any case, to file a 
 petition for a rehearing, ought to be regarded as negli- 
 gence so gross as to authorize " the presumption of an 
 intention to injure generally." 
 
 The most remarkable statement, however, con- 
 tained in the petition in this case is, that a resort to a 
 petition for a rehearing "might possibly be deemed 
 evidence of a disposition to criticise the court in respect 
 to its decisions, and that a belief, if held by a member 
 of the court, that a practitioner is thus disposed, might 
 impair the latter's influence in the administration of 
 of justice." This statement amounts to an intimation 
 that the decisions of the supreme court may be, to 
 some extent, the results of the "influence" of attor- 
 neys, and that an attorney's "influence upon the 
 administration of justice" may be impaired by his 
 indulging in criticisms of the opinions of the court. 
 Were this true, it might furnish abundant food for 
 reflection to the writer of a book devoted to free criti- 
 cism of the court. It might well be supposed the court 
 would be inclined to punish an attorney for improper 
 conduct, but the idea that the punishment would con- 
 sist of an erroneous and unjust judgment against his 
 client, is not one to be entertained. Nor is it to be sup- 
 posed that an attorney's success depends upon his "in- 
 
WRITTEN OPINIONS. 485 
 
 fluence" with the court. If such were the case, and if the 
 amount of that " influence " depended upon the extent 
 to which the attorney might go, in- playing the hypo- 
 crite by professing respect for opinions of the court 
 that were not deserving of respect, and in resorting to 
 flattery and other means equally base, the profession 
 of the law should no longer be regarded as an honor- 
 able one. 
 
 Had the supreme court stricken this petition for a 
 rehearing from the files, they would have done a very 
 creditable act, one far more. commendable than the 
 allowance of the rehearing, and the reversal of the 
 judgment and of their own unanimous opinion. " 
 
 '5. REQUIRING WRITTEN OPINIONS. 
 
 There has been much discussion of the question 
 whether the judges of the appellate courts should be 
 required to write opinions, in cases in which they affirm 
 the judgments of the trial courts, as well as in, those 
 in which they reverse. That they should give the 
 reasons for their decisions in all cases, at the request 
 of the parties interested, there can be no doubt ; but 
 a statutory provision, requiring them to file written 
 opinions in all cases, would be of questionable pro- 
 priety. In the first place, the legislative department 
 has no right to dictate to the judiciary whether their 
 decisions shall be announced orally, or in writing. 
 This question has already been discussed, in the pre- 
 ceding chapter, and what is there said need not be 
 repeated here. In the second place, if opinions were 
 written in all cases, they would, undoubtedly, be pub- 
 lished, and there would be five volumes of Bradwell's 
 Reports per annum, instead of two, as at present, and 
 this could not but be regarded as a serious calamity. 
 Again, the preparation of written opinions in all cases 
 would impose unnecessary labor upon the judges, and 
 
486 THE APPELLATE COURTS. 
 
 would consume time, which could be used to better 
 advantage in a consideration of the merits of the 
 cases decided. 
 
 Under the present system, the parties can have no 
 just cause of complaint ; for, any party against whom 
 a decision has been rendered by the appellate court, 
 can, upon application to the judges, if no opinion has 
 been filed, ascertain the grounds and reasons of the 
 decision. This is all that can justly be expected. The 
 questions presented, in many of the cases taken to the 
 appellate courts, are of a frivolous character, and not 
 worthy of being discussed in written opinions ; and in 
 those ' cases in which questions of importance and 
 difficulty are presented, and in which written opinions 
 ought to be delivered, the judges should be credited 
 with sufficient good sense to properly discharge their 
 duty. 
 
 6. REMANDING OF CAUSES BY SUPREME COURT. 
 
 Under the present practice, an appellee or defend- 
 ant in error, whose judgment is reversed by the supreme 
 court, is obliged to wait until a succeeding term of the 
 appellate court, file therein a certified copy of the judg- 
 ment of reversal, and, by motion, secure a reversal, by 
 the appellate court, of the judgment of the circuit 
 court, before he can proceed to a new trial of his case. 
 In other words, he must return from the supreme to 
 the circuit court, over the same course by which he 
 went from the latter to the former. Why this should 
 be so, it is difficult to perceive. It is not required by 
 the statute, nor by the constitutional provision that 
 guarantees right and justice speedily and without 
 delay. But, as it seems to be the established practice, 
 the statute should provide that, when the judgment of 
 an appellate court is reversed by the supreme court, 
 the judgment of the latter court shall be, that the judg- 
 ment of the appellate court and the judgment of the 
 
TEEMS OP COURT. 487 
 
 circuit court be reversed, and the cause remanded to 
 the circuit court, or that the judgment of the appellate 
 court be reversed, and that of the circuit court affirmed, 
 as the* case may be. 
 
 Great injustice is often done, under the present 
 statute, as it frequently happens that it requires nearly 
 six months longer to get a case returned from the 
 supreme to the circuit court, than it would, were it 
 remanded, as it should be, directly to the latter court. 
 
 7. TERMS OF APPELLATE COURTS. 
 
 The present statute provides for two terms a year, 
 of each of the appellate courts. The propriety of 
 having terms is questionable. It would be far better 
 to provide that these courts shall always be open for 
 business, excepting at such times as the judges may 
 deem it proper to adjourn them. The administration 
 of justice, to be effectual, must be speedy ; but this 
 cannot be, when it requires from four to six months to 
 get from the trial to the appellate court, as many 
 more to get from the latter to the supreme court, and, 
 in case of a reversal by the latter court, as many 
 months to get back to the circuit. The law should 
 require judgments appealed from to be brought before 
 the appellate courts within, from thirty to ninety days 
 from the date of the appeal, the time to be fixed by 
 the trial court, and to be extended by the appellate 
 court, where justice requires it. 
 
 Writs of error could be made returnable at such 
 time as the appellate court should order, and such 
 writs of error and appeals could be disposed of in such 
 manner as the appellate courts should deem advisable. 
 Their sense of official duty, as well as a healthy public 
 sentiment in favor of speedy justice, would, no doubt, 
 prompt them to dispose of causes as rapidly as was 
 
488 THE APPELLATE COURTS. 
 
 consistent with the circumstances of each particular 
 case. 
 
 With these and a few other changes, the appellate 
 court system will answer well enough for the present. 
 Perfection at the very commencement of any system 
 is not to be hoped for. Nihil simul inventum est etper- 
 fectum, is a saying of great antiquity and is peculiarly 
 applicable to the act under consideration. As it now 
 stands, it is an obstruction to the proper administra- 
 tion of justice. It encourages appeals on frivolous 
 grounds. It promotes unnecessary delays. It imposes 
 upon poor litigants needless costs and expenses, and 
 furnishes to the rich and powerful the means of op- 
 pression. It unjustly discriminates in favor of defend- 
 ants and against plaintiffs. For these reasons it should 
 be promptly amended. 
 
CHAPTER IX. 
 
 BRIBERY BY RAILWAY PASSES. 
 
 The question, whether it is proper for public officials 
 to accept and use free-passes presented to them by- 
 railway companies, is one upon which there has been 
 considerable discussion of late, and which, no doubt, 
 will continue to be discussed, more or less, until these 
 corporations shall be prohibited by law from making 
 such .gifts. In the January number of the North 
 American Review for 1884, there are two papers, in 
 which both sides of the question are very ably pre- 
 sented. In one, it is argued, in substance, that free 
 passes are, as a general rule, only given to individuals 
 who occupy positions enabling them to advance the 
 interests of railway companies, such as judges, legis- 
 lators, prominent public officials, township assessors, 
 and others ; that they are given for the purpose of 
 exerting an undue and an improper influence upon 
 their recipients ; that they do, in many cases, have 
 such an effect ; and that the belief on the part of the 
 public that judges, among others, are unduly influenced 
 thereby, is steadily undermining and destroying that 
 confidence in our courts of justice, which should be 
 universally entertained. 
 
 In the other, it is argued, in substance, that the 
 railway company is peculiarly situated ; that it cannot 
 vote or hold office, rejoice at weddings, or mourn at 
 funerals, pays no pew-rent, and has no children at the 
 
 489 
 
490 BRIBERY BY RAILWAY PASSES. 
 
 public schools, etc.; that there is great public prejudice 
 against it, "swaying the farmer, the merchant, the 
 mechanic, the shipper, the courts and the legislature "; 
 that it knows its situation and has every incentive to 
 deal fairly with the public; that its free passes are 
 supposed to be, and generally are, given to men of the 
 most influence and standing in the communities where 
 they reside. It is not denied that the object, for which 
 they are generally given, is to ward off hostile legisla- 
 tion and unjust judgments of the courts, begotten of 
 prejudice; but, it is claimed, no harm is done thereby ; 
 that "the reports of the courts may be searched in 
 vain for even an apparent injustice to any plaintiff 
 in a suit against a railway, while the books are choked 
 with cases, where verdicts, clearly the result of passion 
 and prejudice, have been permitted to stand against 
 the companies " ; and that " the records of the legisla- 
 tures of the northwestern states reveal no friendly 
 laws ; but, on the contrary, hostile legislation is con- 
 tinually expected, and seldom denied." It is further 
 said that "the principal complaints against passes 
 come from the non pass-holders, who are the ma-; 
 jority"; that "if the pass supply was equal to the de- 
 mand, there would be no complaints." Finally, tt is 
 said, that, to the legislator who seeks notoriety, the 
 free-pass system will furnish a fine opportunity. 
 
 It is, no doubt, true that the principal complaints 
 against passes come from the non-passholders, but 
 that proves nothing. The principal complaints against 
 larceny, burglary and murder, come from those who 
 are neither thieves, burglars nor murderers, and yet 
 that fact in no manner lessens the enormity of those 
 crimes. Attacks upon the free-pass system, if made at 
 all, must of necessity come from the non-pass holders, 
 for, as a distinguished statesman has well said : 
 
IN GENERAL. 491 
 
 "All history shows that reforms in government must not 
 be expected from those who sit serenely on the social mountain 
 tops, enjoying the benefits of the existing order of things. Even 
 the Divine Author of our religion found His followers, not 
 among the self-complacent pharisees, but among lowly-minded 
 fishermen." 
 
 The source, whence comes the attack upon the free- 
 pass system, is, however, wholly immaterial. A pass- 
 holder could, no doubt, make a strong argument against 
 free passes. All know that a corrupt judge may 
 severely condemn corruption, for it was the "wisest, 
 brightest, meanest of mankind" who, speaking of 
 judges, said: ' 
 
 "Above all things, integrity is their portion and proper 
 virtue. 'Cursed (saith the law) is he that removeth the land- 
 mark.' The mislayer of a mere stone is to blame ; but it is the 
 unjust judge that is the capital remover of landmarks, when he 
 defineth amiss of land and property. One foul sentence doth 
 more hurt than many foul examples ; for these do but corrupt 
 the stream, the other corrupteth the fountain — so saith Solomon, 
 ' Fons turbatus, et vena corrupta est Justus cadens in causa sua 
 coram adversario.' * * * The place of justice is a hallowed place ; 
 and therefore not only the bench, but the foot-pace, and pre- 
 cincts, and purprise thereof ought to be preserved without 
 scandal and corruption 5 for certainly, grapes (as the Scripture 
 saith), 'will not be gathered of thorns or thistles,' neither can 
 justice yield her fruit with sweetness among the briars and 
 brambles of catching and polling clerks and ministers." 
 
 Again, if the acceptance of free-passes by public 
 officials is immoral and is so regarded by the public 
 generally, it is not made any the less so by the fact 
 that a great many men are guilty of it. This was 
 well illustrated by Lord Macauley, when he said : 
 
 " That an immoral action is, in a particular society, gener- 
 ally considered as innocent, is a good plea for an individual who, 
 being one of that society, and having adopted the notions which 
 
492 BRIBERY BY RAILWAY PASSES. 
 
 prevail among his neighbors, commits that action. But the 
 circumstance that a great many people are in the habit of com- 
 mitting immoral actions, is no plea at all. We should think 
 it unjust to call St. Louis a wicked man, because in an age in 
 which toleration was generally regarded as a sin, he persecuted 
 heretics. We should think it unjust to call Cowper's friend, 
 John Newton, a hypocrite and a monster, because, at a time 
 when the slave trade was commonly considered by the most 
 respectable people as an innocent and beneficial traffic, he went, 
 largely provided with hymn-books and hand-cuffs, on a Guinea 
 voyage. But the circumstance that there are fifty thousand 
 thieves in London, is no excuse for a fellow who is caught 
 breaking into a shop. ' No man is to be blamed for not making 
 discoveries in morality, 'for not finding out that something 
 which everybody else thinks to be good is really bad. But if a 
 man does that which he and all around him know to be bad, it 
 is no excuse for him, that others have done the same." 
 
 The question is one of importance to the people of 
 this state, especially with respect to its bearing upon 
 the administration of justice. As we have already seen, 
 the four leading railroad companies, if we may judge 
 of the future by the past, and if tables of reversals and 
 affirmances are as reliable as tables of mortality, (and 
 no reason is perceived why they should not be), can 
 reasonably expect to secure, from the higher courts, 
 the reversal of eleven out of twelve of the judgments 
 of over $1,000 each, which may be rendered against 
 them in the circuit courts, in actions for negligence, 
 in which cases the law is, that a mere preponderance 
 of evidence will justify a verdict in favor of a plaintiff. 
 On the other hand, individuals convicted in the circuit 
 courts of crimes, and sentenced to death or imprison- 
 ment, although entitled to the benefit of every reason- 
 able doubt, both as to the law and the evidence, can 
 only expect the reviewing courts to grant them new 
 trials in two cases out of five. 
 
IN GENERAL. 493 
 
 This disproportion between the reversals in railroad 
 cases and the reversals in criminal cases is produced, 
 in part, at least, because the higher courts apply in 
 favor of railroad companies, in. civil cases, rules of law 
 which they refuse to apply in favor of individuals con- 
 victed of criminal offenses. Thus, for instance, in 
 railroad cases the almost invariable rule is, that each 
 single instruction must be correct in itself, without 
 reference to others, while in criminal cases the rule 
 generally applied is, that it is sufficient if the instruc- 
 tions, when considered as a whole, state the law with 
 substantial accuracy. These and- other discrimina- 
 tions, in favor of the railroad companies and against 
 the individuals, have already been sufficiently noticed. 
 
 Again, the statutory provisions, which define the 
 duties of railroad companies, and which provide for the 
 trial and disposition of causes in the circuit, appellate 
 and supreme courts, give those corporations unjust 
 and unfair advantages over individuals, especially in 
 actions brought for negligence, and poor litigants, who 
 endeavor to prosecute suits for injuries to persons or 
 property, are, as a general rule, worse off than they 
 would be, were no remedies at all provided by law for 
 the redress of" their grievances. 
 
 Such being the condition of the administration of 
 justice, and it being well known that nearly every leg- 
 islative and judicial officer of the state is supplied 
 with free passes upon all the railroads upon which he 
 may desire to travel, a discussion of the propriety of 
 the free pass system would seem to be peculiarly 
 appropriate, when the doings of the courts and of the 
 legislature, so far as they relate to railway corpora- 
 tions, are under review. It is a matter of the utmost 
 importance that, if, on the one hand, the free pass 
 system is proper, demonstration should be made of its 
 propriety, so that it will be acquiesced in and approved 
 
494 BRIBER'S BY RAILWAY PASSES. 
 
 by all good citizens, or if, on the other hand, it is im- 
 proper, it should be shown to be so, and abandoned by 
 all public officials who enjoy its benefits. 
 
 It is proposed, therefore, to discuss briefly, first, the 
 purpose for which free passes are given ; second, their 
 effect upon their recipients ; and third, their effect 
 upon the public. 
 
 First. It is self-evident that free passes are given 
 for some purpose, for almost all human actions are the 
 results of motives of some kind. What, then, is the 
 purpose ? Are they given to judges for the purpose of 
 inducing them to sustain verdicts against railroad 
 companies, that are manifestly the result of passion 
 and prejudice on the part of jurors ? Are they given 
 to legislators to so warp their judgment as to lead them 
 to pass laws that are disadvantageous to railroad com- 
 panies ? Are they given to township assessors to 
 induce them to assess railroad property higher than it 
 ought to be assessed ? Are they given to mayors and 
 aldermen to influence them to the passage of stringent 
 ordinances regulating the speed of trains; requiring 
 gates or flagmen at crossings, and imposing severe 
 penalties for the violation thereof ? Are they given to 
 the city attorney to increase his zeal in instituting and 
 conducting prosecutions for the violation of such ordi- 
 nances ? To so hold "would 'violate the experience of 
 all persons, and be contrary to the reason of all men." 
 
 It is equally improbable that they are given merely 
 from motives of charity, for, in the first place, the 
 recipients are not in situations requiring charity, and, 
 in the second place, a corporation can have no feelings 
 of charity, for if it could have, a railroad company 
 would make judges, legislators, and others, who now 
 ride free, pay their fare, and devote the proceeds to the 
 payment of many just claims for damages which are 
 resisted in the courts. Certainly it would not permit 
 
EFFECT UPON THE DONEES. 495 
 
 a well paid judge to ride free, and compel a poor and 
 needy minister of the gospel to pay half fare. 
 
 The truth is, and it never has been, and cannot be, 
 denied, that these free passes are given for the purpose 
 of creating in their recipients friendly feelings toward 
 the donors — feelings which might not be so manifestly 
 entertained under other circumstances. For this rea- 
 son, when they are given to judges and legislators, by 
 those having suits in court or desiring to accomplish 
 or defeat proposed legislation, they must be character- 
 ized as bribes, and as nothing else, and the bribery is 
 none the less censurable because it is in accordance 
 with a long established custom, the abandonment of 
 which might result in some temporary disadvantage 
 to the railway companies. 
 
 Second. That these presents tend to accomplish the 
 purpose for which they are given, is manifest. A free 
 pass is a thing of value, and often adds a large sum 
 annually to the net income of the holder. It is not 
 reasonable to suppose that judges and legislators .can, 
 year after year, enjoy such gifts without gradually 
 coming to the conclusion that railway corporations 
 . are not as bad institutions as the general public im- 
 agine, and that the popular prejudice against them is 
 wholly unjustifiable. The inevitable result is that suits 
 against them for negligence are viewed with suspicion 
 and are rarely sustained, and legislation, demanded by 
 the people to ensure greater care in the operation of 
 railroads, is looked upon as the outgrowth of an 
 unwarranted popular hostility to wealthy corpora- 
 tions. This occurs, not because judges and legislators 
 knowingly, and willfully do wrong, but because they 
 are bribed and unduly influenced, without realizing 
 that such is the effect upon them of these free passes. 
 
 Judges may be a little wiser in some respects, but ' 
 they are no better than a great many people who do 
 
496 BKIBEB.Y BY KAILWAY PASSES. 
 
 not occupy judicial positions. They are no more 
 honest, nor any less susceptible to improper influences 
 than the majority of jurors. Any influence, improper 
 to be brought to bear upon a juror by either party to 
 a suit, should be regarded as equally improper to be 
 brought to bear upon a judge. Jurors are only called 
 upon to decide questions of fact, while judges are 
 required to decide questions of law, as well as to review 
 the findings of jurors as to the facts. Unjust verdicts 
 of juries can generally be corrected by judges; but 
 unjust decisions of judges, and especially those of the 
 courts of last resort, cannot be relieved against. 
 Hence the necessity that there should be no bias on 
 the part of judges, is much more urgent than that 
 of having jurors entirely freed from undue influences. 
 In this view of the matter, it becomes important to 
 inquire into the rules which judges have laid down as 
 necessary to be applied to jurors. 
 
 In Thompson and Merriam on Juries, section 372, 
 the law is declared to be as follows : 
 
 " Where a juror lias been treated, fed or entertained by the 
 successful party, or at his expense, a new trial will, in nearly all 
 cases be granted. This rule is, by most courts, deemed indis- 
 pensably necessary to preserve the integrity of juries. It 
 being, as already stated, a rule of public policy, it will be enforced 
 without reference to the question whether or not the verdict 
 was right." 
 
 In Co. Litt. 227 b, cited in support of the above 
 rule, the law is thus stated : 
 
 " If the jurie, after their evidence given unto them at the 
 barre, doe, at their own charges eate or drinke, either before or 
 after they be agreed on their verdict, it is finable, but it should 
 not avoid the verdict ; but if, before they be agreed on their 
 verdict, they eate or drinke at the charge of the plaintiff, if the 
 verdict be given for him, it shall avoid the verdict ; but if it be 
 given for the defendant, it shall not avoid it ; and sic e converso. 
 
EFFECT UPON THE DONEES. 497 
 
 But if, after they be agreed on their verdict, they eate or drinke at 
 the charge of him for whom they doe passe, it shall not avoid 
 the verdict." 
 
 Applying the same principle to judges, it might 
 well be said that, if railway companies only gave free 
 passes to judges after the expiration of their terms of 
 office, no great harm would be done. But the practice 
 is exactly the reverse. Passes are only given to judges 
 when they are in office, and are withheld upon their 
 retirement. This can only be explained upon the the- 
 ory that railroad companies act upon a principle some- 
 what analogous to that expressed by the maxim, when 
 the reason of a rule ceases, the rule itself also ceases. 
 
 In section 375 of the same work on Juries, the 
 following is stated with reference to the rulings in 
 Georgia : 
 
 " Thus, in Georgia, in cases where counsel for the prevailing 
 party, without any imputation of improper motive, entertained 
 members of the jury, or even their horses, new trials were 
 granted. The court in this latter case said : ' The honor of the 
 bar and the perfect purity of a jury, alike demand their entire 
 separation in their personal and social intercourse whilst trials 
 are progressing. However harmless in themselves, as was the 
 conduct of our respected brethren in this case, we feel ourselves 
 called upon, in this and in every case where this separation is 
 not preserved with the utmost care, to eviuce in the most deci- 
 sive manner our purpose to shut up every avenue through which 
 corruption or the influence of friendship could possibly make 
 an approach to the jury-box. 11 
 
 And, in section 376 of the same work, the following 
 is stated, with reference to the ruling in other juris- 
 dictions : 
 
 " Accordingly, where it did not definitely appear that there 
 were private conversations with the jurors on the subject of the 
 case ; but it did appear that unusual civilities and attentions 
 were paid to several of them ; that they were treated more than 
 
498 BRIBERY BY RAILWAY PASSES. 
 
 once ; that this was clone in such a manner and under such cir- 
 cumstances as to render it in the highest degree probable that it 
 was not inadvertant and only so far as called for by the ordinary 
 proprieties of life, but for the purpose of influencing their ver- 
 dict, — it was held sufficient ground for a new trial. So, where 
 a party to a suit sought a juror and attempted to impress his 
 mind with the justice of his claim, and did, during the session 
 of the court at which his action was tried, carry him to the 
 house of a friend, where he was gratuitously provided with 
 refreshment and lodging, the verdict was set aside, although it 
 might have been right on the merits. So, where, during a recess 
 in the trial of a cause, one of the parties took all the jurors, 
 the opposite party, and the witnesses, into a saloon and treated 
 them, and, after the cause had been given to the jury, and when 
 they were retiring to consider on their verdict, passed down the 
 back way with some of them into a saloon, and again treated 
 them, — this was held such misconduct as tended to corrupt the 
 channels of justice, and the verdict was set aside." 
 
 Such being the rules regulating the conduct of jurors, 
 and the consequences of their misconduct, let us sup- 
 pose that, in a suit brought by an individual against a 
 railway corporation, there should be a verdict for the 
 defendant, and that, upon the motion for a new trial, 
 it should be made to appear that, after the jurors had 
 been sworn to well and truly try the matter in issue, 
 and a true verdict re„nder according to the evidence, 
 each one of them had been presented by defendant's 
 attorney with a thousand-mile ticket ; suppose, further, 
 that the motion for a new trial should be over- 
 ruled, and the case should come for review before an 
 appellate tribunal, every judge of which, ever since 
 being duly sworn to discharge the duties of his office 
 to the best of his ability, had not only possessed and 
 used a free pass presented to him by the same railway 
 corporation, but had also secured from such railway 
 corporation free transportation for numerous friends 
 and relatives, what would be the inevitable result ? 
 
EFFECT UPON THE DONEES. 499 
 
 Manifestly, the affirmance of the judgment would be 
 in violation of all precedents and would bring reproach 
 upon the administration of justice, while its reversal 
 would completely and effectually stultify each and 
 every one of the judges who concurred in the decision. 
 
 When a judge has once succeeded in reconciling his 
 acceptance of free passes with his sense of propriety, 
 no reason is perceived why he may not deem it of 
 equal propriety to accept a gold watch, from a corpo- 
 ration engaged in the manufacture of gold watches, or 
 a few shares of its stock, from a national bank, when 
 either one of these corporations becomes a party to a 
 suit in his court. Indeed, if he concurs in the view of 
 the advocates of the free pass system, that the popular 
 prejudice against railway corporations justifies them 
 in presenting, and himself in accepting free passes, for 
 the purpose of making inequality equal, the same pro- 
 cess of reasoning will justify him in accepting a 
 present from any rich litigant, who may imagine him- 
 self to be the victim of popular prejudice ; and thus 
 he might permit the miller to supply him, with flour, 
 the butcher with meat, and so on until all his wants 
 were supplied gratuitously. To say that any judge 
 could indulge in such practices, and yet be wholly 
 unbiased when passing upon the rights of litigants, is 
 manifestly absurd. 
 
 It has been claimed that judges were warranted in 
 accepting free passes, because such passes are used 
 upon public business ; that the judges are compelled 
 to do considerable traveling to and from places 
 where they are required to hold court, and that, 
 therefore, the furnishing of free transportation by 
 railway companies is not for the benefit of the judges 
 themselves, but for the benefit of the state. There 
 might, perhaps, seem to be something in this claim, 
 if judges only used their passes when traveling to 
 
500 BRIBERY BY RAILWAY PASSES. 
 
 and from the places of holding court, and upon 
 business concerning the public. But there is noth- 
 ing to justify the belief that judges, or any of them, 
 pay their fare when traveling upon private business 
 or for pleasure. There is grave reason to believe 
 they act about as did the members of the German 
 parliament, whose passes, given, to them by the gov- 
 ernment, were revoked by Bismarck, on the ground 
 that they used them when traveling upon other than 
 public business, and that, according to his view of the 
 matter, was simply scandalous. 
 
 Regardless, however, of how or when the passes 
 are used, the fact that judges travel upon public busi- 
 ness is no reason why they should be permitted, to 
 avail themselves of free transportation. A judge of 
 the circuit or supreme court can not, of course, hold 
 court at the places required by law, without doing 
 some traveling ; but neither can he properly perform 
 the duties of his office without eating, or without be- 
 ing supplied with clothing, and would any sane man 
 contend that it would be proper for the proprietor of 
 a hotel, and the tailor, who had cases in court, to supply 
 the judge with, and for the judge to accept of them, 
 board and clothing free of charge, upon the flimsy 
 pretense that such things were necessary to enable the 
 judge to transact the public business ? No defender 
 of corrupt practices has yet been bold enough to claim 
 that any such conduct could be approved of. It is idle 
 for judges to attempt to justify themselves upon any 
 such ground. The distinction between this and any 
 other kind of bribery is, to use the very forcible ex- 
 pression of Lord Eldon, " too thin to form a safe rule 
 of justice." 
 
 Another answer to this claim, if it needed any 
 further answer, is, that the acceptance by the judges 
 of the supreme and circuit courts of free passes, is a 
 
EFFECT UPON THE DONEES. 501 
 
 violation of a plain provision of the constitution. 
 Section 16, of article VI, is as follows : 
 
 "§16. From and after the adoption of this constitution, 
 judges of the circuit courts shall receive a salary of $3,000 per 
 annum, payable quarterly, until otherwise provided by law. 
 And, after their salaries shall be fixed by law, they shall not be 
 increased or diminished during the terms for which said judges 
 shall be, respectively, elected ; and from and after the adoption 
 of this constitution, no. judge of the supreme or circuit court 
 shall receive any other compensation, perquisite or benefit, in 
 any form whatsoever, nor perform any other than judicial duties 
 to which may belong any emoluments." 
 
 This language is too plain to admit of construction. 
 It means precisely what it says. The prohibition is 
 against receiving " any other compensation, perquisite 
 or benefit, in any form whatsoever." If a free pass, 
 given by a railroad company, a corporation subject to 
 control by, and exercising to a certain extent the sov- 
 ereign power of, the state, to a judge simply because 
 he is a judge, is not a "perquisite" or "benefit," will 
 some one be kind enough to tell us what it is ? 
 
 It is said, however, that judges are not influenced 
 by these free passes, and that, therefore, no harm 
 is done. In proof of this the fact is cited, that, al- 
 though nearly all the circuit judges are supplied with 
 passes, yet railroad companies are almost always 
 defeated in the circuit courts. To this it may be 
 replied, that, if circuit judges are not thus influenced, 
 it is because they mingle with the people ; their deci- 
 sions are made in the presence of the jury, the bar, the 
 parties litigant, and the public, and it may be that, 
 under these circumstances, they are put upon their 
 guard against exhibiting any partiality for railway cor- 
 porations. Again, if the rulings of circuit judges, in the 
 matter of giving instructions, furnish any indication 
 of their feelings towards railroad companies, it would 
 
502 BRIBERY Bt RAILWAY PASSES. 
 
 only be necessary to examine a few records in railroad 
 cases to discover sufficient evidence of partiality on 
 the part of circuit judges towards these corporations. 
 The instructions given by circuit judges of this state, 
 at the request of railroad companies, in actions brought 
 against them, are, in many cases, plain and palpable 
 violations of law and common sense. 
 
 It is not, however, incumbent upon the opponents 
 of free passes to show that judges who accept them 
 are thereby unduly influenced. On the contrary, free 
 passes, being things of pecuniary value, and being 
 presents given to judges, because they are judges, 
 and by those having suits in court, and because they 
 have suits in court, are prima facie bribes, and the 
 burden is upon the judges to show no such effect 
 is produced. This manifestly cannot be done. In this 
 age of uncertainty, when it is impossible for the most 
 skillful to predict the judgment of a court upon a dis- 
 puted question of law, the court pronouncing any 
 decision in favor of a railroad company, is powerless 
 to show that railway passes have not had weight in 
 producing it. No matter how just the court may in 
 fact be, the people, adopting the same kind of reason- 
 ing which induces the court to hold that a judgment 
 against a railroad company must be reversed for an 
 erroneous instruction, because it might have misled the 
 jury, will condemn the reversal, because free passes 
 might have misled the judges. 
 
 Third. The question then remains, what effect do 
 these practices have upon the public ? Conceding, for 
 the purposes of the argument, that free passes are not 
 given as bribes and that judges are not influenced 
 thereby, yet, if the giving and accepting of such pres- 
 ents has a tendency to undermine the confidence of 
 the people in the integrity of the courts, and to bring 
 reproach upon the administration of justice, all will 
 
EFFECT UPON THE PUBLIC. 503 
 
 concede that the sooner judges cease to avail them- 
 selves of free transportation on railroads, the better 
 it will be for themselves and for the people, whose 
 servants they are. The next greatest evil to an 
 administration of justice which is actually corrupt, 
 is one which is believed by the people to be corrupt. 
 Let us look at this matter in a common sense way. 
 Give the people of this state a thorough understand- 
 ing of the extraordinary success of railway corpora- 
 tions in the higher courts, and tell them that the 
 judges of those courts are supplied with and use free 
 passes, and what will they say ? Many will declare 
 that the judges are corrupted ; nineteen out of twenty 
 will say they are at least biased ; and all, excepting, 
 perhaps, the pass-holders, will agree that their conduct 
 is not commendable. It is undeniable that public 
 sentiment is strongly opposed to the free-pass system, 
 and, in a government of the people, for the people, 
 and by the people, an almost unanimous public senti- 
 ment, when not the result of mere temporary excite- 
 ment, ought to be respected by every public official, 
 when not inconsistent with a proper discharge of the 
 duties of his office. 
 
 Lord Macauley, in his review of Montagu's Life of 
 Lord Bacon, after denying Montagu's statement that 
 the practice by judges of accepting presents was con- 
 sidered as innocent in Bacon's time, says : 
 
 " We could give a thousand proofs that the opinion then 
 entertained concerning these practices was such as we have de- 
 scribed. But we will content ourselves with calling a single 
 witness, honest Hugh Latimer. His sermons, preached more 
 than seventy years before the inquiry into Bacon's conduct, 
 abound with the sharpest invectives against those very prac- 
 tices of which Bacon was guilty, and which, as Mr. Montagu 
 seems to think, nobody ever considered as blamable till Bacon 
 was punished for them. We could easily fill twenty pages 
 
504 BRIBERY BY RAILWAY PASSES. 
 
 with the homely but just and forcible rhetoric of the brave old 
 bishop. We shall select a few passages as fair specimens, 
 and no more than fair specimens, of the rest. ' Omnes diligunt 
 munera. They all love bribes. Bribery is a princely kind of 
 thieving. They will be waged by the rich, either to give sen- 
 tence against the poor, or to put off the poor man's cause. 
 This is the noble theft of princes and magistrates. They are 
 bribe-takers. Nowadays they call them gentle rewards. Let 
 them leave their colouring, and call them by their Christian 
 name bribes.' 1 And again : ' Cambyses was a great emperor, such 
 another as our master is. He had many lord deputies, lord presi- 
 dents, and lieutenants under him. It is a great while ago since 
 I read the history. It chanced he had under him in one of his 
 dominions a briber, a gift-taker, a gratifier of rich men ; he 
 followed gi£ts as fast as he that followed the pudding, a hand- 
 maker in his office to make his son a great man, as the old say- 
 ing is : Happy is the child whose father goeth to the devil. 
 The cry of the poor widow came to the emperor's ear and caused 
 him to flay the judge quick, and laid his skin in the chair of 
 judgment, that all judges that should give judgment afterward 
 should sit in the same skin. Surely it was a goodly sign, a 
 goodly monument, the sign of the judge's skin. I pray God we 
 may once see the skin in England.'' ' I am sure,' says he in an- 
 other sermon, ' this is scala inferni, the right way to hell, to be 
 covetous, to take bribes, and pervert justice. If a judge should 
 ask me the way to hell, I would show him this way. First, let 
 him be a covetous man ; let his heart be poisoned with covetous- 
 ness. Then let him go a little further and take bribes ; and, 
 lastly, pervert judgment. Lo, here is the mother, and the daugh- 
 ter and the daughter's daughter. Avarice is the mother ; she 
 brings forth bribe-taking, and bribe-taking perverting of judg- 
 ment. There lacks a fourth thing to make up the mess, which, 
 so help me God, if I were judge, should be hangum tuum, a 
 Tyburn tippet to take with him ; an it were the judge of the 
 King's Bench, my Lord Chief Judge of England, yea, an it were 
 my Lord Chancellor himself, to Tyburn with him. 1 We will 
 quote but one more passage : ' He that took the silver basin and 
 ewer for a bribe, thinketh that it will never come out. But he 
 may now know that I know it, and I knew it not alone ; there 
 
EFFECT UPON THE PUBLIC. 505 
 
 be more beside me that know it. . Oh, briber and bribery ! He 
 was never a good man that will so take bribes. Nor can I 
 believe that he that is a briber will be a good justice. It will 
 never be merry in England till we have the skins of such. For 
 what needeth bribing where men do their things uprightly ? ' 
 
 " This was not the language of a great philosopher, who had 
 made new discoveries in moral and political science. It was the 
 plain talk of a plain man, who sprang from the body of the 
 people, who sympathized strongly with their wants and their 
 feelings, and who boldly uttered their opinions. It was on 
 account of the fearless way in which stout-hearted old Hugh 
 exposed the misdeeds of man in ermine tippets and gold collars, 
 that the Londoners cheered him, as he walked down the Strand 
 to preach at Whitehall, struggled for a«touch of his gown, and 
 bawled, ' Have at them, father Latimer.' It is plain, from the 
 passages which we have quoted, and from fifty others that we 
 might quote, that, long before Bacon was born, the accepting 
 of presents by a judge was known to be a wicked and shameful 
 act ; that the fine words, under which it was the fashion to veil 
 such corrupt practices, were even then seen through by the 
 common people ; that the distinction on which Mr. Montagu 
 insists between compliments and bribes, was even then laughed 
 at as a mere ' colouring.' There may be some oratorical exaggera- 
 tion in what Latimer says about the Tyburn tippet and the sign 
 of the judge's skin ; but the fact that he ventured to use such 
 expressions is amply sufficient to prove, that the gift-taking 
 judges, the receivers of silver basins and ewers, were regarded as 
 such pests of the commonwealth, that a venerable divine might, 
 without any breach of Christian charity, publicly pray to God 
 for their detection and condign punishment." 
 
 The opinion thus entertained by the common peo- 
 ple of England in the sixteenth century, with respect 
 to the acceptance by judges of presents from litigants, 
 does not differ essentially from that entertained to-day 
 by the common people of this country, with respect to 
 the acceptance by judges of free passes from railway 
 companies. While the masses of the people are en- 
 dowed with ordinary reasoning faculties, and are 
 
506 BRIBERY BY RAILWAY PASSES. 
 
 generally capable of distinguishing between right and 
 wrong, they have not yet arrived, and probably never 
 will arrive, at that degree of intellectual development 
 necessary to enable them to draw a distinction between 
 .the acceptance by a judge of annual passes, which 
 may add several hundred dollars a year to his net 
 income, and his acceptance from any other litigant 
 than a railway company of a present equally valuable; 
 nor can they convince themselves that the conduct of 
 the judge, in the one case, is praiseworthy, and in the 
 other, corrupt. When they come to understand the 
 extraordinary success of railway corporations in the 
 higher courts, and read the multitude of judicial opin- 
 ions, declaring that the verdicts of juries are the result 
 of passion and prejudice, they may easily be convinced 
 that the decisions of judges are the result of free passes, 
 and exclaim " it will never be merry in Illinois till we 
 have the skins of such." 
 
 And the time may come, and let us pray it 
 will come, when the people of this state, moved by 
 the injustice done by the courts, will declare that 
 "judges must be taught, if possible, that when they 
 enter the judicial office, they are entering upon a duty 
 so high and solemn that they must shrink from the 
 influence of free passes as they would shrink from 
 crime," and, following the example of Cambyses, they 
 will enact that the chair of the offending judge shall 
 be adorned with "a goodly sign, a goodly monument, 
 the sign of the judge's skin." 
 
CHAPTER X. 
 
 REMEDIED. 
 
 A few of the evils existing in the administration of 
 justice having been thus discussed, it is now proposed 
 to suggest a few remedies, by means of which some of 
 those evils may be wholly cured and others greatly 
 mitigated. 
 
 1. ABOLISHMENT OP FREE PASS SYSTEM. 
 
 The free pass system should be abolished by law, 
 and it should be abolished thoroughly, by prohibiting 
 railway corporations from giving free passes to any 
 persons other than their own officers and employes. 
 "Were the State of Illinois the owner of the railroads 
 within its limits, it would be conceded by everyone 
 that those whom it entrusted with the management 
 of the business, would be guilty of a gross breach of 
 official duty in permitting a few favored individuals 
 to ride upon its trains free of charge. Such conduct 
 would be no more lawful than the payment to an indi- 
 vidual of a sum of money out of the state treasury, as 
 a mere donation. Nor could the legislature of the 
 state, if it owned the railways, pass a valid law that 
 would permit its agents, managing the business, to 
 make such discriminations between individuals as they 
 might see fit, carrying some free, and compelling 
 others to pay their fare. 
 
 Railway companies are, in the popular sense of the 
 term, public corporations. They exercise the right of 
 
 507 
 
508 REMEDIES. 
 
 eminent domain, and enjoy other advantages not pos- 
 sessed by individuals. They are entitled to a reason- 
 able, and to no more than a reasonable, compensation 
 for their services as common carriers, and they have 
 no more right to make unjust discriminations in favor 
 of or against any individual, than the state itself would 
 have, if it owned the railways. The carrying of a 
 portion of the community free, necessarily results 
 in the exaction, from the balance of the people, of 
 more than a reasonable compensation for the common 
 carrier's service, and the fact, that the amount of this 
 exaction is small, makes it none the less unjust. 
 
 The propriety of the use of free passes by public 
 officials has already been sufficiently discussed. It 
 may, however, be added that such practices, besides 
 being immoral in themselves, can only tend to unduly 
 excite the public mind, and create prejudice and hos- 
 tility among the people to railway corporations. The 
 doing away with the free pass system would, therefore, 
 benefit the railway companies, by removing one of 
 the causes of the public prejudice against them. The 
 best cure for an evil is the removal of its cause, when 
 this is possible, and, so long as railway companies 
 refuse to remove the causes, they are not in a position 
 to complain of this so-called popular prejudice. 
 
 In accomplishing this "reform, however, the fact 
 should not be overlooked, that the free pass system, 
 so far as it affects public officials, has, to a great extent, 
 been the result of the penuriousness of the state, in 
 the matter of fixing the salaries of its officers. Prior 
 to the adoption of the constitution of 1870, the judges 
 of the supreme court received a salary of only twelve 
 hundred dollars per annum, while those of the circuit 
 court received one of only one thousand dollars per 
 annum. Such being their compensation, it is not 
 surprising that they should have accepted these gifts, 
 
costs. ■ 509 
 
 and attempted to justify their conduct, upon the 
 ground that their traveling was done upon public busi- 
 ness. While their salaries have been increased, they 
 are not yet as large as they should be. 
 
 Nor is it surprising that members of the legislature, 
 with a compensation of only five dollars per day, 
 should use these passes, and should greet a bill, intro- 
 duced to abolish the free pass system, with shouts 
 of derisive laughter, and refer it to the committee on 
 retrenchment. Their pay is insufficient to cover their 
 expenses. The payment of small salaries is no better 
 economy for the state, than it would be for a private 
 corporation, or an individual. Such salaries should 
 be paid that the public can feel that they own their 
 officers by a title clear, absolute and unencumbered. 
 The people could better afford to double the salaries 
 of all public officers, and feel that they owned them 
 completely, than to make the salaries inadequate, and 
 know that their title was clouded by corruption, in 
 the form of free passes issued by railway companies. 
 
 The importance of having their legal business 
 transacted by competent lawyers has been well under- 
 stood by railway corporations. By the payment of 
 large salaries, they have secured the aid of the best 
 legal talent of the state, and the result has, in part, 
 already been shown in the preceding chapters. Had 
 the same kind of legal talent been procured by the 
 people and properly paid for, it is quite safe to say, 
 that the judicial legislation of this state would have 
 been very different, and, moreover, the expenses of 
 the judicial department would have been very much 
 less. 
 
 2. AMENDMENT OE LAW IN REGARD TO COSTS. 
 
 Section 22 of chapter 33 of the Revised Statutes of 
 1874, which provides for a judgment for costs against 
 the appellee, or defendant in error, in case of the 
 
510 « EEMEDIES. 
 
 reversal of a judgment, should be so amended as to 
 provide, that the costs shall abide the event of the 
 suit. Such is the law, in many of the states, and its 
 propriety cannot be seriously questioned- The party, 
 finally successful in a litigation, having thereby dem- 
 onstrated the justice of his claim, or of his defense, 
 should recover all his costs, excepting those occasioned 
 by his own, or his attorney's misconduct, and he 
 should not be compelled to pay any of the costs made 
 by the opposite party, in urging a defense, or in prose- 
 cuting a claim, which the final event of the suit shows 
 to be without merit. 
 
 . As the law now stands, the poor are at the mercy 
 of the rich, and many a poor litigant is driven out of 
 court, or deprived, in whole, or in part, of the benefit 
 of the judgment he may finally obtain, by reason of 
 his being compelled to pay the costs,, occasioned by 
 repeated reversals of judgments, which, though in 
 fact just, were yet obtained in disregard of some tech- 
 nical rules of law, which a reviewing court imagines 
 might have affected the results. 
 
 With a law upon our statute books, requiring the 
 party finally defeated to pay all the costs of the liti- 
 gation, rich litigants would be much less apt to resort 
 to appeals on frivolous grounds, while those of limited 
 means would be assured that, if their claims were 
 finally established, their judgments would not be 
 diminished by costs, paid to their opponents, for resist- 
 ing them. 
 
 The law now in force, is contrary to the spirit of 
 that clause of the constitution, which secures to every 
 person the right to obtain justice, without being obliged 
 to purchase it. A construction was placed upon this 
 provision, in Wilson v. McKenna, 52 111. 43. That was 
 an action of ejectment, brought by the appellee against 
 the appellant, in which was involved the validity 
 
COSTS. 511 
 
 of a tax deed, and it was claimed that the appellee 
 had no right to question that deed, without first show- 
 ing payment of all the taxes, due and assessed upon 
 the lot in controversy. Mr. Chief-Justice Breese, in 
 delivering the opinion of the court, says : 
 
 " It is further objected by appellant, that tbe defendant had 
 no right to question the deed without first showing that he 
 had paid all the taxes due and assessed upon the lot ; that such 
 is the requirement of the ordinances of the city, and of the 
 revenue laws of the state. 
 
 "That provision of the general revenue law has long 
 remained a dead letter upon the statute book, and is not consid- 
 ered of any validity, the effect of it being to compel a man to 
 buy justice. This no one can be compelled to do under our 
 organic law. By that it is declared, that every person in this 
 state ought to obtain right and justice freely, and without being 
 obliged to purchase it, completely and without denial, promptly 
 and without delay, conformably to the laws. Should justice be 
 denied to him who has not wherewithal to pay for it ? The 
 conditions imposed by this act deprive a poor man of justice, 
 and has no sanction in the constitution." 
 
 If it is contrary to the constitutional provision in 
 question, to compel a man to pay his taxes, justly and 
 properly assessed, before being permitted to recover 
 the real estate taxed, by what kind of reasoning can 
 it be held lawful to compel the owner of a cow, or 
 horse, which has been killed by a railroad company, 
 before obtaining the benefit of his judgment, to pay, 
 by way of costs occasioned by reversals of prior judg- 
 ments, two or three times the value of the property 
 in controversy ? Whether a law, by which such results 
 arc possible, is constitutional, or not, it is certainly 
 one which reflects no credit upon the people who tol- 
 erate it. 
 
 It may, however, be claimed that a law, compelling 
 the appellee or defendant in error to pay the costs 
 
512 EEMEDIES. 
 
 occasioned by a reversal of a judgment, is proper, for 
 the reason that such reversal is the result of errors 
 committed by the fault of the party, who has been 
 successful in the court below. At first blush, there 
 might seem to be some force in this position, but upon 
 a fair investigation, it will appear untenable. A party, 
 who has a just claim, is entitled to a proper trial and 
 hearing of his cause, and it is the duty of the state to 
 provide such tribunals, and such methods of procedure, 
 as will secure such a trial. Competent courts should 
 be established, for if the courts are competent, and 
 know the law, as they should know it, their judgments 
 will be sustained. What just reason is there, then, 
 for compelling the party, whose cause is just, to pay 
 costs and expenses occasioned by the inability of the 
 judge to properly decide the questions that arise? 
 
 It is quite true, that many of the mistakes, made 
 by the trial judge, occur by reason of unsound argu- 
 ments advanced by the counsel of the successful party, 
 but the counsel are also officers of the court, are duly 
 licensed, and, by admitting them to practice law, the 
 highest court of the state holds them out as competent 
 to properly discharge the duties of attorneys and coun- 
 selors, and litigants should not be made tp suffer 
 unnecessarily by reason of their mistakes. 
 
 Again, who will have the hardihood to contend, 
 especially in this state, that counsel are to blame for 
 not understanding the law? Take, for example, the 
 doctrine of comparative negligence. Where is the 
 lawyer in this state, who is endowed with intellectual 
 faculties sufficient to have enabled him to keep up 
 with the variations of the supreme court, in the state- 
 ment and application of the doctrine, and to unerringly 
 decide how, when, and when not, to state it? The 
 judges of the supreme court are themselves to blame 
 for more than one-half the alleged errors committed 
 
CHARGING THE JURY. 513 
 
 by the trial courts, and to say, by law, that litigants, 
 by reason of such errors, shall be compelled to pay to 
 the opposite party costs, occasioned by reversals of 
 judgments, in some cases amounts equal to the sums 
 in controversy, though their claims are shown to be 
 well founded, is unreasonable and unjust. 
 
 The following act would be a suitable remedy : 
 
 An act to amend an act entitled " An act to revise the law 
 in relation to costs," in force July 1, 1874. 
 
 § 1. Be it enacted by the People of the State of Illinois, rep- 
 resented in the General Assembly, That section twenty-two (22) 
 of an act entitled " An act to revise the law in relation to costs," 
 in force July 1, 1874, be and the same is hereby amended so 
 as to read as follows : 
 
 " § 22. If any person shall sue out a writ of error, or take 
 an appeal to the supreme or appellate court, to review the judg- 
 ment of any other court, and the same judgment be affirmed, or 
 the writ of error be discontinued or quashed, or the plaintiff in 
 error or appellant be nonsuited, the defendant in error or appellee 
 shall recover his costs, and have execution therefor; and if the 
 judgment be reversed, the court shall make an order that the 
 costs abide the event of the suit." 
 
 Such an amendment of the law would not interfere 
 with the right of the officers of the courts to collect 
 from either party the costs made by him, as they are 
 now entitled to do. 
 
 3. INSTRUCTING THE JURY. 
 
 The present system of instructing juries should be 
 abolished for the reasons already set forth in the 
 chapter devoted to that subject. This could be accom- 
 plished by a simple repeal of sections 52, 53 and 54 of 
 the act entitled "An act in regard to practice in courts 
 of record," in force July 1, 1872. The charging of the 
 jury would then be governed by the common law, 
 except that the court could not charge the jury as 
 to the facts. 
 
514 REMEDIES. 
 
 If, however, something more definite were desired, 
 the following would answer the purpose : 
 
 An act in regard to charging the jury in courts of record. 
 
 §1. Be it enacted by the People of the State of Illinois, rep- 
 resented in the General Assembly, -That the judge shall not 
 charge the jury as to the facts, but may state the evidence and 
 declare the law, and the charge may be oral or in writing. 
 
 §2. Either party may present to the judge requests to 
 charge, which requests may be oral or in writing. 
 
 § 3. All exceptions to the charge shall be specific, and shall 
 be taken before the jury retire, and the judge may require the 
 party excepting to state the grounds of the exceptions. 
 
 §4. No judgment shall be reversed for errors in the charge, 
 if the charge, when considered as a whole, states the law appli- 
 cable to the case with substantial accuracy, nor unless it appears 
 probable to the appellate or supreme court, that the jury were 
 misled thereby. 
 
 §5. All acts and parts .of acts in conflict herewith are 
 hereby repealed. 
 
 4. REVIEW OF TACTS BY APPELLATE COURTS. 
 
 The facts in a case tried by jury should not be sub- 
 ject to review by the appellate or supreme court. 
 This modification in the law would be accomplished 
 by the passage of the following act : 
 
 An act to amend section sixty-one of an act entitled "An 
 act in regard to. practice in courts of record," in force July 1. ' 
 1872. 
 
 §1. Be it enacted by the People of the State of Illinois, rep- 
 resented in the General Assembly, That section sixty-one (61) 
 of an act entitled "An act in regard to practice in courts of 
 record," in force July 1, 1872, be and the same is hereby amended 
 so as to read as follows : 
 
 " § 61. Exceptions taken to decisions of the court over- 
 ruling motions in arrest of judgment, motions to amend and for 
 continuances of causes, shall be allowed; and the party excepting 
 may assign for error any decision so excepted to." 
 
REVIEW OF FACTS BY APPELLATE COURT. 515 
 
 The propriety of this change in the law has already- 
 been discussed in the chapter on "Trial by Jury." 
 It is absolutely essential to a proper administration of 
 justice. The review of the facts by the appellate 
 courts, in many cases, defeats the very object for 
 which trial by jury was adopted, and it would be far 
 better to transfer the common law cases to the chan- 
 cery docket, and take the evidence by depositions, 
 as in equity cases,- than to perpetuate the present 
 system. A verdict of a jury, in an action at law, is of 
 much less avail, in the appellate court, to the success- 
 ful party, than the findings of the chancellor, for it is 
 very rare indeed that more than one decree in the 
 same chancery case is reversed, while it is a very 
 common thing for the appellate court to reverse two, 
 and even three, judgments in a common law action. 
 
 It may be that the change proposed will seem, to 
 many, to be too radical. If so, the right to review the 
 facts, by the appellate and supreme courts, might, at 
 first, be limited to actions at law, involving over $1,000, 
 and to criminal cases, where the punishment inflicted 
 is death, or confinement in the penitentiary. This 
 would be accomplished by. the following statute : 
 
 An act to amend section sixty-one of an act entitled " An act 
 in regard to practice in courts of record," in force July 1, 1872. 
 
 § 1. Be it enacted by the People of the State of Illinois repre- 
 sented in the General Assembly, That section sixty-one (61) of an 
 act entitled "An act in regard to practice in courts of record," 
 in force July 1, 1872, be and the same is hereby amended so as 
 to read as follows : 
 
 " § 61. Exceptions taken to decisions of the court overruling 
 motions in arrest of judgment ; motions for new trials in actions 
 at law where the sum or value in the controversy, exclusive of 
 costs, shall exceed one thousand dollars ($1,000), and in criminal 
 cases above the grade of misdemeanors ; motions to amend, and 
 for continuances of causes, shall be allowed ; and the party ex- 
 cepting may assign for error any decision so excepted to." 
 
516 REMEDIES. 
 
 If such a statute as this were tried for two years, 
 and found unsatisfactory, it could be repealed, and no 
 great harm would be done. 
 
 5. ACTIONS FQR CAUSING DEATH. 
 
 The statute requiring compensation for causing 
 death by wrongful act, neglect, or default, should also 
 be amended, by striking out the clause limiting the 
 damages to five thousand dollars, and adding a pro- 
 vision authorizing exemplary damages, where the facts 
 warrant their imposition, and also by the addition of 
 a few sections, abridging the powers of the appellate 
 and supreme courts. The following act is suggested 
 as sufficient to protect poor litigants, who bring such 
 actions against railroad companies : 
 
 An act to amend an act entitled, "An act requiring com- 
 pensation for causing death by wrongful act, neglect or default," 
 in force Feb. 12, 1853. 
 
 § 1. Be it enacted by the People of the State of Illinois rep- 
 resented in the General Assembly, That section two (2) of an act 
 entitled "An act requiring compensation for causing death by 
 wrongful act, neglect or default," in force Feb. 12, 1853, be and 
 the same is hereby amended so as to read as follows : 
 
 " § 2. Every such action shall be brought by and in the 
 names of the personal representatives of such deceased person, 
 and the amount recovered in every such action shall be for the 
 exclusive benefit of the widow and next of kin of such deceased 
 person, and shall be distributed to such widow and next of kin, 
 in the proportion provided by law in relation to the distribution 
 of personal property left by persons dying intestate ; and in every 
 such action the jury may give such damages as they shall deem a 
 fair and just compensation, with reference to the pecuniary in- 
 juries resulting from such death to the wife and next of kin of 
 such deceased person, and also such exemplary damages as, 
 under all the circumstances of the case, may seem to the jury to 
 be just." 
 
 § 2. The following sections are hereby added to said act : 
 
DAMAGES FOE CAUSING DEATH. 517 
 
 "§3. No judgment rendered in any such action shall be 
 reversed upon appeal or writ of error, on the ground that the 
 damages awarded by the jury are excessive, and the allowance of 
 exceptions to the admission or rejection of evidence, or to the 
 giving or refusing of instructions, so far as such evidence or 
 instructions affect the amount of damages to be awarded by the 
 jury, shall be wholly in the discretion of the judge who presides 
 at the trial. 
 
 " § 4. If, in any such action, the failure of the person, 
 whose death has been caused, to exercise due and proper care, 
 shall be relied upon as a defense, the burden of proving such 
 failure to use due and proper care shall be upon the defendant. 
 
 "§ 5. If, in any such action, it shall appear that the injury 
 resulting in the death occurred upon a public street or highway, 
 and was caused by a train, locomotive engine or car, owned, 
 operated or controlled by the defendant, contributory negligence 
 on the part of the person whose death has been caused, shall be 
 no defense to the action. 
 
 "§6. All acts or parts of acts in conflict herewith are 
 hereby repealed, but such repeal shall in no wise affect suits 
 pending or rights existing at"the time this act takes effect.' 
 
 The reasons, in favor of the proposed amendment 
 to the second section of the act, have already been suffi- 
 ciently set forth, in the chapter entitled " Excessive 
 Damages " (ante, p. 205). It will not be out of place, 
 however, in this connection, to notice an argument 
 that has been advanced against such an amendment, 
 and, indeed, against the propriety of any law, allowing 
 a recovery for causing death by wrongful act, neglect, 
 or default. 
 
 The representatives of railway companies — such 
 corporations being the ones most affected by this act 
 — professing to have a great interest in public morality, 
 contend that it is immoral, and contrary, to a sound 
 public policy, to permit human life to be made, as it 
 were, an article of merchandise, and that, for this 
 reason, no actions of this character should be allowed, 
 
518 REMEDIES. 
 
 or, at least, that the amount to be recovered should be 
 limited, and that, in no event, should any exemplary 
 damages be allowed. The solicitude, which these peo- 
 ple manifest for the public morals, is, indeed, touching, 
 but, coming from such a source, it is not appreciated. 
 The argument advanced, if carried to its logical result, 
 would almost revolutionize the practice of law. A few 
 cases may be mentioned, that would be seriously 
 affected by the rule contended for. 
 
 Thus, the law permits an action to be maintained 
 by the father, for the seduction of the daughter. The 
 nature of such an action is described in Doyle v. Jes- 
 sup, 29 111. 462, in which Mr. Justice Caton, in deliver- 
 ing the opinion of the court, says : 
 
 "This was an action on the case by the father for the seduc- 
 tion of his daughter. Technically, the ground of recovery is 
 the loss of the services of the daughter, and the rule of the 
 books seems to be, that the father must prove some service, in 
 order to entitle him to maintain the action. This is nominally 
 the ground on which the plaintiff's right of action rests, while, 
 practically, the right to recover rests on far higher grounds — 
 that is, the relation of parent and child, or guardian and ward, 
 or husband and wife, as well as that of master and servant ; and 
 it seems almost beneath the dignity of the law to resort to a sort 
 of subterfuge, to give the father a right of action which is 
 widely different from that for which .he is really allowed to 
 recover damages. * * * 
 
 "We have no inclination to disturb this verdict because it is 
 excessive. On the contrary we do not think it too high. Even 
 a much larger verdict would fall far short of repairing the dam- 
 ages which the defendant has done to the plaintiff. Indeed, no 
 pecuniary compensation could repair it. What judge, what 
 juror, what man, worthy of the name of man, would be willing 
 to have a daughter debauched for eight hundred dollars, or for 
 any other sum of money ? If this defendant now thinks the 
 amount of this verdict is more than sufficient to repair the 
 wrong which he has done to the plaintiff's domestic circle, he 
 
DAMAGES FOR CAUSING DEATH. 519 
 
 will change his mind, should he ever have a daughter who shall 
 arrive at the age of puberty, and will despise himself for ever 
 having thought otherwise." 
 
 But, according to the views of railroad lawyers, 
 such an action should not be allowed, because it makes 
 a daughter's virtue an article of merchandise. 
 
 So, in the case of Smalley v. Smalley, 81 111. 71, 
 which was an action on the case, for the malicious 
 burning of a house, it was insisted that the damages 
 awarded were excessive. But Mr. Justice Scholfield, 
 in delivering the opinion of the court, says : 
 
 " If the defendant was guilty, the act was malicious, and 
 the jury were not limited to merely compensatory domages, but 
 were authorized, in addition thereto, to assess against him 
 exemplary damages." 
 
 But such an action, according to the same reason- 
 ing, ought not to have been allowed, because it made 
 the crime of arson an article of merchandise, at least, 
 to the extent of the exemplary damages. The same 
 objection might be made to any action in which 
 exemplary damages are allowed. 
 
 There is nothing meritorious in the objection to 
 the allowance of exemplary damages, in the actions 
 in question. On the other hand, in favor of their 
 allowance, it is to be said that public policy, as well as 
 common sense, demands that it should be made more 
 expensive to a railroad company, or any other defend- 
 ant, to kill a man than to cripple him, and the allow- 
 ance of exemplary damages would tend to increase the 
 care exercised by those operating dangerous machinery. 
 
 The reasons which should induce the legislature 
 to add the proposed section three to the act, are appar- 
 ent to any one familiar with the rulings of the supreme 
 court, upon the questions covered by that section. The 
 amount of damages to be awarded should be wholly 
 
520 REMEDIES. 
 
 in the discretion of the jury and the trial judge, for 
 they are the only persons who have the facilities for 
 properly determining that question. 
 
 The purpose of prohibiting exceptions to the admis- 
 sion or rejection of evidence, and to the giving and 
 refusing of instructions, affecting the amount of the 
 damages, is to prevent the repetition of such rulings 
 of the supreme court as have already been commented 
 on. In the Moranda Case {ante, p. 238), proof was 
 properly introduced showing Moranda's condition in 
 life, the number and ages of his children, and that he 
 supported them, and yet, the judgment was reversed, 
 on the sole ground that his widow was permitted to 
 testify that she and her children had no means of 
 support, save that arising from his daily earnings — a 
 fact, which would have been evident to the jury with- 
 out her statement, and which, moreover, was proper 
 evidence under several prior decisions of the court. 
 
 In the Austin Case {Ante, p. 229), one instruction 
 "by all the rules of philology " but told the jury "they 
 must render a verdict for five thousand dollars." The 
 verdict rendered was for four thousand two hundred 
 and fifty dollars. Another instruction told them that, 
 in fixing the damages, they might take into account 
 the instruction and moral training of the children of 
 deceased, when there was no evidence, as ruled by the 
 court, that the deceased was capable of giving them 
 moral training. For these supposed errors, and for 
 another equally important, the judgment was reversed. 
 
 In the Baches Case {Ante, p. 358), the court refused 
 to give, among others, the twenty-seventh instruction 
 offered by defendant, by which it was proposed to tell 
 the jury not to take into account, in estimating the 
 damages, the fact that the wife of the deceased had a 
 deformity in her left hand, and for this and other 
 errors the judgment was reversed. 
 
DAMAGES FOR CAUSING DEATH. 521 
 
 In the Morrissey Case (Ante, p. 476), the jury awarded 
 damages to the amount of $4,000 for the negligent 
 killing of a man, who was twenty-seven years of age 
 and able to earn sixty dollars per month, and who left 
 surviving a widow and four children. The judgment 
 was at first affirmed by the supreme court, who unani- 
 mously declared that the objections to an instruction 
 were hypercritical and perversions of its plain lan- 
 guage, but, a rehearing being allowed, the judgment 
 was reversed, because the instruction, by the omission 
 of the words "from the evidence," permitted the jury 
 to ascertain the damages from other sources than the 
 proofs in the case, and thus violated Rule First. 
 
 In view of such decisions as these, who can say 
 some modification of the law is not necessary to 
 prevent similar occurrences in the future? 
 
 There is another reason for leaving the question of 
 the amount of damages to be awarded, in cases of this 
 character, solely to the trial judge and the jury. The 
 damages to be awarded for the killing of a human 
 being, do not rest in computation, and are incapable 
 of exact measurement. They must necessarily be 
 left to the sound judgment of the jury and the judge 
 who try the cause, and who alone are in a situation to 
 appreciate its merits. The importance of the rulings 
 of the trial court, in the giving and refusing of in- 
 structions in such a case, is greatly over-estimated. 
 Trivial errors, which are often held to affect the 
 amount of the verdict, in reality do not affect it at all. 
 Besides, the statute in question has been in force for 
 over thirty years, and has been so repeatedly construed 
 by the supreme court, that all questions arising under 
 it should be regarded as so well settled, as to require 
 no further discussion in the appellate courts. Should 
 new questions arise, it must be supposed that the trial 
 judge will always be honest enough to allow an 
 
522 REMEDIES. 
 
 exception that is necessary to enable the appellate 
 courts to pass upon any question of law, that he deems 
 of sufficient importance to affect the verdict. Finally, 
 it must be said that, though under such a statute some 
 injustice might occasionally be done to a defendant, it 
 would be trifling, as compared with that which has 
 been done by the supreme court to plaintiffs. 
 
 The proposed fourth section is intended to modify 
 the rule now in force, by which the legal represen- 
 tatives of a dead man, after proving his death was the 
 result of the negligence of the defendant, are com- 
 pelled to also prove that he himself exercised proper 
 care. The reasons in favor of this modification of the 
 law, are set forth in the chapter entitled " The Burden 
 of Proof." 
 
 The proposed fifth section is intended to furnish 
 an inducement to railroad companies to properly 
 guard street and highway crossings, and to make them 
 liable for all injuries inflicted at such places, which 
 could have been avoided by the use of proper care. As 
 before shown, out of a total of seventeen judgments, 
 rendered by the circuit courts against the four leading 
 railroad companies, in actions brought to recover for 
 injuries inflicted at such places, which actions came 
 before the supreme court for review during the past 
 eleven years, but one has been sustained, and that only 
 by a divided court, after two prior reversals. The in- 
 evitable result of these cases has been to make the 
 railroad companies manifest an utter disregard of the 
 rights of others at such places. Trains are run through 
 cities and villages at full, or nearly full, speed, and 
 no attempt is made by flagmen, gates, or otherwise, to 
 protect the public. Public policy demands that rail- 
 road companies, at such places, exercise the highest 
 degree of care, and that they do not unnecessarily in- 
 jure persons, even though such persons do not exercise 
 
DAMAGES FOE CAUSING DEATH. 523 
 
 proper care. In the Middlesworth Case, 46 111. 499, as 
 we have before seen, Mr. Justice Breese, in delivering 
 the opinion of the court, says : 
 
 " The idea is not tolerable, that an injury may be inflicted 
 which, by ordinary care and diligence, could have been avoided. 
 There would be no safety in daily intercourse, if such was the 
 law. By its force, a man may ride his horse over another, who 
 is carelessly exposed in a street, on which they have a common 
 right. By its force, all those precautious and safeguards, sanc- 
 tioned by experience, are dispensed with, and a time-honored 
 and sensible and just maxim of the law scouted. The true 
 doctrine is, that in all the business and avocations of life, those 
 pursuing a particular business should so exercise their rights as 
 to do no unnecessary injury to another, in the pursuit of his 
 business, or in the exercise of his rights. All should use ordi- 
 nary care and diligence to prevent injury." 
 
 This was said with reference to the right of the 
 plaintiff to recover for the killing of his mules, and it 
 was further declared : 
 
 " No matter how the animals got upon the track, if injury 
 to them could have been avoided by the exercise of ordinary 
 care and diligence, that degree of care and diligence should have 
 been observed." 
 
 If this is the law as to mules, why should it not 
 also be the law as to men, women and children, upon 
 the unguarded railroad crossings of a city or village ? 
 
 The doctrine of contributory negligence, so far as 
 it is applied to those operating dangerous machinery, 
 who may inflict, but can not receive injury by means 
 of a collision, is not founded upon sound reason. It is 
 supposed to be based upon grounds of public policy, 
 while in reality it is contrary to public policy. Shear- 
 man & Redfield, in their work on Negligence, state it 
 as follows : 
 
 " § 42. The rule, which denies relief to a plaintiff guilty of 
 contributory negligence, is based less upon considerations of 
 
524 REMEDIES. 
 
 what is just to the defendant, than upon grounds of public 
 policy, which require, in the interests of the whole community, 
 that every one should take such care of himself as can reason- 
 ably be expected of him. It is a part of the same policy which 
 regards suicide as a crime, which punishes vagrancy and idle- 
 ness, and which has led some states to deal with confirmed 
 spendthrifts as a species of lunatics. ' Waste or recklessness, 
 even in respect to one's own property, is an injury to the state, 
 and, indeed, to the whole world. And, though political economy 
 has demonstrated the uselessness of attempting, by means of 
 direct penal legislation, to reform such evils, it does not 
 condemn those rules of law which, by making carelessness the 
 means of its own punishment, teach caution, without attempting 
 an impracticable severity. It is certainly open to grave doubt 
 whether the admiralty rule, which divides the loss between the 
 parties in fault, is not a better rule than that of the common 
 law; but a' jury cannot be trusted to apportion damages on that 
 principle, which is unquestionably the chief reason why it has 
 not been adopted in all the courts. In California, it is held 
 that the reason of the rule is simply the impossibility of appor- 
 tioning the damages between the parties, and that where this 
 impossibility does not exist, the rule itself ceases." 
 
 It is, no doubt, in the interests of the whole com- 
 munity, that each individual should take reasonable 
 care of himself, and any rule of law which would tend 
 to accomplish that result would be commendable. 
 But does the rule of contributory negligence, when 
 applied in actions for injuries resulting in death, have 
 such an effect ? Is not the instinct of self-preserva- 
 tion, in and of itself, a sufficient incentive to the 
 exercise of due care, and is there any man, woman or 
 child, who would exercise greater care to avoid being 
 run over by a railroad train, in view of the rule of law 
 in question, then he would exercise, were no such rule 
 applied? It is absurd to suppose that any man of 
 sound mind would be induced to exercise greater care 
 from any such consideration. 
 
DAMAGES FOE CAUSING DEATH. 525 
 
 On the other hand, it is of vast importance to the 
 public, that railroad companies, which operate their 
 dangerous machines over public highways and 
 thoroughfares, should use the greatest possible care 
 to avoid killing or injuring others. The instinct of 
 self-preservation does not operate either upon the 
 corporation, or upon its 'servants, as an inducement to 
 due care, for a collision of an engine with an in- 
 dividual upon a public highway rarely results in injury 
 or loss of life to those in charge of such engine. The 
 injury, if there is one, is usually to the individual on 
 the highway. The chief incentives, therefore, to the 
 corporation and its servants, to the exercise of due 
 care, are the dictates of common humanity and the 
 fear of punishment for negligence, and it follows, as 
 a natural consequence, that the greater and more 
 certain the punishment, the greater will be the care 
 exercised. 
 
 If this view be correct, and if the object of legisla- 
 tion of this character is not to create litigation, but to 
 protect the public against the negligence of railroad 
 companies and others, who operate dangerous machines 
 upon public streets and highways, there can be no just 
 objection to the law proposed. Railroad companies 
 can, if they will, absolutely avoid injuries to individ- 
 uals on highways. This may be done, as it is in all 
 European countries, by the construction and main- 
 tainance of gates at railroad crossings. But as long as 
 the rules of law, as enforced by the appellate and 
 supreme courts in this state, are such as to defeat^ 
 nearly every action brought against these companies 
 for injuries inflicted at such places, it is quite useless 
 for the public to expect protection, either from the 
 railroad companies themselves, or from the courts. 
 
 If it be claimed, that to require all railroad cross- 
 ings to be guarded would impose too great an expense 
 
526 REMEDIES. 
 
 upon railroad companies, it will be a sufficient answer 
 to say, that no corporation, operating dangerous 
 machinery upon public thoroughfares, has the right, 
 for the mere purpose of increasing the profits of its 
 business, to omit any precaution that is necessary to 
 avoid injury to others, who have an equal right with 
 itself to be upon such thoroughfares. So, likewise, 
 those travelling upon railway trains have no right to 
 demand a low rate of fare, at the expense of the lives 
 and limbs of others, and if the rates of transportation 
 are too low to enable the railway corporation to 
 properly guard crossings, those rates should be in- 
 creased. 
 
 6. CONTRIBUTORY NEGLIGENCE. 
 
 The burden of proving contributory negligence 
 should be upon the defendant in all cases, and no 
 infant under ten years of age should be chargeable 
 with contributory negligence, either on its own part, 
 or on the part of its parent or guardian. This could 
 be accomplished by a statute substantially as follows: 
 
 An act in regard to contributory negligence. 
 
 § 1. Be it enacted by the People of the State of Illinois rep- 
 resented in the General Assembly. That when, in any action 
 brought to recover damages for negligence, contributory negli- 
 gence, on the part of the plaintiff or person injured, is relied 
 upon as a defence, the burden of proving such contributory 
 negligence shall be upon the defendant. 
 
 § 2. Contributory negligence on the part of an infant 
 
 under the age of ten years, or on the part of the parent, guardian, 
 
 or other person having the care or custody of such infant, shall 
 
 • be no defense to any action brought to recover damages for 
 
 negligence resulting in injury to such infant. 
 
 The reasons in favor of the enactment of the first 
 section of this proposed act are sufficiently set forth 
 in the chapter entitled " The Burden of Proof." (Ante 
 p. 150.) Its effect would simply be to do away with 
 
CONTRIBUTORY NEGLIGENCE. 527 
 
 an innovation, and restore the common law rule 
 in force in Chitty's time, which presumed that every 
 person exercised proper care, until the contrary was 
 proven. This is the rule adopted hy the Supreme 
 Court of the United States, as appears from the case 
 of Railroad Company v. Cladmon, 15 Wall. 406, in 
 which Mr. Justice Hunt, in delivering the opinion of 
 the court, says : 
 
 " While it is true that the absence of reasonable care and 
 caution, on the part of one seeking to recover for an injury so 
 received, will prevent a recovery, it is not correct to say that it 
 is incumbent upon him to prove such care and caution. The 
 want of such care or contributory negligence, as it is termed, is 
 a defence to be proved by the other side. 
 
 " The plaintiff may establish the negligence of the defendant, 
 his own injury in consequence thereof, and his case is made out. 
 If there are circumstances which convict him of concurring 
 negligence, the defendant must prove them,- and thus defeat the 
 action. Irrespective of statute law on the subject, the burden 
 of proof on that point does not rest upon the plaintiff." 
 
 With respect to the second section of the proposed 
 act, some suggestions have already heen made in the 
 chapter entitled "Trial by Jury" {Ante, pp. 258-278). 
 It was there shown that in the Murray Case, 62 111. 
 326, the court held the doctrine of contributory 
 negligence applicable to an infant only seven and one- 
 half years of age, and reversed the judgment, because 
 two of the plaintiff's instructions did not submit to 
 the jury the question of comparative negligence, 
 though that question was properly submitted in other 
 instructions. And in the Delaney Case, 82 111. 198, 
 the judgment was reversed, because the court below 
 instructed the jury to find for the plaintiff, if the neg- 
 ligence of the defendant contributed to bring about 
 the injury, more than any negligence of the deceased, 
 a lad nine years of age. 
 
528 REMEDIES. 
 
 The statute proposed would prevent the repetition 
 of such decisions as the above mentioned, and place 
 an infant upon at least an equal footing with a mule, 
 — a " consummation devoutly to be wished." That any 
 defendant, whether corporation or individual, should 
 be permitted to excuse himself for a negligent killing 
 or injuring of an infant, who is conclusively presumed 
 by law to be incapable of distinguishing between good 
 and evil, is contrary to the sense of justice of every 
 right-minded man, and a rule of law that allows such 
 a defense should no longer be tolerated by the people 
 of this state. 
 
 7. MASTER AND SERVANT. 
 
 The rules of law regulating the liability of masters 
 to servants should be modified by a statute, substan- 
 tially as follows : 
 
 An act in regard to the Liability of Masters to Servants for 
 Negligence. 
 
 § 1. Be it enacted by the People of the State of Illinois repre- 
 sented in the General Assembly, That hereafter every corporation 
 operating a railway shall be liable for all damages sustained by 
 any servant of such corporation, in consequence of the negli- 
 gence of any other servant or servants of such corporation. 
 
 §2. It shall be the duty of every master or employer to 
 use reasonable care and diligence to avoid exposing any servant 
 or employee to unnecessary risk, and in any action brought 
 against the master or employer to recover damages resulting 
 from a breach of such duty, it shall be no defense that the ser- 
 vant or employee had notice of such risk, 
 
 § 3. No contract which restricts the liability provided for 
 by this act shall be legal or binding. 
 
 In Shearman & Eedfield on Negligence, section 86, 
 it is said : 
 
 " A master is not liable to his servant for the negligence of 
 a fellow-servant, while engaged in the same common employ- 
 ment, unless he has been negligent in his selection of the servant 
 
MASTER AND SERVANT. 529 
 
 in fault, or in retaining him after notice of his incompetency. 
 The master does not warrant the competency of any of his ser- 
 vants to the others. Whether rightly or wrongly decided, as a 
 matter of principle, it is at least certain that this rule is the 
 settled law of Great Britain, Ireland and America. Very grave 
 objections have been made to the doctrine, but their weight 
 must be left for legislatures to determine. It is too late for the 
 courts to reconsider their decisions on the point." 
 
 There are few questions in this state that more 
 urgently demand legislative action, than that concern- 
 ing the doctrine of fellow-servants. Especially is this 
 true since the decision of the Moranda Case, 93 111. 
 302, and the subsequent rulings in the same case, 108 
 111. 576. As heretofore shown {ante, pp. 48-68), the first 
 opinion in the case, which was an exhaustive review 
 of, and attempt to harmonize, all the previous decisions 
 of the court, declared the rule to be, that in order to 
 constitute servants of the same master "fellow-ser- 
 vants," within the rule respondeat superior, it is essen- 
 tial that the servants shall be, at the time of the injury, 
 directly co-operating with each other in the particular 
 business in hand, or that their usual duties shall bring 
 them into habitual consociation, so that they may ex- 
 ercise an influence over each other promotive of proper 
 caution. In the second opinion, it was declared that 
 the sole province of the court is to define the rule, and 
 that whether the particular case falls within the rule, 
 is a question of fact for the jury, upon which they 
 should be left free to form and declare, from the evi- 
 dence before them, their opinion, and accordingly the 
 judgment was reversed, because the trial judge told 
 the jury, that a section foreman, having charge and 
 oversight of repairs upon a certain portion of the rail- 
 road company's track, and an engineer and fireman, 
 running such company's locomotive engines, were not 
 fellow-servants. From this ruling of the court, it is 
 
 34 
 
530 REMEDIES. 
 
 to be inferred that the instruction should have been 
 substantially as follows : 
 
 " The jury are instructed that, if a man, employed 
 by a railroad company, in the capacity of a section 
 foreman, having charge and oversight of repairs upon 
 a certain portion of its track, and an engineer and 
 fireman, runniug such company's engines, are either 
 directly co-operating with each other in the particular 
 business in hand, or their usual duties bring them into 
 habitual consociation, so that they may exercise an 
 influence upon each other promotive of proper caution, 
 they fall within the rule, which exempts the common 
 employer from liability to one of its employees for 
 damages resulting from the fault, carelessness or neg- 
 ligence of a fellow-servant, or co-employee ; but other- 
 wise not." 
 
 It needs no argument to show that such a method 
 of instructing is, to say the least, very unsatisfactory, 
 and is justly obnoxious to the objection that it -operates 
 to "send the jury out into the broad field of conjec- 
 ture," and the rule should be abolished for the reason, 
 if for no other, that it is too indefinite to enable the 
 parties to know their rights, or the courts to adjudi- 
 cate upon them. But unsatisfactory and indefinite as 
 is the rule thus laid down, it becomes still more so, in 
 view of the ruling of the court in C. & A. R. R. Co. v. 
 May, 108 111. 288. That was an action brought to 
 recover damages for the negligent killing of the plain- 
 tiff's intestate, who was one of a number of hands in 
 the employment of the railroad company, under the 
 immediate control and charge of one Frederick Fricke, 
 by whose negligence the death was caused. Mr. Jus- 
 tice Mulkey, in delivering the opinion of the court, 
 among other things, says : 
 
 " The instruction claimed to be most objectionable, and the 
 
MASTER AND SERVANT. 531 
 
 only one specially noticed in appellant's brief in this court, is as 
 follows: 
 
 '"'2. That one servant of a corporation to whom the 
 corporation delegates the power of hiring and of discharging 
 other servants, and in whom the corporation vests the sole 
 control and direction of such other servants in and about the 
 work which they may be ordinarily required to do, is, as to such 
 servants whom he so hires, discharges and controls, the repre- 
 sentative of the master, and is not a fellow-servant, and is not, 
 under such state of facts, if proven by the evidence, in the same 
 line of employment as the servants whom he so controls. 1 
 
 " The consideration of this instruction will necessarily lead 
 us to enquire when the master will, and when he will not, be 
 held liable for the negligence of one servant resulting in injury 
 to another, and also to determine, as near as may be, the con- 
 trolling principle governing cases of this character. 
 
 " Counsel for appellant, after referring to that part of the 
 opinion in the Moranda Case, 93 111. 302, wherein is discussed 
 the reasons which led to the adoption of the rule which exempts 
 the common master from liability on account of an injury 
 caused by the negligence of a fellow-servant in the same line of 
 employment, proceed to say of this instruction: 
 
 " ' It would hardly seem necessary to argue that this instruc- 
 tion places the question, of who are fellow-servants, on an 
 entirely different basis, — that is, although, as in this case, they 
 were in the strictest sense consociates, yet, if one had the right 
 to employ and discharge the other, and direct the work, they 
 are not fellow-servants. This may all be trne, and yet, public 
 policy requires' one to watch the other, and notify the superior 
 of incapacity or carelessness in a dangerous employment, as 
 much as if they were all employed and directed by a common 
 superior/ It is to be remarked, in the first place, the office or 
 object of the instruction was not to state to the jury the reasons 
 upon which the rule in question is founded, but rather to state 
 a hypothetical case in which the rule itself would not be applied, 
 and if this fact is kept in view, we see no ground for misappre- 
 hension, nor do we see any real, or even apparent, conflict 
 between it and what is said in the Moranda Case. The instruc- 
 tion does not, either in terms or by implication, tell the jury that 
 
532 REMEDIES. 
 
 a servant who has power to hire and discharge other servants, 
 with whom he is in the habit of working or rendering service 
 to a common master, can not, by reason thereof, be a fellow- 
 servant within the meaning of the rule which exempts the 
 master from liability. But admitting the instruction, when 
 considered alone, is ambiguous in this respect, the jury could 
 not possibly have been misled by it, for the court distinctly 
 laid down the very reverse of this proposition in the following 
 instructions given for the defendant : 
 
 " ' 3. The court instructs the jury, for the defendant, that 
 the common employer is not liable for any injury that may 
 accrue to one of a set of fellow-servants of that common em- 
 ployer, engaged in the same line of employment, by reason of 
 the negligence of a fellow-servant in the same line of employ- 
 ment, and the fact that the fellow-servants are employed by 
 different agents of the common employer, or that one has 
 general supervision of the work of the whole, and a right to 
 direct its execution, does not prevent them from being fellow- 
 servants of the common employer in the same line of employ- 
 ment.' 
 
 " ' 7. The court instructs the jury, for the defendant, that 
 the mere fact, that of a gang of workmen one is the foreman, 
 does not prevent their all being servants in the same line of 
 employment, or render the employer liable for an injury result- 
 ing from the negligence of such superintendent or superior.' 
 
 " The instruction complained of, when fairly construed, in 
 effect tells the jury that a servant having the exclusive control 
 over other servants under a common master, including the 
 power of hiring and discharging, is, in the exercise of these 
 powers, the representative of the master, and not a mere fellow- 
 servant, and this, we understand, is the true rule on the subject. 
 It is true the instruction does not state this in so many words, 
 but when construed in the light of the facts and the two in- 
 structions above mentioned given for the defendant, what we 
 have stated is the fair import of it.' More or less is to be 
 inferred in all writings, and instructions are no exceptions to the 
 rule. Any attempt to say, in express terms, every possible 
 conclusion or inference intended to be drawn from a writing, 
 could not in the nature of things be done, for the attempted 
 
MASTER AND SERVANT. 533 
 
 explanations would also have to be explained, and so on in- 
 definitely. Moreover, such a course, instead of leading to 
 perspicuity and certainty, would most generally result in con- 
 fusion and doubt. Now, if, after the word 'master,' in the 
 fourth line from the bottom of the instruction, the words, 
 ' when exercising such power or control,' were inserted, it would 
 relieve the instruction from all ambiguity whatever, and it 
 would be entirely unobjectionable, even if standing alone. But 
 we think the omitted words are fairly implied, and hence there 
 is no substantial objection to the instruction. 
 
 " The true rule on the subject, as we understand it, is this : 
 The mere fact that one of a number of servants who are in the 
 habit of working together in the same line of employment, for a 
 common master, has power to control and direct the actions of the 
 others with respect to such employment, will not of itself render 
 the master liable for the negligence of the governing servant, 
 resulting in an injury to one of the others, without regard to 
 other circumstances. On the other hand, the mere fact that the 
 servant exercising such authority, sometimes, or generally, labors 
 with the others as a common hand, will not of itself exonerate 
 the master from liability for the former's negligence in the ex- 
 ercise of his authority over the others. Every case, in this 
 respect, must depend upon its own circumstances. If the negli- 
 gence complained of consists of some act done or omitted by 
 one having such authority, which relates to his duties as a co- 
 laborer with those under his control, and which might just 
 as readily have happened with any of them having no such 
 authority, the common master will not be liable. For instance, 
 if the section boss of a railway company, while working with 
 his squad of men on the company's road, should negligently 
 strike or otherwise injure one of them, causing his death, the 
 company would not be liable ; but when the negligent act com- 
 plained of arises out of and is the direct result of the exercise of 
 the authority conferred upon him by the master over his 
 co-laborers, the master will be liable. In such case he is not the 
 fellow-servant of those under his charge, with respect to the 
 exercise of such power, for no one but himself, in the case sup- 
 posed, is clothed with authority to command the others. 
 
534 REMEDIES. 
 
 " When a railway company confers authority upon one of its 
 employees to take charge and control of a gang of men in car- 
 rying on some particular branch of its business, such employee, 
 in governing and directing the movements of the men under his 
 charge with respect to that branch of its business, is the direct 
 representative of the company itself, and all commands given 
 by him within the scope of his authority are, in law, the com- 
 mands of the company, and the fact that he may have an immedi- 
 ate superior standing between him and the company makes no 
 difference in this respect. In exercising this power he does 
 not stand upon the same plane with those under his control. 
 His position is one of superiority. When he gives an order 
 within the scope of his authority, if not manifestly unreason- 
 able, those under his charge are bound to obey, at the peril of 
 losing their situations, and such commands are, in contemplation 
 of law, the commands of the company, and hence it is held 
 responsible for the consequences. These views are in strict 
 accord with all that is said in the Moranda Case, to which such 
 frequent references have been made. It is believed, moreover, 
 that the test here suggested, and recognized in many of the 
 cases, will reconcile many of the apparently conflicting decisions 
 of the courts of this country which have declined to follow the 
 English rule on this subject, and the principle, though not 
 formally announced heretofore, is the logical result of our own 
 adjudications." 
 
 From this opinion, Mr. Chief-Jnstice Sheldon, Mr. 
 Justice Scott and Mr. Justice Craig dissent, and after 
 stating that Fricke, the servant whose negligence 
 caused the injury, was charged with the duty of hiring 
 and discharging servants, and of controlling and direct- 
 ing them in their work, they say : 
 
 " The only matters in which Fricke was charged with the 
 performance of the company's duties to its servants, and wherein 
 he was the representative of the company, were the two we have 
 mentioned above. The negligence of Fricke, which is here com- 
 plained of, occurred in the performance of the lowest detail of 
 common laborer's work, — pushing a car-load of lumber into the 
 car-shops. It was not a duty which the company owed to its 
 
MASTER AND SERVANT. 535 
 
 servants to give any directions about the doing of that piece of 
 work. In the doing of it, Fricke was working together with 
 the others, as a hand with them, as he did in all the work of 
 the yard. He was strictly, we think, but a fellow-laborer with 
 them, and did not act as the representative of the corporation in 
 the doing of that work, or giving directions in the doing of it. 
 Suppose that instead of the other two men he had himself 
 been holding up the lumber on the rubble car, and he had let it 
 drop, could it be said that that was not the negligence of a fel- 
 low-servant ? — that it was not one of the ordinary risks of the 
 work which the other workmen had assumed ? We think not, 
 but that it was strictly such. We do not see that Fricke's 
 directing the two men to let go the lumber could found any 
 more of a liability than his doing of the act himself. 
 
 " There would have been more of plausibility in this claim 
 of liability if the deceased had been injured in the doing of an 
 act which Fricke had ordered him to do. But not even such 
 was the case. May, the deceased, was not engaged at the rubble 
 car, on which was the lumber at all ; he was at the other car — 
 the stock car. The two men* Grrenz and and Schmekel, were 
 alone holding up the lumber on the rubble car, and it was they 
 alone whom Fricke directed to let go of the lumber, and on their 
 doing so it fell down, and forced the rubble car forward till it 
 struck and injured the deceased, who was standing in front of. 
 the bumper of the stock car. 
 
 " We think this instruction was erroneous, and that because 
 of it, the judgment should be reversed." 
 
 The opinion in the Moranda Case required two years 
 and four months for its preparation. It was delivered 
 in February, 1880, was concurred in by six members of 
 the court, and was supposed to exhaust the question 
 of fellow-servants, and to lay down the law in terms 
 so clear and unmistakable^ that no circuit judge could 
 possibly experience difficulty in the proper application 
 of the doctrine. Yet in the May Case, decided a 
 little more than four years afterwards, we find the 
 court divided, four judges upon one side and three 
 
536 REMEDIES. 
 
 upon the other, upon the question, what that opinion 
 in the Moranda Case meant, and, moreover, we find the 
 majority as well as the minority indulging in hair- 
 splitting distinctions, which only tend to throw ad- 
 ditional confusion upon the whole subject. 
 
 Thus, the majority of the court attempt to dis- 
 tinguish between an act of negligence committed by 
 the servant 'Fricke, growing out of his duty of hiring 
 and discharging, or directing and controlling the other 
 servants, and one growing out of his duty as a co- 
 laborer with them, and they declare, that if he should 
 himself negligently strike one of the servants, whom 
 he had power to hire and discharge, or direct and 
 control, the railroad company would not be liable, but 
 if he should negligently give an improper order to one 
 servant, by reason of which another servant should be 
 injured, the railroad company would be liable. 
 
 The minority of the court hold that, if Fricke, in 
 the exercise of his power oT control and direction of 
 the servants, had directed the deceased to do an act 
 exposing him to hazards and dangers not contemplated 
 in the contract of service, the company might have 
 been liable, and also that there would have been some 
 plausibility in the claim of liability, if the deceased 
 had been injured in the doing of an act which Fricke 
 had ordered him to do, but inasmuch as the injury 
 occurred from acts which Fricke negligently ordered 
 others to do, there could be no liability. They also 
 make the statement that "it was not a duty which 
 the company owed to its servants, to give any direc- 
 tions about the doing of that piece of work," to wit, 
 the pushing of a carload of lumber into the car shops, 
 but they fail to announce how such work could be 
 done, unless some body directed it. 
 
 The doctrine of fellow-servants was again discussed 
 in Abend v. T. H. '& I. R. R. Co., Ill 111. 206. That was 
 
MASTER AND SERVANT. 537 
 
 an action brought by the plaintiff to recover damages 
 for injuries resulting in the death of plaintiff's intes- 
 tate, Thomas Beasley, in a railroad collision, alleged 
 to, have been caused by the negligence of the defendant 
 company. Upon the trial in the circuit court the 
 evidence introduced by the plaintiff was excluded, and 
 the jury were instructed to find for the defendant. In 
 delivering the opinion of the supreme court, Mr. 
 Justice Mulkey, says : 
 
 "The circumstances under which Beasley was killed, and 
 which gave rise to the present litigation, are as follows : On the 
 25th of June, 1880, one of the defendant's trains was wrecked 
 on its road, near Confidence Hill, in Madison county, this state. 
 On the following day, the deceased, being an employee of the 
 company, together with a number of others, was ordered, by 
 the proper officer of the company, to go out from East St. Louis, 
 on a wrecking train of the defendant, to the place of collision, 
 for the purpose of assisting in removing the wreck, which he 
 proceeded to do.' The train was under the control of one 
 Busse, who acted in the capacity both of conductor and engi- 
 neer. Beasley, instead of taking a seat in the wrecking car, as 
 he should have done, in violation of a published rule of the 
 company of many years' standing, and of which, from the cir- 
 cumstances, he must have had notice, got on the locomotive and 
 took a seat on the fireman's side, immediately in front of Cope, 
 the fireman, the train moving off as he did so, in which position. 
 he remained until a short time afterwards, when the locomotive 
 upon which he was riding collided with the engine of a freight 
 train coming in the opposite direction, causing his immediate 
 death. The train upon which the deceased was riding was what 
 is known, particularly among railroad men, as a ' wild train,' — 
 that is, a train not running by schedule, but under special in- 
 structions. By the orders delivered to Busse he was expressly 
 directed to keep out of the way of the very train with which 
 his own train collided. This he neglected to do, — hence the col- 
 lision, and the serious consequences resulting therefrom." 
 
538 REMEDIES. 
 
 The learned judge, after stating the pleadings and 
 evidence, continues : 
 
 "We are of opinion the proofs, so far from snowing the 
 deceased was exercising due care when the accident occurred, 
 established beyond controTersy he was guilty of such negligence 
 as to absolutely forbid a recovery. Indeed, it does not seem to 
 be seriously contended the deceased was free from negligence, 
 but the contention appears to be that Beasley's death was the 
 immediate result of the collision, and that the negligence of the 
 deceased was not an element or factor in producing the collision, 
 hence it seems to be concluded that however gross his negli- 
 gence, it cannot affect his right of recovery. This view, plausi- 
 ble as it may appear, is dearly unsound. It cannot be main- 
 tained as a general proposition, that in actions for personal 
 injuries caused by the defendant's negligence, the contributory 
 negligence of the injured party will constitute no defense, 
 except when the latter's negligence is an element or factor in 
 producing the force causing the injury complained of. It. is 
 sufficient if the plaintiff's negligence materially contributes to 
 the injury,, whether it contributes to the force causing the 
 injury, or not. Whatever dicta, or even decisions, may be found 
 to the contrary, the cases fully establish the rule as here stated. 
 Galena & Chicago Union R. R. Co. v. Fay, 16 111. 558 ; Illinois 
 Central R. R. Co. v. Buckner. 28 id. 299 ; Chicago & Alton R. 
 R. Co. v. Becker, 76 id. 25. 
 
 " A simple illustration will demonstrate the fallacy of the 
 principle contended for. A party deliberately lies down upon 
 a railroad track where trains of a railroad company are contin- 
 ually passing, and falls asleep. Presently a train comes along 
 at a forbidden rate of speed, and the engineer neglects to ring the 
 bell as required by statute, and the party on the track is injured. 
 In the case supposed it is clear there could be no recovery, and 
 yet the negligence of the party injured did not contribute to 
 the force causing the injury, nor did it have any connection 
 with the negligence of the company in operating its train. It 
 consisted simply, as in the present case, in the injured party 
 placing himself in a dangerous position, but for which the acci- 
 dent would not have happened. The principle deducible from 
 
MASTER AND SERVANT. 539 
 
 the cases generally, is, that if the plaintiff, by the exercise of ordi- 
 nary care and prudence, could have avoided the consequences of 
 the defendant's negligence, and fails to do so, he can not recover. 
 Indeed it is a fundamental principle the plaintiff can not recover 
 in any case for an injury occasioned by negligence merely, which 
 would have been avoided by the exercise of ordinary care and 
 prudence on the part of the plaintiff himself. Of course, the 
 rule here announced has no application where the element of 
 fraud or intentional injury enters into the case, for however 
 negligent the plaintiff may be, the defendant has no right to 
 practice a fraud upon or willfully injure him. 
 
 " But conceding, for the purposes of the argument, the court 
 should not have withdrawn the question of due care of the 
 plaintiff from the jury, we have no hesitancy in saying the case 
 made by the plaintiff was wholly insufficient to warrant a recov- 
 ery upon the other question, and the case was therefore properly 
 withdrawn from the jury on that ground. The Cox Case, 21 
 HI. 23, the Keefe Case, 47 id. 108, the Britz Case, 72 id. 256, and 
 the Durkin Case, 76 id. 395, all fully sustain the ruling of the 
 court below upon this question. The evidence, construed in the 
 light of these cases, shows beyond all controversy that Beasley 
 was a fellow-servant with Busse, through whose negligence and 
 disobedience of orders the collision was brought about. The 
 evidence shows that a wrecking force is always made up, in the 
 hurry of the moment, out of the employees and servants of the 
 company, who happen to be within convenient reach, .without 
 regard to the particular line of service in which they are em- 
 ployed. The removing of obstructions from the tracks in case 
 of a collision is, as shown by the proofs in the case, a distinct 
 branch of service, to which all the laboring force of the com- 
 pany are liable to be called, without any reference to their ordi- 
 nary calling and duties ; and when a force thus made up goes 
 aboard the wrecking train and starts to the scene of disaster, 
 they are all, including conductor, engineer, fireman and brake- 
 men, just as much in a common branch of service while on the 
 way, as they are after their arrival and the work of clearing the 
 tracks has actually commenced. It is an error to suppose that a 
 force of men can not be engaged in a common service, unless 
 all are continuously working at the same time and engaged in 
 
540 REMEDIES. 
 
 doing precisely the same kind o£ work. It is sufficient if all are 
 actually employed by the same master, and that the work of 
 each, whatever it may be, has for its immediate object a common 
 end or purpose, sought to be accomplished by the united efforts 
 of all. The skill of a carpenter, blacksmith, or other mechanic, 
 might be very useful in removing a wreck, and when thus work- 
 ing together, in such a service, though each one in his own partic- 
 ular way, they are all, within the meaning of the rule, engaged 
 in a common employment, notwithstanding in their ordinary 
 employment they have no connection with other, and conse- 
 quently when so engaged are not fellow-servants. The deceased, 
 though not actually using a hammer or other tool at the very 
 moment he was killed, was nevertheless just as clearly in the 
 employ of the company for the purposes of the business then 
 in hand as the remainder of the force who actually assisted in 
 removing the wreck. One who is hired by the day, week or 
 year, is just as much in his employer's service in going to and 
 from his work, as when actually engaged in the work itself. 
 " The judgment will be affirmed." 
 
 From this opinion, Mr. Justice Scott and Mr. Jus- 
 tice Dickey dissent, though upon what grounds does 
 not appear. 
 
 Two propositions, announced by the court in this 
 case, would seem to merit some discussion. One 
 proposition is, that the conduct of the deceased, in 
 taking a place upon the engine, was such negligence 
 as to preclude a recovery. The other is, that when a 
 number of men are placed upon a wrecking train, in 
 charge of the engineer, to be carried to the wreck, 
 they are all fellow-servants of such engineer, within 
 the meaning of the rule that exempts the common 
 master from liability for the negligence of one servant, 
 resulting in an injury to another. 
 
 In support of the first proposition, in announcing 
 which, of course, the court assume that Beasley and 
 the engineer were not fellow-servants, it is declared 
 that " it is a fundamental principle, the plaintiff can- 
 
MASTER AND SERVANT. 541 
 
 not recover, in any case, for an injury occasioned by 
 negligence merely, which would have been avoided by 
 the exercise of ordinary care and prudence on the part 
 of the plaintiff himself." And by way of illustrating 
 the case in hand, the case is supposed of a party 
 deliberately lying down upon a railroad track, and 
 being run over by a train coming along at a forbidden 
 rate of speed, in which case, it is said, there can be 
 no recovery. 
 
 Not only is the principle announced unsound, but 
 the illustration does not fit the case in question. It is 
 uot true that a plaintiff cannot recover for an injury 
 occasioned by negligence merely, which would have 
 been avoided by the exercise of ordinary care on the 
 part of the party injured. On the contrary, as we 
 have already shown (ante, p. 378), all text-writers and 
 all courts, including the Supreme Court of Illinois, 
 have announced the doctrine that a failure on the part 
 of the plaintiff to exercise ordinary care, which, if 
 exercised, would have avoided the injury, will not bar 
 a recovery, where the defendant, after becoming aware 
 of the plaintiff's situation, fails to exercise ordinary 
 care to avoid injuring him. 
 
 Now, in the case under review, the position of 
 Beasley upon the engine was known to the engineer, 
 and if Beasley was guilty of a want of ordinary care 
 in being there, that fact was known to the engineer. 
 It follows, therefore, from the rule above stated, that 
 if the engineer was the representative of the company, 
 and not a fellow-servant with Beasley, the latter's 
 want of ordinary care did not relieve the company 
 from the duty of exercising due and proper care to 
 avoid inflicting injury upon him. 
 
 The illustration, attempted to be made by the court, 
 would have been a proper one, had it supposed, as one 
 of the facts, that those operating the train had observed 
 
542 REMEDIES. 
 
 the party lying upon the track, and had then not used 
 ordinary care to avoid injuring him. In such a case, 
 the party injured could undoubtedly have recovered. 
 
 The second proposition announced by the court, to 
 wit, that Beasley and the engineer were fellow-ser- 
 vants, is bad, for two reasons. In the first place, the 
 facts do not bring the case within the definition of 
 fellow-servants. They are declared, in the Moranda 
 Case, to be those directly co-operating in the particular 
 business in hand, or those whose usual duties shall 
 bring them into habitual consociation, so that they 
 may exercise an influence upon each other promotive 
 of proper caution. The particular business in hand at 
 the time of the collision in question, was the running of 
 the train to the place of the wreck, and there can be no 
 pretense whatever that the engineer, and those who 
 were to assist at clearing away the wreck, were in any 
 sense co-operating in the running of the train. They 
 were merely being conveyed by the company to the 
 scene of the wreck, and the train, upon which they 
 were riding, was under the exclusive control of the 
 engineer, and they had nothing whatever to do with 
 its management. 
 
 Nor were the usual duties of the engineer, and 
 those who were to assist in the removing of the wreck, 
 such as to bring them into habitual consociation, so 
 that they might exercise an influence over each other 
 promotive of proper caution. Their duty of assisting 
 at wrecks was an unusual one, and it is not reasonable 
 to suppose that, because workmen were carried to the 
 scene of a wreck by a train in charge of an engineer, 
 they were thus enabled to exercise an influence over 
 him promotive of proper caution in the running of the 
 train. 
 
 In the second place, whether these servants were 
 fellows was one of fact for the jury. The court had no 
 
MASTER AND SERVANT. 543 
 
 right to do more than give the definition. This was 
 the decision in the'Moranda Case, upon the second 
 appeal, when the judgment was reversed, because the 
 trial judge decided that Moranda and the engineer and 
 fireman were not fellow-servants ; and in I. & St. L. R. 
 R. Co. v. Morgenstern, 106 111. 220, as we have before 
 seen (ante, p. 172), the court unanimously declared that 
 "the definition of fellow-servants may be a question of 
 law, but it is always a question of fact, to be deter- 
 mined from the evidence, whether a given case falls 
 within that definition." How, then, in the case under 
 review, could the trial judge be sustained in deciding, 
 for himself, that Beasley and the engineer were fellow- 
 servants ? Why should he not have given the jury the 
 definition of fellow-servants, and left it to them to 
 determine, whether the particular case fell within the 
 definition ? 
 
 This decision in the Abend Case, to be fully appre- 
 ciated, should be contrasted with that of the Supreme 
 Court of the United States in Chicago, Milwaukee & 
 St. Paul Railway Company v. Ross, 112 U. S. 377. 
 That was an action brought by the plaintiff below, 
 who was an engineer on a railway train, to recover 
 damages of the company for injuries resulting from a 
 collision caused by the negligence of the conductor. 
 The defendant company claimed that it was not liable, 
 the engineer and the conductor being, as it contend- 
 ed, fellow-servants. The court below held that they 
 were not fellow-servants and charged the jury accord- 
 ingly. There being a verdict and judgment for the 
 plaintiff, the defendant appealed, In delivering the- 
 opinion of the court, Mr. Justice Field, among other 
 things, says : 
 
 "There is, in our judgment, a clear distinction to be made 
 in their relation to their common principal, between servants of 
 a corporation, exercising no supervision over others engaged 
 
544 REMEDIES. 
 
 with them in the same employment, and agents of the corpora- 
 tion, clothed with the control and management of a distinct de- 
 partment, in which their duty is entirely that of direction and 
 superintendence. A conductor, having the entire control and 
 management of a railway train, occupies a very different posi- 
 tion from the brakemen, the porters, and other subordinates 
 employed. He is in fact, and should be treated as, the personal 
 representative of the corporation, for whose negligence it is re- 
 sponsible to subordinate servants. This view of his relation to 
 the corporation seems to us a reasonable and just one, and it 
 will insure more care in the selection of such agents, and thus 
 give greater security to the servants engaged under him in an 
 employment requiring the utmost vigilance on their part, and 
 prompt and unhesitating obedience to his orders. The rule 
 which applies to such agents of one railway corporation must 
 apply to all, and many corporations operate every day several 
 trains over hundreds of miles at great distances apart, each 
 being under the control and direction of a conductor specially 
 appointed for its management. We know from the manner in 
 which railways are operated that, subject to the general rules 
 and orders of the directors of the companies, the conductor has 
 entire control and management of the train to which he is 
 assigned. He directs when it shall start, at what speed it shall 
 run, at what stations it shall stop, and for what length of time, 
 and everything essential to its successful movements, and all 
 persons employed on it are subject to his orders. In no proper 
 sense of the term is he a fellow-servant with the fireman, the 
 brakemen, the porters and the engineer. The latter are fellow- 
 servants in the running of the train under his direction; as 
 to them and the train, he stands in the place of and represents 
 the corporation. As observed by Mr. Wharton, in his valuable 
 treatise on the Law of Negligence. 'It has sometimes been 
 said that a corporation is obliged to act always by servants, and 
 that it is unjust to impute to it personal negligence in cases 
 where it is impossible for it to be negligent personally. But if 
 this be true, it would relieve corporations from all liability to 
 servants. The true view is, that, as corporations can act only 
 through superintending officers, the negligences of those officers, 
 
MASTER AND SERVANT. 545 
 
 with respect to other servants are the negligences of the cor- 
 poration.' " 
 
 The learned judge, after citing and commenting 
 upon several decided cases, further says : 
 
 " There are decisions in the courts of other States, more or 
 less in conformity with those cited from Ohio and Kentucky, 
 rejecting or limiting, to a greater or less extent, the master's 
 exemption from liability to a servant for the negligent conduct 
 of his fellows. We agree with them in holding — and the pres- 
 ent case requires no further decision — that the conductor of a 
 railway train, who commands its movements, directs when it 
 shall start, at what stations it shall stop, at what speed it shall 
 run, and has the general management of it, and control over 
 the persons employed upon it, represents the company, and 
 therefore that, for injuries resulting from his negligent acts, 
 the company is responsible. If such a conductor does not repre- 
 sent the company, then the train is operated without any repre- 
 sentative of. its owner. 
 
 " If, now, we apply these views of the relation of the con- 
 ductor of a railway train to the ' company, and to the subordi- 
 nates under him on the train, the objections urged to the 
 charge of the court will be readily disposed of. Its language in 
 some sentences may be open to verbal criticism; but its purport 
 touching the liability of the company is, that the conductor and 
 engineer, though both employees, were not fellow-servants in 
 the sense in which that term is used in the decisions ; that the 
 former was the representative of the company, standing in its 
 place and stead in the running of the train, and that the latter 
 was, in that particular, his subordinate, and that for the former's 
 negligence, by which the latter was injured, the company was 
 responsible." 
 
 Had the rule thus announced been adopted in the 
 Abend Case, it would have been held that the engi- 
 neer Busse, who also acted as conductor, was not a 
 fellow-servant of the blacksmith Beasley, or of any of 
 the laborers upon the train. 
 
 35 
 
546 EEMEDIES 
 
 The arguments used in these opinions of the ma- 
 jority and the minority of the court in the May Case, 
 and the dissents in the Abend Case, recall forcibly to 
 the mind the celebrated case of Scott v. Shepherd, 2 
 Blackstone, 892 (1 Smith's Leading Cases, 754 * 549) in 
 which the facts, as stated by the reporter, were as 
 follows : 
 
 "Trespass and assault for throwing, casting and tossing a 
 lighted squib at and against the plaintiff, and striking him 
 therewith on the face, and so burning one of his eyes that he 
 lost sight of it, whereby, etc. On not guilty pleaded, the cause 
 came to be tried before Nares, J., last summer assizes at Bridge- 
 water, when the jury found a verdict for the plaintiff with £100 
 damages, subject to the opinion of the court on this case. On 
 the evening of the fair day at Milbourne Port, 28th October, 
 1770, the defendant threw a lighted squib, made of gun powder, 
 etc., from the street into the market-house, which is a covered 
 building supported by arches, and inclosed at one end, but open 
 at the other and both the sides, where a large concourse of 
 people were assembled ; which lighted squib, so thrown by the 
 defendant, fell upon the standing of one Yates, who sold 
 gingerbread, etc. That one Willis instantly, and to prevent 
 injury to himself and the said wares of the said Yates, took up 
 the said lighted squib from off the said standing, and threw it 
 across the said market-house, where it fell upon another stand- 
 ing there of one Ryal, who sold the same sort of wares, who 
 instantly, and to save his own goods from being injured, took 
 up the said lighted squib from off the said standing, and then 
 threw it to another part of the said market-house, and in so 
 throwing it struck the plaintiff, then in the said market-house, 
 in the face therewith, and the combustible matter then burst- 
 ing, put out one of the plaintiff's eyes. Qu. If this action be 
 maintainable ? 
 
 " This case was argued last term by Glyn, for the plaintiff, 
 and Burland for the defendant, and this term, the court being 
 divided in their judgment, delivered their opinions seriatim." 
 
MASTER AND SERVANT. 547 
 
 The reporter further informs us that Nares, J., was 
 of the opinion that trespass would lie ; that Black- 
 stone, J., was of the opinion that trespass would not 
 lie ; that Gould, J., was of the same opinion with 
 Nares, J., and that DeGrey, C. J., concurred with his 
 Brothers Gould and Nares. Learned and exhaustive, 
 however, as were the opinions then delivered, illus- 
 trating and defining the distinctions between "tres- 
 pass " and " case," they were insufficient to relieve the 
 courts and the profession from the consideration of 
 perplexing questions growing out of those fine dis- 
 tinctions, and those perplexing questions continued 
 to worry the judges, until the distinctions were abolish- 
 ed by statute. The cause of the difficulty was the 
 attempt to make distinctions, which had no sound 
 reason for their support. 
 
 There is a similar difficulty with the doctrine of 
 fellow-servants. For thirty years the courts of this 
 State have been perplexed with this troublesome 
 question, and every decision, that has been supposed to 
 settle it, has only resulted in producing new difficulties 
 and perplexities. The whole cause of the trouble is 
 the attempt to make distinctions between different 
 classes of servants, which are contrary to common 
 sense and sound reason. Unless the question is put 
 at rest by the legislature, the law on the subject will 
 soon be in much the same condition as that in rela- 
 tion to the doctrine of comparative negligence. 
 
 The reasons, which have been assigned for exempt- 
 ing the common master from liability for injury to 
 one servant by the negligence of another servant, are 
 stated in the Chicago, Milwaukee & St. Paul Railway 
 Company v. Eoss, supra, in which Mr. Justice Field, in 
 delivering the opinion of the court, says : 
 
 " The general liability of a railroad company for injuries, 
 caused by the negligence of its servants, to passengers and 
 
548 REMEDIES. 
 
 others not in its service is conceded. It coyers all injuries to 
 which they do not contribute. But where injuries befall a ser- 
 vant in its employ, a different principle applies. Having been 
 engaged for the performance of specified services, he takes upon 
 himself the ordinary risks incident thereto. As a consequence, 
 if he suffers by exposure to them, he cannot recover compensa- 
 tion from his employer. The obvious reason for this exemp- 
 tion is that he has, or, in law, is supposed to have them in con- 
 templation when he engages in the service, and that his com- 
 pensation is arranged accordingly. He can not, in reason, 
 complain, if he suffers from a risk which he has voluntarily 
 assumed, and for the assumption of which he is paid. There is 
 also another reason often assigned for this exemption — that of 
 a supposed public policy. It is assumed that the exemption 
 operates as a stimulant to diligence and caution on the part of 
 the servant for his own safety as well as that of his master. 
 Much potency is ascribed to this assumed fact by reference to 
 those cases where diligence and caution on the part of servants 
 constitute the chief protection against accidents. But it may 
 be doubted whether the exemption has the effect thus claimed 
 for it. We have never known parties more willing to subject 
 themselves to dangers of life or limb because, if losing the one, 
 or suffering in the other, damages could be recovered by their 
 representatives or themselves for the loss or injury. The dread 
 of personal injury has always proved sufficient to bring into 
 exercise the vigilance and activity of the servant." 
 
 The reason last assigned is so thoroughly disposed 
 of by Mr. Justice Field, that little more need be said 
 concerning it. To hold that the fact, that nd recovery 
 of damages could be had, would increase the servant's 
 regard for his personal safety, is to contradict human 
 nature. 
 
 The first reason assigned, to wit, that the servant 
 takes upon himself the ordinary risks incident to the 
 service, deserves a more careful consideration. What 
 are "ordinary risks," in the eye of law? They are 
 simply those risks which the courts declare the servant 
 
MASTER AND SERVANT. 549 
 
 assumes. Who are the servants, who, in the eye of 
 the law, assume the risks of injury from the negligence 
 of other servants ? They are those servants, whom the 
 courts choose to say assume those risks. This is the 
 logic which is given us hy the courts. 
 
 It is said, the servant has these risks in contempla- 
 tion when he engages in the service, and that his com- 
 pensation is arranged accordingly. Theoretically, this 
 is true enough. But how is- it practically ? Where is 
 there, in all this vast commonwealth, a section hand, 
 who contracts to work, for the support of himself and 
 family, for ninety cents a day, in contemplation of a 
 decision of the Supreme Court of Illinois, that, if he 
 is killed by being negligently struck and injured by 
 the foreman, who hires and discharges, directs and con- 
 trols him, the company will not be liable, but if he 
 is killed by the act of another workman, which is the 
 result of a negligent and improper order given by 
 the foreman, it will be ? If there be such a man, 
 obviously he should not be wasting his valuable time 
 working as a day laborer upon a railroad.' He should 
 certainly be made at least the presiding judge of an 
 appellate court, there, by his extraordinary reasoning 
 faculties, to verify the saying of Lord Coke : 
 
 "For ratio est radius divini luminis, and by reasoning and 
 debating of grave learned men, the darkness of ignorance is ex- 
 pelled, and by the light of legal reason the right is discerned, 
 and thereupon judgment given according to law, which is the 
 perfection of reason. This is of Littleton called legitima ratio, 
 whereunto no man can attain but by long study, often confe- 
 rence, long experience, and continual observation." 
 
 But even were the laboring man endowed with this 
 radius divini luminis, to aid him in determining what 
 the law was, how could he, as a general rule, know the 
 risks he assumed, without the aid of the- verdict of a 
 jury of his peers ? As we have already seen, it is, in 
 
550 REMEDIES. 
 
 most cases, only the definition of fellow-servants that 
 is a question of law, it being a question of fact for the 
 jury, whether the particular case falls within the defi- 
 nition. The servant, therefore, to fully understand his 
 rights, must be able to predict not only the decisions 
 of the judges as to the law, but also the findings of the 
 jurors as to the facts. 
 
 It seems a waste of time to discuss the propriety 
 of the doctrine of fellow-servants, if, indeed, there can 
 be said to be any fixed and settled doctrine, in force in 
 this state. The reasons, upon which it is supposed to 
 be founded, are manifest absurdities, and it should be 
 abolished. All servants of the same master should be 
 upon an equal footing, so far as their right to recover 
 for the negligence of other servants is concerned. 
 The common master should be liable in all cases, or 
 not at all. 
 
 The first section of the proposed act would accom- 
 plish this change in the law, so far as railway corpo- 
 rations are concerned — a change, which was brought 
 about in Iowa many years ago. (See Iowa Code, sec- 
 tion 1307.) There are many reasons in favor of abol- 
 ishing the doctrine of fellow-servants, as to these com- 
 panies, that do not apply as to other corporations, or 
 to individuals. The principal one is, that the public 
 have a special interest in having railways managed by 
 competent and careful servants, to the end that rail- 
 way accidents may be avoided, and the liability of 
 railway companies to servants for the negligent acts 
 of other servants, would necessarily tend to the exer- 
 cise of greater care, on the part of those corporations, 
 in the selection of their servants. 
 
 The second section of the proposed act is intended 
 to abrogate the rule of law now in force, which is 
 stated by Shearman & Redfield, in their work on Neg- 
 ligence, as follows : 
 
MASTER AND SERVANT. 551 
 
 " § 94. It is obvious, however, that an employer may relieve 
 himself of all common law liability for accidents occurring 
 to his servants, through defects in materials or in the char- 
 acter of fellow-servants, by giving explicit warning of such 
 defects, and notice that be does not intend to remedy them. 
 For servants remaining after such a warning must be deemed 
 to assume the risk for themselves, as much as if it were one of 
 the ordinary risks of the business. The courts have gone further 
 than this, and hold that if a servant knows that a fellow-servant 
 is habitually negligent, or that the number of servants employed 
 is insufficient, or that the materials with which he works are 
 defective, and continues his work without. being induced by his 
 master to believe that a change will be made, and without plainly 
 objecting, he is deemed to have assumed the risk of such defects. 
 For it is often impracticable for the master to obtain suitable 
 materials or competent servants ; and he is compelled to use 
 such materials and assistance as he can get, although not suit- 
 able. The law does not absolutely prohibit him from doing this ; 
 and although it holds him responsible to strangers who are in- 
 jured thereby, it leaves his servants free to insist upon their 
 rights, or to waive them, as they may see fit. No matter how 
 great may be the danger to which a defect in the building or 
 materials may expose the servant, yet if he remains in service, 
 knowing that the master does not intend to repair it, he takes 
 upon himself the risk of injury therefrom. Upon the same 
 principle, where the servant's action is founded upon the assump- 
 tion that the master ought to have known of the defect which 
 caused the injury, it is clearly a sufficient defense to show that 
 the servant had equal means of knowledge." 
 
 The same doctrine has been laid down by the 
 supreme court, in Pennsylvania, Co. v. Lynch, 90 111. 334, 
 in which Mr. Justice Scholfield, in delivering the opin- 
 ion of the court, says : 
 
 " While there is an implied contract between employer and 
 employee that the former shall procure and keep suitable tools, 
 implements, means, etc., with which to perform the labors 
 required of the latter, and also that the latter shall be advised 
 by the former of all the dangers incident to the service, of 
 
552 KEMEDIES. 
 
 which the latter is not cognizant, yet the failure of the employer 
 in this regard furnishes no excuse for the conduct of an em- 
 ployee who voluntarily incurs a known danger. He must him- 
 self use due care and caution to avoid injury. If he has full 
 knowledge of all the perils of a particular service, he may 
 decline to engage in it, or require that it shall first be made 
 safe ; but if he does thus enter it, he assumes the risk and must 
 bear the consequences. As was observed in Priestly v. Fowler, 
 3 M. & W. 1, ' The mere relation of master and servant can never 
 imply an obligation on the part of the master to take more care 
 of a servant than he may reasonably be expected to take of 
 himself.' And so it is held that where the defects in the 
 machinery or other appliances are as well known to the servant 
 as to the master, the servant must be regarded as voluntarily 
 incurring the risk resulting from its use, unless the master, by 
 urging on the servant or coercing him into danger, or in some 
 other way, directly contributes to the injury." 
 
 This ruling, when construed in the light of the 
 opinion in the Clark Case, 108 111. 114. (ante p. 34), 
 which declares, that reasonable care on the part of the 
 servant would attain the same results as reasonable 
 care on the part of the master, must necessarily re- 
 lieve the master from all liability to the servant for 
 injuries, resulting from defective materials or improper 
 methods of work; for in every such action, it will be a 
 sufficient answer for the master to say, that the 
 servant might, by proper care, have discovered the 
 danger, and quit work, if he was unwilling to incur it. 
 
 All will agree, that a sound public policy demands, 
 that the master should use reasonable care to avoid 
 exposing the servant to unnecessary risk, and the law 
 which is best calculated to produce that degree of 
 care, is the one which should be enacted and enforced. 
 It is quite evident, that a law which imposes that duty 
 upon the master, and at the same time relieves him 
 from liability for its breach, is, to all intents and pur- 
 poses, a nullity 
 
MASTER AND SERVANT. 553 
 
 The reasoning by which courts arrive at the con- 
 clusion, that notice to the servant shall relieve the 
 master, is, that the servant is a free agent, and has the 
 option to work, or not, as he pleases, and if he chooses 
 to continue the work after notice of the danger, he is 
 presumed to assume the risk. Theoretically, this, like 
 many other propositions of law, is sound enough and 
 it may seem entirely proper, when viewed from the 
 standpoint of a judge, enjoying a salary of several 
 thousand dollars per annum. Such a man is, indeed, 
 a free agent. If the work, at which he is engaged, is 
 not suited to his taste, he may seek other employment 
 more congenial. But how is it with an ordinary 
 laboring man, working in a factory, with defective 
 materials, or machinery, for one dollar or two dollars 
 per day, with a family to support ? Is such a man a 
 free agent, when his daily labor is necessary to keep 
 his family from starvation, and when, if he refuses to 
 work with the materials or machinery furnished him, 
 many others are willing to take his place, and he may 
 not be able to find employment elsewhere ? 
 
 The act proposed would not make the master ab- 
 solutely liable for defects in materials and machinery. 
 It would simply impose upon him the duty of using 
 ordinary care to make such materials and machinery 
 reasonably safe. Nor would it relieve the servant 
 from the duty of using reasonable care to avoid 
 injury. It would simply relieve him from the neces- 
 sity of choosing between idleness, on the one hand, 
 and work with dangerous materials, or machinery, at 
 his own risk, on the other. 
 
 With both the great political parties in this State, 
 committed to the policy of doing everything reasona- 
 bly necessary to protect laboring men, there should be 
 no hesitation about the passage of a statute such as is 
 above proposed. 
 
554 REMEDIES. 
 
 8. THE GRANTING OF NEW TRIALS. 
 
 The number of new trials, that may be granted to 
 the same party in the same cause, should be limited 
 by a statute that can not be misconstrued. The fol- 
 lowing would be sufficiently definite : 
 
 An act to amend an act entitled "An act in regard to 
 practice in courts of record," in force July 1, 1872. 
 
 § 1. Be it enacted by the People of the State of Illinois repre- 
 sented in the General Assembly, That section fifty-six (56) of 
 the act entitled "An act in regard to practice in courts of 
 record" in force July 1, 1872, be and the same is hereby amend- 
 ed so as to read as follows : 
 
 " § 56. It shall be sufficient for the jury to pronounce their 
 verdict, by their foreman, in open court, without reducing the 
 same to writing, and the clerk shall enter the same in form, 
 under the direction of the court ; and if either party may wish 
 to except to the verdict, or, for other causes, to move for a new 
 trial or in arrest of judgment, he shall, before final judgment be 
 entered, or during the term it is entered, by himself or counsel, 
 file the points in writing particularly specifying the grounds of 
 such motion, and final judgment shall thereupon be stayed until 
 such motion can be heard by the court. But no more than two 
 new trials shall be granted to the same party in the same cause, 
 and the third verdict in favor of the same party in the same 
 cause shall be final and conclusive of the rights of the parties, 
 both upon the law and the facts, and the same shall not be set 
 aside or annulled, either in the court in which it is rendered, or 
 in any court to which such cause may be removed upon appeal 
 or writ of error. Nor shall any verdict or judgment be set 
 aside for irregularity only, unless cause be shown for the same, 
 during the sitting of the court, at the term such judgment or 
 verdict shall be given. In all cases where a new trial shall be 
 granted on account of improper instructions having been given, 
 by the judge, or improper evidence admitted, or because the 
 verdict of the jury is contrary to the weight of the evidence, or 
 for any other cause not the fault of the party applying for such 
 new trial, said new trial shall be granted without costs, and as 
 of right." 
 
FINDINGS OF FACT. 555 
 
 By reason of the ruling of the Supreme Court, 
 which has been discussed in the chapter entitled, 
 " Trial by Jury," (ante, p. 285), there is now practically 
 no limit to the number of new trials that may be 
 granted by the appellate or supreme court in any case. 
 Three trials of any common law action ought to be 
 sufficient to properly determine the questions of law 
 and fact involved, and while the limit proposed might 
 occasionally result in injustice, the wrong 'done would 
 be trifling, compared with that which is done under 
 the present system. If the rule is adhered to, which 
 authorizes the trial judge to exclude the evidence 
 from the consideration of the jury, whenever it is 
 insufficient to support a verdict, no wrong whatever 
 need be occasioned by limiting the number of trials 
 to three. * 
 
 9. FINDINGS OF FACT BY APPELLATE COURTS. 
 
 Section eighty-seven (87) of the practice act, under 
 which the appellate court are permitted to substitute 
 their own verdict for that of the jury, should be 
 amended by a statute substantially as follows : 
 
 An act to amend an act entitled "An act in regard to 
 practice in courts of record" in force July 1, 1872. 
 
 § 1. Be it enacted by the people of the State of Illinois repre- 
 sented in the General Assembly, That section eighty-seyen (87) 
 added to the act entitled " An act in regard to practice in courts 
 of record" in force July 1, 1872, by the act entitled "An act to 
 amend an act entitled 'An act in regard to practice in courts of 
 record,' approved February 22, 1872," in force July 1, 1877, be 
 and the same is hereby amended so as to read as follows : 
 
 " § 87. If, in any action at law tried by jury, the judgment 
 of the trial court shall be affirmed by the appellate court, it 
 shall be the duty of the appellate court to recite in their final 
 order or judgment the facts as found by them, and in case of 
 the removal of such cause to the supreme court by appeal or 
 writ of error, the judgment of the appellate court shall be 
 
556 REMEDIES. 
 
 affirmed, unless the supreme court shall be of the opinion, that 
 the facts thus found by the appellate court are insufficient in 
 law to support the verdict of the jury and the judgment of the 
 trial court, in which case, the judgments of the trial court and 
 appellate court shall be reversed and the cause remanded to the 
 trial court with directions to such trial court to award a new 
 trial." 
 
 In the chapter entitled " Trial by Jury," {ante p. 
 290), it is attempted to be shown that section eighty- 
 seven, now in force, is unconstitutional, in that it 
 authorizes the appellate court to set aside the verdict 
 of a jury, and to substitute therefor a contrary finding 
 of the judges, which is final and conclusive. The 
 amendment proposed would withdraw this extraor- 
 dinary and unwarranted power from the appellate 
 courts, and would remedy some, of the evils complain- 
 ed of in the chapter entitled "'The Appellate Courts," 
 {ante p. 474). 
 
 There is no reason or justice in a law which, in 
 effect, makes the decision of the appellate court final 
 when they differ from, but gives it little or no force, 
 when they concur with the trial judge and the jury. 
 When the two courts differ in opinion upon the ques- 
 tion, whether the verdict of the jury is just, and has 
 been arrived at in a proper way, it is eminently proper 
 that their difference of opinion should be referred to 
 the supreme court, in order that that court may de- 
 termine which of the lower courts has decided cor- 
 rectly. But, when the two courts concur in opinion, 
 the presumption that the result arrived at is correct, 
 should be so strong as to eliminate from the record all 
 questions of a merely technical character, and leave 
 for the supreme court only the question, whether the 
 facts, found by the trial and appellate courts, are suffi- 
 cient in law to support the verdict. 
 
FINDINGS OF FACT. 557 
 
 The present law is, to say the least, an unjust re- 
 flection upon the trial courts, for it presumes that 
 judgments reversed by the appellate courts are so 
 plainly and palpably erroneous, that there is no possi- 
 bility of error being committed in their reversal. On 
 the other hand, the law also belittles the appellate 
 courts, for, in affirming judgments, they only perform 
 the functions of a committee of critics, whose work is 
 to be reviewed by another committee of critics, whose 
 faculties for the detection of trivial errors and irregu- 
 larities have, by long and careful cultivation, reached 
 a much higher state of perfection. The whole appel- 
 late court act seems to have been framed upon the 
 theory, that the end to be accomplished was to secure 
 the reversal of as many, and the affirmance of as few 
 of the judgments of the trial courts as possible. 
 
 The proposed act would go far towards transform- 
 ing the supreme court into a tribunal for the decision 
 of importaat questions of law, such as they should 
 be, instead of permitting them to waste their time 
 upon trivial questions, and it would also make the 
 appellate courts important and respectable. There is 
 neither any necessity, nor propriety in permitting or 
 requiring the supreme court to pass upon all the ques- 
 tions presented by a bill of exceptions. Especially is 
 this true in the class of cases which has been hereto- 
 fore discussed. In an action against a railroad com- 
 pany for injuring or killing a man, there are few ques- 
 tions of law that can arise, that the appellate courts 
 are not fully as competent to settle as the supreme 
 court, and such a case should only be referred to the 
 supreme court for decision, when the trial court and 
 the appellate court disagree. To permit the supreme 
 court to reverse the judgment of an appellate court, 
 because an instruction omits the words "from the 
 evidence," as in the Morrissey Case, {ante p. 476); or 
 
558 REMEDIES. 
 
 because the question of comparative negligence was 
 not submitted to the jury, as in the Sykes Case, {ante 
 p. 20) ; or because that question was submitted to the 
 jury, as in the Clark Case, {ante p. 33); or because the 
 language of an instruction was changed without chang- 
 ing its legal effect, as in the Warner Case, {ante p. 37 j; 
 or because an instruction stated that a track-repairer 
 and a fireman were not fellow-servants, or a witness 
 was permitted to state his opinion as to what was a 
 safe distance to retire from the track, when trains 
 are passing, as in the Moranda Case, {ante p. 48); or 
 because of any other similar errors, may be very ad- 
 vantageous to railroad companies, but it is certainly 
 not only belittling to the supreme court, but it is 
 also unjust oppression of poor litigants ; it causes 
 needless expense to the people, and it can only tend 
 to bring the administration of justice into public con- 
 tempt and ridicule. 
 
 10. APPEALS FROM APPELLATE COURTS. 
 
 The allowance of appeals from and writs of error 
 to the appellate courts should be regulated by a 
 statute substantially as follows : 
 
 An act in regard to appeals from and writs of error to 
 appellate courts. 
 
 § 1. Be it enacted by the people of the State of Illinois repre- 
 sented in the General Assembly, That appeals from the appel- 
 late courts to the supreme court, and -writs of error from the 
 supreme court to the appellate courts, shall be allowed for the 
 review by the supreme court of all final orders, judgments and 
 decrees of the appellate courts, excepting in cases involving 
 money only, where the sum in controversy does not exceed one 
 thousand dollars ($1,000), exclusive of costs, and excepting 
 also actions of replevin, wherein the value of the property re- 
 plevied does not exceed one thousand dollars ($1,000). 
 
 §2. Every order, judgment or decree which finally dis- 
 poses of an appeal or writ of error, either by the affirmance of 
 
APPEALS FROM APPELLATE COURTS. 559 
 
 the order, judgment or decree of the trial court, or by the dis- 
 missal of the appeal or writ of error, or by the reversal of the 
 order, judgment or decree of the trial court, either with or 
 without a remanding of the cause, or in any other manner, 
 shall be deemed and taken as a final order, judgment or decree 
 within the meaning of this act. 
 
 § 3. A majority of the judges of an appellate court may, in 
 their discretion, by an order in writing signed by them and filed 
 in said court, allow an appeal to the supreme court from any 
 final order, judgment or decree of the appellate court in any 
 case, falling within the exceptions named in section one (1) of 
 this act; 
 
 §4. An appeal may be prayed for at any time within twen- 
 ty (20) days after the rendition of the order, judgment or 
 decree appealed from, whether such appellate court be in 
 session or not ; and if said appeal be prayed for in vacation, 
 any one or more of the judges of said appellate court may make 
 and sign all orders necessary for the perfecting of such appeal, 
 and the clerk shall enter up such orders as part of the record 
 in the cause. 
 
 § 5. The court, judge or judges allowing any appeal, shall 
 require the party praying such appeal to give an appeal bond 
 in such reasonable amount and with such conditions and such 
 security, as such court, judge or judges may deem proper. 
 
 § 6. The supreme court shall re-examine cases brought to it 
 from the appellate courts, by appeal or writ of error, as to ques- 
 tions of law only, excepting actions at law in which the orders 
 or judgments of the trial courts are reversed by the appellate 
 courts, and excepting also in chancery cases, in which actions 
 at law and chancery cases the supreme court shall re-examine 
 all questions that were subject to examination by said appellate 
 courts. 
 
 The purpose of the proposed act is to remedy the 
 evils heretofore discussed, by allowing appeals in 
 actions ex delicto, where the plaintiff is defeated in the 
 trial and appellate courts, and also in cases where 
 judgments are reversed as well as where they are 
 affirmed. The last section is framed upon the theory 
 
560 REMEDIES. 
 
 that the judgments of the trial courts should, be 
 affirmed rather than reversed, and that where the 
 appellate court differ in opinion from the trial court, 
 the supreme court should be required to review all 
 qnestions presented by the record. In this respect, it 
 is exactly the opposite of the present law, which, as 
 has been heretofore shown, is framed with a view to 
 securing the reversal of as many, and the affirmance of 
 as few judgments of trial courts as possible, especially 
 where the judgments are against the defendants. 
 
 11. COMPARATIVE NEGLIGENCE. 
 
 That there should be some legislation upon the sub- 
 ject of comparative negligence is self-evident, but as 
 to what that legislation should be, there will, no doubt, 
 be a wide difference of opinion among the members of 
 the profession. Some will insist that the doctrine 
 should be abolished, while others will contend for its 
 preservation. Under these circumstances, the best way 
 to settle the question would be for the two parties to 
 enter into a compromise, and secure the passage of a 
 statute, substantially as follows : 
 
 An act in regard to Comparative Negligence. 
 
 § 1. Be it enacted by the People of the State of Illinois, rep- 
 resented in the General Assembly, That hereafter no judgment 
 shall be reversed on the ground that any trial judge has stated, 
 refused to state, or incorrectly stated to the jury the doctrine of 
 comparative negligence. 
 
 As has been heretofore shown (ante, p. 101), Mr. 
 Justice Breese, in delivering the opinion of the court, 
 in Western Union Tel. Co. v. Quinn, 56 111. 320, says : 
 
 " The doctrine of comparative negligence is the doctrine of 
 this court, and is now well understood." 
 
 It being well understood, there can no longer be 
 any necessity for its agitation in the appellate and 
 supreme courts. The proposed statute would commit 
 
TECHNICALITIES. 561 
 
 the question wholly to the discretion of the trial judge, 
 who would be left entirely free to state it to the .jury' 
 or not, as he might see fit, and if, in his judgment,' 
 justice required that it should be stated to the jury, he 
 could adopt that style of expressing it, that would be 
 most suited to his own peculiar taste, or best calculated 
 to enlighten the jury in the particular case in wbich 
 the question might arise. With such a statute, we 
 could well say of this celebrated doctrine, requiescat in 
 pace. 
 
 12. THE ABANDONMENT OP TECHNICALITIES. 
 
 The best remedy, however, for existing evils is the 
 abandonment, by the courts, of technicalities, and an 
 endeavor on their part to do substantial justice in all 
 cases. It is especially important that the judges of 
 the higher courts should realize the necessity of a 
 radical change in their methods of deciding contro- 
 versies. Having, for the past fifteen years, been 
 successfully engaged in protecting railroad companies 
 against widows and orphans and other poor litigants, 
 the judges should direct their energies to protecting 
 the latter against the former. In T., W. & W. R. R. Co. 
 v. Harmon, 47 111. 304, Mr. Justice Walker, in deliver- 
 ing the opinion of the court, very aptly says : 
 
 " The great object of government is to afford protection to 
 the life, liberty and property of the citizen, and in the pursuit 
 of that object all interests should be protected, and no one 
 branch of business or interest be permitted to injure or destroy 
 others. Although not equally beneficial to community, the least 
 productive interest or pursuit is nevertheless important as con- 
 tributing to the prosperity of the whole community. And to 
 the person engaged.in such a pursuit, it is as important as the 
 vast enterprises of the more favored of his fellow-citizens are 
 to them, and he is, under the law, entitled to an equal degree of 
 protection in its pursuit and enjoyment. And the purpose of 
 creating government would be perverted, if the great and profi- 
 
562 REMEDIES. 
 
 table pursuits were permitted to disregard and trample upon 
 the mpre humble and less lucrative occupations and callings. 
 And however important and even essential, these great creations 
 of modern civilization and enterprise may be to society, they 
 must be required to regard the rights of others, to the same ex- 
 tent that individuals are held to avoid injury and wrong to 
 them and to each other." 
 
 The sentiments thus expressed all will approve, 
 and the necessity of their application in courts of jus- 
 tice will be fully appreciated by those who are familiar 
 with the opinions of the supreme court in railroad 
 cases. The doctrine of contributory negligence, as 
 applied by the court in actions against railway com- 
 panies, in effect relieves these corporations of the 
 necessity of exercising that degree of care to avoid 
 injury to others, which is essential to the safety of the 
 public, and it, as well as other rules hereinbefore dis- 
 cussed, should be modified. If it be said that the maxim, 
 stare decisis, forbids any change of existing rules, the 
 answer of the court should be that given in the Mid- 
 dlesworth Case, {ante, p. 279), where, with reference to 
 previous cases, it is said : 
 
 " Much reflection has satisfied us the doctrine of these cases 
 is liable to severe and jnst criticism, and is not in harmony with 
 that great maxim of the common law, so long reverenced, and 
 so consonant with the instincts of our nature, and that is, ' So use 
 your own property and exercise your rights as not to inflict injury 
 upon another.' The idea is not tolerable, that an injury may be 
 inflicted which, by ordinary care and diligence could have been 
 avoided." 
 
 Certainly, judges who can so easily overrule a large 
 number of their prior decisions, in order to permit a 
 plaintiff to recover damages for the killing of his 
 mules, will never say the doctrine of stare decisis stands 
 in the way of a mitigation of the rule of contributory 
 
TECHNICALITIES. 563 
 
 negligence, in favor of a plaintiff who has suffered a 
 personal injury. 
 
 The truth is, the relative rights of individuals and 
 railway corporations, so far as actions for personal in- 
 juries are concerned, are, for the most part, whatever 
 the supreme court may choose to declare them, and 
 if, in such actions, injustice is done to individual liti- 
 gants, if the machinery of the law is perverted to the 
 oppression of those whom it ought to protect, the re- 
 sponsibility therefore must rest upon the supreme 
 court. Railway corporations, like all other litigants, 
 are entitled to protection, but they are not entitled to 
 the aid of the courts, in their attempts to override and 
 oppress the people. They have no right to expect 
 that, for the purpose of relieving them against the 
 verdicts of juries, the courts shall lay down and apply 
 rules, which they refuse to apply to protect the indi- 
 vidual citizen, when on trial for his life or his liberty; 
 and judges, who reverse judgments for money against 
 railway corporations, in suits for negligently causing 
 death, for errors or supposed errors of law, which the 
 same judges would not deem of sufficient importance 
 to secure new trials to individual citizens, convicted of 
 murder and sentenced to be hanged, need not expect, 
 either from the bar or from the people, that full and 
 complete confidence that is essential to a successful 
 administration of justice. Especially will this be true 
 so long as railway companies continue to give, and 
 judges to receive, free passes, which, however they 
 may be viewed by those who present or those who ac- 
 cept them, will always be called, by common people, 
 "by their Christian name, bribes." 
 
INDEX. 
 
 ABILITY. 
 
 To carry on one's occupation, impaired by loss of arm. .. 472 
 
 ADMINISTRATION OF JUSTICE. 
 
 Intended to be practicable 46 
 
 Machinery of, defective , 86 
 
 How brought into disrepute 388, 448 
 
 Might be worse than it is 90 
 
 ANIMAL. 
 
 Damages for injury to, compared with those for injury 
 
 to person 202 
 
 Liability of defendant for injury to, as compared with 
 
 liability for injury to children 280 
 
 APPEALS. 
 
 Results of, in railroad cases 5 to 9 
 
 From appellate to supreme court, when allowed 454, 459 
 
 Should be allowed from judgments of appellate court 
 reversing and remanding 473 
 
 APPELLATE COURTS. 
 
 Creation of, authorized by constitution 449 
 
 Judges of , how assigned 450 
 
 How judges of, should be assigned 450 to 452 
 
 Duties of, less difficult than those of circuit courts 451 
 
 Appeals from, to supreme court, when allowed 454, 459 
 
 Whether opinions of, should be in writing 485 
 
 Terms of . 487 
 
 Power of, to substitute their own finding of facts for. 
 
 that of jury 290 
 
 Finding of facts by, when sufficient 295 
 
 Effect of power conferred upon, to reverse finding of 
 
 jury and enter contrary finding 301 
 
 Should not be permitted to review the facts 329 
 
 565 
 
566 INDEX. 
 
 ARMS. 
 
 Useful in all and indispensable in most of the avocations 
 
 of life — - 472 
 
 AVARICE. 
 
 Is the mother of bribe-taking 504 
 
 BACON, LORD. 
 
 Saying of, as to innovations 449 
 
 Saying of, as to injustice and delays 208 
 
 Views of, as to corruption 491 
 
 BISMARCK. 
 
 Views of, as to improper use, by public officials, of free- 
 passes 500 
 
 BRAKEMAN. 
 
 Duty of, before attempting to uncouple car 39 
 
 Difference between care by, exercised before, and that 
 
 exercised while attempting to uncouple cars 40 
 
 Eighteen thousand dollars awarded to, for loss of both 
 
 legs, excessive £ 222 
 
 BRIBERY. 
 
 By railway passes 489 to 506 
 
 BURDEN OF PROOF. 
 
 As to contributory negligence is upon plaintiff, when.. 
 
 150 to 155 
 As to contributory negligence is upon the defendant, 
 
 when - 157 
 
 Should be upon defendant in all cases - 358 
 
 Should be regulated by statute , 522, 526 
 
 CALIFORNIA. 
 
 Statute of , regulating damages for causing death 209 
 
 CAMBYSES. 
 
 Punishment inflicted by, upon bribe-taking judge 504 
 
 CHARGE. 
 
 Oral, sufficient if general scope and tendency be correct. 276 
 
 CHARITY. 
 
 Railroad companies incapable of 494 
 
 CHILDREN. 
 
 Rights of, as against railroad company, compared with 
 those of owner of mules 280 to 281 
 
INDEX. 567 
 
 CHILDREN— Continued. 
 
 Doctrine of contributory negligence should not be ap- 
 plied to .... 526 
 
 CIRCUIT COURTS. 
 
 Necessity of remedies for defects in organization of 10 
 
 CIRCUIT JUDGE. • 
 
 Entitled to respectful treatment from reviewing court. 283 
 
 Should be presumed to be honest and capable 47 
 
 Alleged dishonesty of, in regard to bills of exceptions.. 333 
 
 COKE, LORD. 
 
 Observations of, to the student 149 
 
 Saying of , as to the radius divini luminis 5 
 
 COMPARATIVE NEGLIGENCE. 
 
 Doctrine of, as announced in Jacobs Case 96 
 
 Cases announcing rule of, classified 96 
 
 Cases of First Class announcing rule of 96 to 106 
 
 Plaintiff must be, as compared to negligence of de- 
 fendant, so much less culpable as to incline bal- 
 ance in his favor 97 
 
 Negligence of defendant must be more gross 97 
 
 Defendant must be guilty of higher degree of negli- 
 gence, amounting to willful injury 98 
 
 Negligence of defendant must be of far greater de- 
 gree than that of plaintiff 98 
 
 Defendant's negligence must be greatly in excess.. 98 
 Defendant must be guilty of misconduct still more 
 
 gross and willful 99 
 
 Negligence of defendant must be of a higher degree. 100 
 Defendant must be guilty of willful injury, or of a 
 higher degree of negligence or recklessness, com- 
 pared with which the blame of plaintiff is slight 
 
 or trivial 102 
 
 Negligence of defendant must be so much greater as 
 
 to clearly preponderate 101 
 
 Negligence of plaintiff must be far less in degree 
 
 than that of defendant 101 
 
 Doctrine of, now well understood 101 
 
 Cases of the First Class followed by the circuit courts. . 102 
 of the First Class overruled 104 to 106 
 
568 INDEX. 
 
 COMPAEATIVE NEGLIGENCE— Continued. 
 
 Negligence of defendant must clearly and largely 
 
 exceed that of plaintiff 104 
 
 Not sufficient that negligence of defendant clearly 
 
 outweighs that of plaintiff 105 
 
 Greater or higher degree of negligence does not make 
 
 defendant liable 103 
 
 Never was the law plaintiff could recover because de- 
 fendant guilty of greater negligence 16 
 
 Cases of Second Class anouncing rule of 107 to 109 
 
 Recovery allowed if plaintiff's negligence slight as 
 
 compared with that of defendant 107, 108, 109 
 
 Cases of Second Class followed by the circuit courts 109 
 
 Cases of Second Class overruled 109 to 111 
 
 Cases of Third Class announcing rule of 112, 113 
 
 Negligence of plaintiff must be slight and that of 
 defendant gross in comparison with each other. 
 
 112 to 114 
 
 Miscellaneous Cases announcing rule of 114 to 115 
 
 Recovery allowed when defendant's negligence con- 
 siderable and plaintiff's little 114 
 
 Negligence of defendant must be great and that of 
 
 ' plaintiff slight, when compared 115 
 
 Negligence of defendant must be gross and that of 
 
 plaintiff slight ,. 115 
 
 Cases of Fourth Class announcing the rule of. .116 to 119 
 Doctrine adopted to mitigate, in favor of plaintiff, 
 
 the rule of contributory negligence 116 to 119 
 
 In statements of doctrine of, the terms "slight" and 
 
 "gross" are used in their legal sense 123 
 
 In statements of doctrine of, the terms "slight" and 
 
 "gross" are used in their popular sense 126 
 
 Of the doctrine of, the comparison is the essence.. 141, 468 
 Comparison cannot change relative degrees of negligence 
 
 of plaintiff and defendant 124 
 
 Doctrine of, does not allow recovery when plaintiff has 
 failed to exercise ordinary care 121 to 125 
 
index. 569 
 
 COMPARATIVE NEGLIGENCE— Continued. 
 
 Doctrine of, allows recovery when plaintiff has failed to 
 exercise ordinary care, if his negligence is slight and 
 that of the defendant gross in comparison with each 
 other 129 to 135 
 
 Difficulties presented to circuit judge in application of 
 doctrine of 30 
 
 Rule of, must be submitted to jury when evidence tends 
 to show negligence on part of plaintiff or person 
 injured 23 
 
 Rule of, must not be submitted to jury when evidence 
 does not tend to show gross negligence on part of 
 defendant 28 
 
 Quaere as to application of rule of, in case where evi- 
 dence tends to show negligence on part of plaintiff 
 but not gross negligence on part of defendant 31 
 
 When rule of, must be set forth in plaintiff's declaration 181 
 
 Is a question of fact 171 
 
 Rule of, as applied to parents in actions for injuries to 
 children 256 to 264 
 
 Rule of, as applied to children under ten years of age._ 
 
 264 to 273 
 
 Rule of , must be stated in every instruction 268 
 
 Rule of, as understood and applied by Appellate Court of 
 First District .139 to 142, 394 to 399 
 
 Effect of study of doctrine of, upon student 149 
 
 Bequiescat in pace 561 
 
 CONSISTENCY. 
 
 Of judges .- 314 
 
 CONSTITUTION. 
 
 May be violated if justice is done thereby '. 303 
 
 Provisions of , regulating trial by jury 249 
 
 Provisions of , authorizing appellate courts 449 
 
 CONSTITUTIONAL LAW. 
 
 Violation of right of party to secure justice freely and 
 without being obliged to purchase it, completely and 
 without denial, promptly and without delay.. 87 to 90 
 As to statute requiring judge to instruct jury in writing 
 
 338 to 344 
 
570 INDEX. 
 
 CONSTITUTIONAL LAW— Continued. 
 
 As to statute requiring judges of supreme court to de- 
 cide cases at term when heard 343 
 
 Judges of supreme court cannot be compelled to write 
 opinions 338 
 
 Duty of courts discharged by rendition of decisions 338 
 
 As to acceptance by judges of supreme and circuit courts 
 of free passes ^ 500 
 
 Law requiring payment of taxes before tax deed can 
 be questioned invalid 510 
 
 Quaere as statute regulating payment of costs in appel- 
 late and supreme courts ■_„_.._,._-...,.. . 511 
 
 Whether law authorizing appellate court to reverse ver- 
 dict of jury, and enter finding of facts is valid 290 to 302 
 
 CONTRIBUTORY NEGLIGENCE. 
 
 Doctrine of, stated 92 to 93 
 
 Will bar recovery when 92, 94 
 
 Must, to defeat action, be proximate cause of injury. _ 92 
 Right of plaintiff to recover "not affected by, unless he 
 
 has been in fault . . ... 92 
 
 Of plaintiff, to defeat action, must at least be ordinary 
 
 negligence 93 
 
 Will not defeat action, when defendant, after notice of 
 
 plaintiff's danger, fails to use ordinary care to avoid 
 
 inflicting injury . 93, 378, 541 
 
 Rule of, as affected by the Johnson Case 139 
 
 Burden of proof with respect to, is upon the plaintiff, 
 
 when.: 94, 151 to 155 
 
 When burden of proof with respect to, is upon the de- 
 fendant ■ 155 to 158 
 
 Whether burden of proof with respect to, should be 
 
 upon plaintiff or upon defendant.. 150, 159, 522 to 527 
 Doctrine of, as applied in actions brought by parents for 
 
 injuries to children 256 to 264 
 
 Doetrine of, as applied to children under ten years of 
 
 age , . 264, 270 
 
 Whether doctrine of, should be applied to children under 
 
 ten years of age 268 to 270, 272 to 278 
 
INDEX. 571 
 
 CONTRIBUTORY NEGLIGENCE— Continued. 
 
 Doctrine of, as applied to a plaintiff suing for injuries to 
 mules 278 
 
 Whether rule of , based upon sound reasons 523 
 
 Rule of, should be mitigated 5 
 
 Mitigation of rule of, not hindered by doctrine of stare 
 decisis 5 
 
 COSTS. 
 
 Plaintiffs in railroad cases oppressed by . 89 
 
 Should be paid by unsuccessful party 510 
 
 In appellate and supreme courts, law with respect to, 
 
 unjust .^-.-~- -- „„_ „ 510 
 
 Whether law with respect to, in violation of constitution 510 
 Proposed change of law in relation to. ,. 513 
 
 COUNSEL. 
 
 Have been misled by opinions of the supreme court .. 170 
 
 Should not be lulled into security by opinions of su- 
 preme court.. ....._-- 237 
 
 Should not encumber good cause with multitude of in- 
 structions .. 390 
 
 For railroad companies encumber bad cause with mul- 
 titude of instructions 391 
 
 COURT OP ERRORS AND APPEALS. 
 
 Probable results of establishment of 90 to 91 
 
 COURTS. 
 
 Are created and established for the administration of 
 
 justice -„ , 335 
 
 Cannot be required to file written opinions - 338 
 
 How far subject to control by legislature __„_ 338 to 343 
 
 Confidence of people in, undermined by acceptance by 
 
 judges of free passes „. 489 
 
 CRIMINAL CASES. 
 
 .Proportion of reversals to affirmances of judgments in, 
 
 by supreme court . _ 9 
 
 Instructions in, sufficient if substantially correct when 
 
 construed as a whole-.-. 380 to 388 
 
 Indictments in, sufficient if hi language of statute -. 
 
 369 to 373 
 Instructions in, sufficient if in language of statute 385 
 
572 INDEX. 
 
 CRIMINAL CASES— Continued. 
 
 Rulings of supreme court in, compared with those in 
 railroad cases ...369 to 373, 380 to 388 
 
 CRIMINAL CODE. 
 
 Would be rendered inoperative by reversals for trivial 
 
 errors 384 
 
 Administration of, as compared with that of railroad 
 
 code ___.373, 389, 390 
 
 CRITICISM OF COURTS. 
 
 Effect of , upon influence of attorney 484 
 
 CROSS EXAMINATION. 
 
 Great latitude should be allowed in 387 
 
 Refusal to permit, in criminal cases, for purpose of im- 
 peachment, erroneous, but not ground for reversal.. 387 
 
 DAMAGES. 
 
 Proper elements to be considered in determining amount 
 
 of 193 
 
 Punitive, may be allowed for willful and wanton injury 227 
 
 For injury to professional man 195, 202 
 
 Difference between injury to professional, and one to 
 non-professional man with respect to amount of 
 
 195, 203 
 For injury to lawyer in vacation less than for one in- 
 flicted in term time 203 
 
 To brakeman for loss of both legs should only be suffi- 
 cient to produce income equal to that earned prior to 
 
 injury 220 
 
 Amount of, in actions for personal injuries as affected 
 by statute limiting damages for injury resulting in 
 
 death • 200, 205, 206 
 
 For causing death by wrongful act, neglect or default 
 
 should be unlimited 205, 517 
 
 Allowance of, in such actions not contrary to sound 
 
 public policy 517 
 
 Whether exemplary, should be allowed in such actions 519 
 
 Wealth or poverty of deceased important elements 212 
 
 To ascertain amount of, proof of earnings of deceased 
 essential 213 
 
INDEX. 573 
 
 DAMAGES— Continued. 
 
 To assessment of, proof of actual services of deceased 
 not indispensable 469 
 
 Instruction and moral training of children proper ele- 
 ments 230 
 
 Pecuniary condition of widow and children proper to be 
 considered by jury in assessing 230, 240 
 
 Pecuniary condition of widow and children not proper 
 to be considered by jury in assessing 241 
 
 Whether evidence of pecuniary condition of widow and 
 children should be considered in assessing 245 
 
 Pecuniary circumstances of collateral relatives proper 
 elements of 242 
 
 Deformity of hand of widow of deceased should be dis- 
 regarded by jury in assessing 359 
 
 Grief, sorrow and mental affliction of widow and chil- 
 dren should not enhance 359 
 
 For killing boy between six and seven years of age 225 
 
 Should be allowed for permanent injury 467 
 
 When award of, by jury deemed excessive 190 
 
 Question as to amount of, should be lef b wholly to trial 
 judge and jury 519 
 
 Importance of evidence and instructions as to measure 
 of, greatly overestimated 521 
 
 Instructions as to, should be precise and accurate 23 
 
 DECLARATION. 
 
 Not sufficient when stating cause of action in language 
 
 of statute 371 
 
 Must present question of comparative negligence, when 181 
 
 Proofs must correspond to allegations of 409 
 
 In action for negligence must aver due care on part of 
 
 plaintiff 161, 162 
 
 In action for negligence need not aver due care on part 
 
 of plaintiff — - 161, 162, 163 
 
 DELAYS. . , . .. 
 
 To plaintiff's in actions against railroad companies 90 
 
 Result of, in actions for causing death 208 
 
 Saying of Lord Bacon with respect to 208 
 
574 INDEX. 
 
 » 
 
 DILIGENCE. 
 
 Is synonymous with care ,. „„ 123 
 
 Degrees of , 123 
 
 DEMURRER TO EVIDENCE. 
 
 What is and what is not admitted by 305 
 
 Superseded by motion to exclude evidence 305 
 
 DISCORDANT PROPOSITIONS. 
 
 Attempts to connect, always tend to confusion 123, 417 
 
 DISREPUTE. 
 
 Courts may be brought into, how 47, 283, 388, 558 
 
 ENGINEERS. 
 
 Sometimes asleep when on duty 253 
 
 Testimony of, how viewed by supreme court 321 
 
 Testimony of , how viewed by juries 323 
 
 ERRORS OF LAW. 
 
 No ground for reversal when verdict right 233 
 
 Effect of, upon judgment in favor of railroad company 
 as compared with effect upon judgment in favor of 
 
 individual 238 
 
 Appellate and supreme courts should be restricted to 
 consideration of 318 to 332 
 
 ESTOPPEL. 
 
 Doctrines of, should be applied to transactions in the 
 court room „ „__ 422 
 
 EVIDENCE. 
 
 Of habits of deceased person as to care, prudence and 
 
 sobriety, admissible when 33 
 
 Of earnings of deceased essential to assessment of dam- 
 ages 213 
 
 Of actual services of deceased not indispensable to assess- 
 ment of damages „ 469 
 
 Of poverty of family of deceased not admissible.. 125, 239 
 
 Of poverty of mother of deceased person admissible 239 
 
 Of pecuniary circumstances of widow and children ad- 
 missible 230, 240 
 
 Of pecuniary circumstances of plaintiff inadmissible.. 244 
 Of witness as to speed of train admissible, though wit- 
 ness not an expert 125 
 
INDEX. 575 
 
 EVIDENCE— Continued. 
 
 Of witness as to what is safe distance to retire from 
 
 track when trains are passing, inadmissible 51, 65 
 
 Eules of, are but the product of human experience and 
 
 common sense ^ 470 
 
 Does not tend to prove permanent injury, when 467 
 
 Of loss of arm sufficient to prove pain and impairment 
 
 of ability to carry on one's occupation 470 
 
 Nature of motions to exclude 307 
 
 Should not be embodied at large in bill of exceptions.. 330 
 
 Must correspond to allegations of declaration 409 
 
 Views of juries and judges as to, compared 320 to 329 
 
 EXCESSIVE DAMAGES. 
 
 General rules in regard to 190, 191, 192 
 
 $11,000 for shortening lawyer's leg only an inch 
 
 196, 201, 226 
 $5,27,5 for cutting off toes from foot of farmer.. ..197, 226 
 
 $5,000 for killing common laboring man 213, 226 
 
 $10,000 for cutting brakeman's arm off 217 
 
 $25,000 for serious and permanent injury crippling party 
 
 for life and involving large expenditures of money. 219 
 $18,000 for cutting brakeman's legs off 220 
 
 EXPERTS. 
 
 Not necessary to prove speed of train 125 
 
 Not necessary to prove value of cow 401 
 
 FACTS. 
 
 Capacity of judges and jurors for properly determining, 
 
 compared „ ...320 to 329 
 
 Appellate and supreme courts should not review find- 
 ings of jury as to „ 514 
 
 Proposed law to limit power of appellate and supreme 
 courts to review findings of ,_,„„ 514 
 
 FELLOW SERVANTS. 
 
 Are those directly co-operating in the particular work 
 they are about, or usually consociated in their ordi- 
 nary duties 50 
 
 Definition of, a question of law, but whether a particu- 
 lar case falls within the definition is a question of 
 fact 50, 173 
 
576 INDEX. 
 
 FELLOW-SERVANTS— Continued. 
 
 Who are not __ 59 to 61 
 
 The reason for the rule of 62 
 
 Brakeman and engineer are 53 
 
 So an engineer in employ of lessor railroad company 
 
 and conductor of train of lessee company 57 
 
 Legislation with respect to, urgently demanded 529 
 
 How jury must be instructed as to doctrine of 530 
 
 Unsatisfactory character of definition 530 
 
 Disagreement of judges as to application of doctrine of 535 
 Hair-splitting distinctions indulged in by judges with 
 
 respect to rule of 1 536 
 
 Power of one to direct and control others not of itself 
 
 sufficient to make master liable 533 
 
 Because one labors with another, not conclusive of non- 
 liability of master 533 
 
 Conductor of wrecking train and one of party of wreck- 
 ers 539 
 
 What will constitute 540 
 
 Doctrine of, not applicable, when 544 
 
 Whether conductor and other employees of train are.. 544 
 Doctrine of, founded upon unsound reasons and should 
 
 be abolished 546 to 550 
 
 FENCES. 
 
 Liability of railroad company for failure to build 157 
 
 FREE PASSES. 
 
 Complaints against, come from non-passholders 490 
 
 For what purpose given 494 
 
 Effectof, upon their recipients 495 
 
 Given to judges only when they are in office 497 
 
 Acceptance of, by supreme and circuit judges, forbidden 
 
 by the constitution 500 
 
 Effect upon the public of acceptance of, by judges 502 
 
 Giving of, by railway companies should be prohibited by 
 
 law 507 
 
 GRAMMAR. 
 
 Questions of, should not be discussed by supreme court 25 
 
index. 577 
 
 HELL. 
 
 The right way to, for a judge, according to father Lat- 
 imer " 504 
 
 HYPERCRITICISM. 
 
 First class specimen of judicial ___394 to 397 
 
 Eesults to be expected from continued cultivation of 
 art of , 401 
 
 IMMORAL ACTION. 
 
 Not excusable because indulged in by many 491 
 
 IMPUTED NEGLIGENCE. 
 
 Doctrine of, repudiated in Connecticut, Ohio, Pennsyl- 
 vania and Vermont . 273 
 
 INCLINATION. 
 
 Judges may decide according to, but jurors not 357 
 
 INDICTMENT. 
 
 Sufficient if it charges offense in language of statute.. 
 
 369 to 372 
 For selling liquor to minor need not aver scienter 369 to 371 
 
 INDIVIDUALS AND CORPORATIONS. 
 
 Respective standing of, in the courts 459 
 
 INFANT. 
 
 Doctrine of contributory negligence as applied to 
 
 264 to 278 
 Rulings of supreme court in actions for injuries to, 
 compared with those in actions for injuring mules 
 
 278 to 281 
 Doctrine of contributory negligence should not be ap- 
 plied to 526 
 
 INFLUENCE OF ATTORNEYS. 
 
 Whether decisions of supreme court dependent upon 484 
 
 How impaired 484 
 
 INSTRUCTION AND MORAL TRAINING. 
 
 Of children, proper elements of damages in actions for 
 causing death, but capacity of parent to impart must 
 be proven • 230 
 
 INTEREST. 
 
 Not allowed upon amount of damages until final judg- 
 ment 207 
 
 . .Computations of, illustrating prejudice of judge. T ._... 211 
 
 37 
 
578 INDEX. 
 
 INSTRUCTIONS. 
 
 Origin of practice of giving, in writing 333 
 
 May be modified by the judge 334 
 
 May be given by the court sua sponte 334, 335 
 
 Oral qualifications of written, inadmissible , 335 
 
 Must be marked refused or given , 336 
 
 When modified, should not be endorsed with " Qualifica- 
 tion by the court" 337 
 
 Neglect of court to mark "given" or "refused" no 
 
 ground for reversal 337 
 
 Should require finding of jury to be founded upon the 
 
 evidence 344, 479 
 
 Sufficient if phrase " from the evidence '' is in first part, 
 
 middle or last sentence 346 to 348 
 
 May direct verdict for plaintiff, if evidence creates prob- 
 abilities in his favor, and weight of evidence inclines 
 
 to his side 348 to 349 
 
 Should not permit jury to speculate on probabilities, but 
 should require them to be satisfied by the greater 
 
 weight of evidence 350 to 352 
 
 Should only require jury to believe, not to be satisfied, 
 
 from evidence 352 to 355 
 
 Should not permit jury to decide case from inclination. 356 
 
 May argue case for defendant, but not for plaintiff 358 
 
 Should not direct jury to disregard effect verdict for 
 
 plaintiff might have upon defendant 360 
 
 Must be correct in themselves without reference to others 360 
 
 Not sufficient, though in language of statute 364, 403 
 
 Reversal for, when in language of statute, would be 
 
 unheard of 373, 403 
 
 May be held erroneous, though in exact language of 
 
 others declared correct by supreme court 374 to 375 
 
 Though erroneous, may be shown by special verdict to 
 
 have done no harm 377 
 
 ' Sufficient, if correct as a series 380 to 3S9 
 
 Rulings of supreme court with reference to, in railroad 
 
 and criminal cases, compared 389 to 390 
 
 Jury presumed to base verdict on all, and not a portion, 
 in criminal cases 380 
 
INDEX. 579 
 
 INSTRUCTIONS— Continued. 
 
 May destroy effect of statement of state's attorney of 
 
 belief of guilt of defendant 383 
 
 Will not cure error in admission of evidence as to liabil- 
 ity of railroad company 383 
 
 Sufficient in criminal case if in language of statute 385 
 
 Good cause should not be encumbered by multitude of. 390 
 
 When too numerous 391 to 392 
 
 How to avoid giving 393 
 
 Should not send jury out into broad field of conjecture. 402 
 
 Should be concise 402 
 
 Need not present all the law governing the case 402 
 
 Must not be doubtful or of uncertain meaning 403 
 
 Should not single out portion of facts 403 
 
 When may be copied from opinion of supreme court, 
 
 and when not 404 
 
 Must submit question of comparative negligence, when, 
 and when not 405 
 
 Should state how presumption of negligence may be 
 
 overcome 405 
 
 Should not ignore question of contributory negligence. 479 
 May direct verdict for defendant when, and when not. 406 
 Should not indicate opinion of judge as to weight of 
 
 evidence, except when conclusive 406 
 
 Should not submit to jury construction of contract 407 
 
 May refer to indictment for description of offense 407 
 
 How framed when defining measure of damages 408 
 
 Of plaintiff need not exclude every possible defense 408 
 
 Should limit recovery to negligence charged in declara- 
 tion 409 
 
 To disregard evidence cure errors in admission thereof, 
 
 sometimes and sometimes not 410 
 
 Whether errors in admission of evidence should be^ured 
 
 by, in all cases 412, 413 
 
 Need not be repeated 413 
 
 Should not be misleading 414 
 
 Should not direct verdict for plaintiff, unless substantial 
 is justice done thereby - 414 
 
580 INDEX. 
 
 INSTRUCTIONS— Continued. 
 
 Presumed to be understood by jury as they commonly 
 impress the mind 415 
 
 No error in refusing or giving, when containing mere 
 
 abstract propositions of law 416 
 
 Should not assume existence of facts not proven 416 
 
 Connecting discordant propositions always tends to con- 
 fusion 417 
 
 Should not be involved 417 
 
 To harmonize before giving to jury, is only safe rule for 
 
 circuit court 417 
 
 Errors in, will not cause reversal when justice has been 
 
 done . 458 
 
 Using the term "proper care" 460 to 465 
 
 Inartificially drawn, yet correct in substance, good 13 
 
 Objection to, that "fault" is used where "ordinary 
 
 care " should have been, is very technical 13 
 
 Modification of erroneous, not error 46 
 
 Not expected to be precisely accurate in every particular, 
 
 but sufficient if substantially so 46 
 
 Should not be flatly contradictory 34 
 
 Should not be loosely drawn 34 
 
 Exceptions to, prior to 1874, required to be taken at 
 
 time of giving or refusing 419 
 
 Evils of present system regulating, and remedy there- 
 for 420 to 431 
 
 Oral and written, specimens of, compared 431 to 448 
 
 Proposed change of law to regulate 514 
 
 JUDGES. 
 
 Integrity the portion and proper virtue of 491 
 
 A little wiser, but no better than a great many other 
 
 people : 495 
 
 Rulesjaid down by, as necessary to be applied to jurors. 496 
 
 Should be free from undue influences 496 
 
 How stultified 498 
 
 Whether use by, of free passes proper, because done 
 
 upon public business 499 
 
 Cannot show they are not influenced by free passes 502 
 
 Must be taught what 506 
 
INDEX. 581 
 
 JUDGES— Continued. 
 
 Are free from passion and prejudice _. 256 
 
 And jurors compared 320 to 329 
 
 JUDICIAL FRAUD. 
 
 Statute for prevention of 333 
 
 JUDICIAL OFFICE. 
 
 Certain powers inherent in.l 340 
 
 JUDICIARY DEPARTMENT. 
 
 How far subject to legislative control 338 
 
 JURORS. 
 
 Influenced by popular prejudice against railway corpo- 
 rations 253 
 
 Unjust reflections upon 282 
 
 Entitled to respectful treatment 282 
 
 Errors of, as to the facts, less than those of judges as to 
 
 the law. 282 
 
 Why prejudiced against railway corporations 317 
 
 Compared with judges 320 to 329 
 
 Judges of credibility of witnesses 320 
 
 Should not be treated, fed, or entertained by litigants 496 
 Rules governing conduct of, as stated by Lord Coke 496 
 
 JURY. 
 
 Verdict of, when actuated by passion and prejudice 
 
 should be set aside 14 
 
 Outrageous verdict of, sanctified by a remittiter 14 
 
 Supreme court will not set aside third verdict of, unless 
 
 for want of evidence or its manifest insufficiency 18 
 
 Third verdict of, for same party, not lightly disturbed. . 18 
 
 Facts are questions for 13 
 
 Verdict of, not disturbed unless manifestly against weight. 
 
 of evidence 13 
 
 Ought to be most accurately instructed 265 to 266, 347, 348 
 Power of supreme court to set aside third verdict of. . 285 
 Evidence cannot be excluded from, when it tends to 
 
 prove the issues 302 to 304 
 
 Evidence may be excluded from, when insufficient to 
 
 support verdict 305 to 307 
 
 Findings of, as to the facts should not be reviewed by 
 
 appellate and supreme courts 318 to 329, 514 to 515 
 
582 INDEX. 
 
 JUSTICE. 
 
 Place of, is a hallowed place 491 
 
 Cannot yield her fruit with sweetness among the hriars 
 
 and brambles of catching and polling clerks and 
 
 ministers 491 
 
 Courts are created and established for the administration 
 
 of 335 
 
 Not obtained freely and without purchase, completely 
 
 and without denial, promptly, and without delay — 
 
 87 to 90 
 
 LANDMARK. 
 
 Cursed is he that removeth the 491 
 
 The unjust judge is the capital remover of 491 
 
 LATIMER, HUGH. 
 
 Sermons of, on gift-taking judges 503 
 
 LAW. 
 
 Knowledge of, like a deep well 149 
 
 Definition of fellow-servants is question of 50 
 
 Whether negligence is question of 174 to 187 
 
 Uncertainty of the 283 
 
 Whether proper to be stated to jury in language of 
 
 statute 403 
 
 Whether evidence tends to prove issues is question of. . 304 
 
 Is the perfection of reason ■__ 549 
 
 Proposed amendments to the 449 to 488, 507 to 563 
 
 LAWYER. 
 
 Business of, not interfered with by larryeness 202 
 
 Best time for railroad company to cut off leg of 203 
 
 Should not be lulled into security by decision of supreme 
 
 court 237 
 
 Not to blame for not understanding the law 512 
 
 MACAULAY, LORD. 
 
 Views of, as to immoral actions : 491 
 
 Views of, as to bribery of judges 503 to 505 
 
 MAN. 
 
 Conceded to be imperfect 46 
 
 Works of, including instructions, imperfect ,__ 46 
 
INDEX 583 
 
 MANKIND. 
 
 Saying of " the wisest, brightest, meanest of," with re- 
 spect to judges 49 
 
 MASTER' AND SERVANT. 
 
 Master liable for acts of servant connected with business 
 
 of master 24 
 
 If servant cannot discover danger by reasonable care 
 
 neither can master 34 
 
 Master not liable for defects which could have been, but 
 
 only for those which would have been discovered by 
 
 ordinary care 45 
 
 Servant cannot recover for injury when he has notice of 
 
 danger 309, 551 
 
 How master may relieve himself from liability to servant 551 
 Proposed act to regulate liability of master to servant, 
 
 and reasons in favor thereof , 528 to 553 
 
 See Fellow Sbevants. 
 
 MONUMENT. 
 
 A goodly one according to father Latimer „ 504 
 
 MOTHER. 
 
 Cannot be always and at all hours with her child 257 
 
 May make a short visit to a neighbor, without being 
 
 guilty of negligence 257 
 
 Not guilty of negligence in leaving her child while she 
 
 milks the cow 259 
 
 Guilty of negligence if she allows child to escape from 
 
 house while she is bathing husband's head 260 
 
 MULES. 
 
 Ordinary care must be exercised by railroad company to 
 
 avoid injury to 280 
 
 Rules governing actions for injuries to, compared with 
 
 those applied in actions for injuries to children 
 
 280 to 281 
 NEGLIGENCE. 
 
 Definition of , is a question of law , 42 
 
 Whether facts bring the case within the definition of, 
 
 is a question of fact , 42 
 
 Is question of mingled law and fact 165 
 
 Is question of fact .'.166 to 173 
 
584 INDEX. 
 
 NEGLIGENCE— Continued. 
 
 Is sometimes question of law ., Jl74 to 188 
 
 Should be question of fact in all cases 188 to 189 
 
 Defined - 95,122,126,168, 169 
 
 Means "fault" 95 
 
 But three degrees of, slight, ordinary and gross 123 
 
 Gross, is want of slight diligence------.--^-. 123 
 
 Slight, is want of great diligence ..-_.-_. 123- 
 
 Ordinary, is intermediate between slight and gross 123 
 
 Gross, has no degrees - . .. 123 
 
 Is always faulty .1 126 
 
 Term used in its popular sense, as meaning want of ordi- 
 nary care .. 143,144, 145 
 
 Term used in' its legal sense ^_ . — 123 
 
 Whether permitting cow to run at large is ^ 156 
 
 Of parents, with respect to their children 256 to 263 
 
 Passing between cars of freight train is .. 178 
 
 Looking at a load of hay tipping over _. .. 325- 
 
 Looking, at a drove of hogs -. --.._„ 235- 
 
 Whether failure to ring bell or sound whistle is 168 
 
 Failure to look up and down railroad track... 175, 326, 401 
 Passing under freight car, upon invitation of con- 
 ductor, is 2Z 
 
 See Comparative Negligence ; Contributory Negli- 
 gence. 
 
 NEWTON, JOHN- 
 
 Would be unjustly called a hypocrite and a monster 492 
 
 NEW TRIALS. 
 
 As regulated by statute - . 285 to 286 
 
 When granted on account of excessive damages 151 
 
 Circuit court may grant any number of, for errors of law 286 
 Not more than two to be granted by circuit court, be- 
 cause verdict against evidence 286 
 
 Statute regulating, does not apply to supreme court . . 286 
 Proposed change of statute with respect to 554 
 
 NON-PASSHOLDERS. 
 
 Principal complaint against free passes come from 490 
 
INDEX. 585 
 
 OHIO. 
 
 Doctrine of imputed negligence repudiated by supreme 
 court of ,273 to 274 
 
 OPPRESSION OF LITIGANTS. 
 
 Results of , in Sykes Case 28 
 
 Results of , in Moranda Case 65, 208 
 
 Generally 86 to 91 
 
 Appellate court act causes 488 
 
 With respect to costs 509 to 513 
 
 By reversals by supreme court, for trivial errors 558 
 
 ORAL CHARGES. 
 
 Sufficient, if general scope and tendency correct 276 
 
 Compared with written instructions 431 to 448 
 
 ORDINARY CARE. 
 
 Defined 93, 95, 121 
 
 Want of, will bar recovery by plaintiff, when 93, 539 
 
 Is synonymous with reasonable care 95 
 
 Is synonymous with slight negligence 140, 398 
 
 Want of, to bar recovery, must have contributed to 
 
 injury 95 
 
 Exercise of, essential to recovery by plaintiff, when. ^__ 121 
 Whether want of, will bar recovery when defendant 
 
 guilty of gross negligence 128 to 136 
 
 Want of, on part of plaintiff, no defense to action, 
 
 377 to 379, 541 
 ORDINARY RISKS. 
 
 Are those which law imposes upon servant 59 
 
 Injury to engineer of one train through negligence of 
 
 conductor of anothertrain , 55 
 
 Difficulty of determining what are 548 to 550 
 
 PAIN. 
 
 May be inferred from crushing and mangling of arm. . 470 
 
 An element of damages 201 
 
 PARENTS. 
 
 Must exercise care for their offspring of tender years.. 
 
 256, 261 
 See Mother. 
 
586 INDEX. 
 
 PASSION AND PREJUDICE. 
 
 Of jurors, as shown by excessive verdicts 14, 190 
 
 May influence a judge 211 
 
 Of jurors, commented on by supreme court 251 to 355 
 
 Of jurors, effect of, upon supreme court 356 to 283 
 
 Causes of , in case of jurors 317 
 
 Of jurors, compared with cold and unfeeling reasoning 
 of judges 281 
 
 Jurors must shrink from influence of, as they would 
 shrink from crime 255 
 
 PENSIONS. 
 
 Liberality of United States, in regard to 199 
 
 Act of Congress fixing amount of, as affecting award of 
 damages by jury for personal injury 205 
 
 PEW-RENT. 
 
 Railroad companies do not pay 489 
 
 PERQUISITE. 
 
 Acceptance of, by supreme or circuit judge, forbidden 
 
 by constitution 501 
 
 Whether free pass is 501 
 
 PHILOLOGY. 
 
 Rules of, as applied in construing instructions 229 
 
 Knowledge of , important to practitioner 234 
 
 PLEADINGS. 
 
 Whether due care on part of plaintiff must be alleged 
 in declaration 161, 162 
 
 Must correspond with proofs 409 
 
 Question of comparative negligence, when to be pre- 
 sented by 178 
 
 Declaration and indictment compared 371 to 373 
 
 POPULAR PREJUDICE. 
 
 Against railroad corporations , 196 
 
 Causes of . 317, 508 
 
 Might be lessened by abolishing free pass system 508 
 
 PRECINCTS AND PURPRISE. 
 
 Of the place of justice ought to be preserved without 
 scandal and corruption 491 
 
INDEX. 587 
 
 PUBLIC OFFICIALS. 
 
 Free passes are given to 489 
 
 Giving of free passes to, should be prohibited by law. . 507 
 
 PUBLIC SENTIMENT. 
 
 Should be heeded by public officers when 503 
 
 QUESTIONS OF LAW AND QUESTIONS OF FACT. 
 Negligence is question of fact 166 to 173 
 
 Negligence sometimes question of law 174 to 188 
 
 Negligence is question of mingled law and fact 165 
 
 Definition of negligence is a question of law 168, 169 
 
 Whether case falls within definition of negligence is 
 
 question of fact 169 
 
 Definition of fellow-servants a question of law 173 
 
 Whether servants fall within definition is question of 
 
 fact i 173 
 
 Comparative negligence is question of fact 171 
 
 Negligence should be question of fact 188 
 
 As affected by special verdict 186 
 
 Whether rule of railroad company is reasonable is ques- 
 tion of law ~ , 63 
 
 Whether it is negligence for person to pass under car 
 
 on invitation of conductor is question of fact 26 
 
 Whether two persons are fellow-servants is a question 
 
 of law 55 
 
 Whether party is injured by one of the ordinary perils 
 of the service is a question of law 55 
 
 RADIUS DIVINI LUMINIS. 
 
 Essential to the comprehension of doctrine of fellow- 
 servants _■_ 549 
 
 RAILROAD. 
 
 Failure of person walking upon, to look in both direc- 
 tions, want of ordinary care 232 
 
 RAILROAD CASES. 
 
 Judgments against four leading railroad companies re- 
 versed 5 to 6 
 
 Judgments against four leading railroad companies 
 affirmed 7 
 
 Judgments in favor of four leading railroad companies 
 reversed 7 
 
588 INDEX. 
 
 RAILROAD CASES— Continued. 
 
 Judgments against four leading railroad companies 
 affirmed . 7 
 
 Results o£ appeals in railroad crossing cases .. 8 
 
 Results of. appeals from judgments for injuries result- 
 ing in death 9 
 
 Description of, where judgments were affirmed by the 
 supreme court 10 to 19 
 
 Proportion of successfully tried upon first trial 19 
 
 Proportion of reversals to affirmances in appeals from 
 
 appellate courts 7 
 
 Description of, where judgments of appellate courts 
 
 were reversed by supreme court , 20 to 84 
 
 Rulings of supreme court in, as compared with those in 
 
 criminal cases 360 to 3£0 
 
 RAILROAD COMPANIES. 
 
 Power of leading ones 85 . 
 
 Entitled to same rights as other suitors 253 to 563 
 
 To prove case against, does not require stereotyped set 
 
 of words 400 
 
 Liable for negligence of conductor in inviting person 
 
 to pass under train 24 
 
 Reasonable care on part of, can not accomplish more 
 
 than reasonable care on part of employees 34 
 
 Failure of, to ring bell or sound whistle does not absolve 
 
 person from duty of using due care 237 
 
 Not bound to give other signals than those of bell and 
 
 whistle 72 
 
 Popular prejudice against 196 
 
 Causes of popular prejudice against 317, 508 
 
 Situation of, as viewed by advocates of free pass system 489 
 As to the bribery of public officials by, through free 
 
 passes 489 to 506 
 
 And individuals, respective standing of, in the higher 
 
 courts 459 
 
 Statute authorizing appellate courts to find the facts, 
 
 is in the interest of 301 
 
 How the practice of the law made interesting to 68 
 
INDEX. 589 
 
 REFORMS IN GOVERNMENT. 
 
 Not to be expected from those who sit serenely on the 
 social mountain tops, enjoying the benefits of the 
 existing order of things 491 
 
 REHEARING. 
 
 Letter from client to attorney, proper introduction to 
 petition for . 482 
 
 As to reluctance of counsel to file petition for 483 
 
 Whether failure to file petition for, is gross negligence. 484 
 
 REMANDING CAUSES. 
 
 By supreme court should be to trial courts. „ 486 
 
 REVERSALS. 
 
 Of judgments against four leading railroad companies. 
 
 5 to 9 
 
 In railroad and criminal cases disproportioned 493 
 
 Costs occasioned by, in railroad cases 89 
 
 Costs of, should be paid by party finally unsuccessful.. 
 
 509 to 513 
 
 REVERSING WITHOUT REMANDING. 
 
 Restricts right of trial by jury 284 
 
 Amounts to amendment to constitution 285 
 
 RESISTANCE OP CLAIMS. 
 
 Encouraged by statute limiting damages for causing 
 death 207 
 
 RINGING BELL AND SOUNDING WHISTLE. 
 
 Statute of 1869 and 1874 in relation to 366 
 
 SAINT LOUIS. 
 
 Should not be called a wicked man 492 
 
 SALARIES. 
 
 Effect of small, upon opinions of judges 226 
 
 State should not be penurious in fixing 508 
 
 Of judges of supreme and circuit courts . 508 
 
 Of members of General Assembly 509 
 
 Use of free passes by public officials caused by insuffi- 
 ciency of 508 
 
 Payment of small, not economy 509 
 
 SCRIPTURE. 
 
 Quotations from by Lord Bacon 491 
 
590 INDEX. 
 
 SERVANT. 
 
 Difficulties encountered by, in ascertaining his rights .. 549 
 
 SIGNALS. 
 
 Railroad company not bound to give other than those 
 
 required by statute 72 
 
 Term applied to warnings given by flagman 75 
 
 Duty of railroad company to give sufficient 76, 77, 79 
 
 Mere compliance with statute as to, does not relieve 
 
 company from liability 82 
 
 /--SKINS. 
 
 Of bribe-taking judges necessary to make England 
 merry 505 
 
 SOLOMON. 
 
 Saying of 491 
 
 SOPHISTRIES. 
 
 Of railroad lawyers, effect of, upon supreme court 222 
 
 SPECIAL VERDICT. 
 
 As to negligence 184 to 188 
 
 Importance of, in determining effect of erroneous in- 
 structions g 377 
 
 STOCK. 
 
 Liability of railroad company for killing 157 
 
 In actions for injuries to, burden of proving contribu- 
 tory negligence is upon the defendant 157 
 
 Rule of contributory negligence as applied in action for 
 killing __ 278 
 
 STRATEGY. 
 
 Result of violation of rules of 67, 68 
 
 STREAM. 
 
 Can never rise higher than its fountain. 46 
 
 SUPREME COURT. 
 
 For what purpose created 10, 290 
 
 Defects in organization and modes of procedure of, 
 should be remedied 10 
 
 Grammatical criticism should not be indulged in by 26 
 
 Should re-examine cases brought from appellate courts 
 as to questions of law only 26 
 
 Results of appeals to, by four leading railroad compa- 
 nies 5 to 9 
 
INDEX. 591 
 
 SUPREME COURT— Continued. 
 
 May grant any number of new trials because verdict 
 
 against evidence 286 to 288 
 
 Power of, to review finding of jury, how conferred 289 
 
 May reverse judgment of circuit court entered as re- 
 quired by law 290 
 
 As to whether judges of, should hold circuit courts 453 
 
 Appeals to, from appellate courts, when allowed... 454, 459 
 
 Should be limited to important questions 474, 555, 558 
 
 Should remand cases to trial courts 486 
 
 The relative rights of individuals and railway corpora- 
 tions dependent upon 563 
 
 STUDENT. 
 
 Lord Coke's observation to, with regard to the knowl- 
 edge of the law 149 
 
 TOWNSHIP ASSESSORS. 
 
 Why free passes are given to 494 
 
 TRIAL BY JURY. 
 
 Constitutional and statutory provisions securing right of 249 
 
 Prejudice against system of, the result of ignorance 282 
 
 Right of, restricted by reversing without remanding 
 
 causes 284 
 
 As to power of supreme court to grant more than two 
 
 new trials 285 
 
 Right of, violated by statute allowing appellate court to 
 
 reverse verdict and enter contrary finding 290 
 
 Right of, as affected by practice of excluding evidence 
 
 from jury 302 
 
 Why created 315 
 
 How to be preserved from destruction 318 
 
 TRIAL JUDGES. 
 
 How embarrassed in applying doctrine of comparative 
 
 negligence ;._ 31 
 
 Unjust reflections upon 282 
 
 The amount of damages to be awarded by jury should 
 be under sole control of, when 519 to 522 
 
 Rulings of, as to comparative negligence should not be 
 subject to review 560 to 561 
 
592 INDEX. 
 
 UNITED STATES COURTS. 
 
 Not bound to instruct jury in -writing 839 
 
 Eulings of, compared with those of Suprema Court of 
 Illinois 275, 277, 431 to 448, 543 
 
 UNJUST JUDGMENTS AND UNJUST VERDICTS. 
 
 Discussed 315, 317 
 
 As bearing upon the question of bribery by railway 
 passes 496 
 
 VARIANCE. 
 
 Whether brakeman assisting in making up freight 
 
 train is equivalent to brakeman on a freight train.. 222 
 Difference between planks of sidewalk being broken and 
 planks being out 409 
 
 VERDICT. 
 
 Should be referred to facts which make it right, rather 
 
 than to instructions which would make it wrong 68 
 
 As to power of circuit and supreme. courts to set aside 
 
 third, in favor of same party. 285 to 290 
 
 When result of passion and prejudice, should be set 
 
 aside 14 
 
 Outrageous, sanctified by remittitur 14 
 
 Third, in favor of same party, will not be set aside unless 
 
 for want of evidence, or its manifest insufficiency. _ 18 
 Unjust may be relieved against 496 
 
 WEDDINGS. 
 
 Railroad companies cannot rejoice at 489 
 
 WIDOW. 
 
 Letter of, to attorney, proper introduction to petition 
 for a rehearing, when. _ T 483 
 
 WITNESSES. 
 
 Credibility of , question for jury 320 
 
 Testimony of unimpeached, cannot be willfully dis- 
 regarded 320 
 
 Testimony of, in railroad cases, how viewed by supreme 
 
 court ___320 to 522 
 
 Testimony of, in railroad cases, how viewed by jurors.. 
 
 323 to 324