delivered the opinion of the court:
First—When the plaintiff rested, and at the close of all the testimony, the appellant asked the court to instruct the jury in writing to find the appellant not guilty as to the first count of the declaration, which request was refused; and appellant also-requested the court to instruct the jury to find the appellant not guilty as to the second count of the declaration, which request was also refused. To such refusal the appellant then and there excepted. The question is thus raised, whether or not the evidence tends to establish the cause of action; that is to say, whether or not the evidence tends to show that the appellant was guilty of such negligence, as caused the injury, which resulted in the death of August Schmidt, and whether or not the deceased August Schmidt was in the exercise of due care for his own safety, when the injury that resulted in death occurred.
In their opinion deciding this case the Appellate Court say: “The evidence as a whole, with the reasonable inferences deducible therefrom, fairly and clearly tends to prove: that appellant owned and operated a coal mine, •in the underground workings of which there were many entries and rooms; that it was the practice, in the operation of the mine, to clear away the fallen slate and debris from both sides of the track wherever there was sufficient room for a driver to go in case of danger, and this work was usually performed by a servant of appellant denominated a ‘slate shifter;’ that deceased knew . of such practice and was governed in his conduct thereby; that the part of the entry, in which he was injured’ was new; that two days before the injury a large quantity of slate and other substances had fallen from the roof, completely blocking the entry and extending for a distance of about twenty feet lengthwise of it; that the superintendent saw this condition, and, with full knowledge of it, left the mine and went to Springfield; that two miners from an adjacent room and another employe of appellant shoveled the debris off the track sufficiently to allow cars to pass along it, but, in doing so, left slabs of slate and part of the debris, standing and piled against the wall on the ‘rib side’ of the track, obstructing the space between the track and the wall; that deceased had never been in that part of that entry and knew nothing of the conditions, when on March 28, 1900, he was directed to go in there and bring ont some cars; that there was no light, except from his lamp, and from that of a miner sitting on one side of the entry some distance from him; that the darkness was such as to greatly obscure the surroundings; that, when he had taken his mule in and hitched on to two cars and started out, on a down grade, he collided with a car, which another driver had left on the track, and, discovering his peril as the cars were about.to strike, he attempted to escape on the ‘rib side,’ but was prevented by the slate and debris, which obstructed the space on that side, and, before he could cross to the opposite side, was caught and crushed between the cars.”
In view of the facts, which the.evidence thus tends to establish, there was evidence, tending to prove that the appellant was guilty of negligence and that the deceased was in the exercise of due care. Therefore, the court committed no error in refusing to instruct the jury to find the appellant not guilty.
Second—Appellant claims that the trial court erred in giving certain instructions asked by the appellee, and in refusing to give certain instructions asked by the appellant. Among the instructions, given for the appellee, was the following instruction, numbered 29, to-wit:
“The court instructs the jury that, whenever the death of an individual is caused by the negligence or carelessness of a person, company or corporation, and is not the result of his own carelessness or negligence, then, and in every such case, the company, person or corporation, guilty of such carelessness or negligence, is liable to an action for damages, and the amount recovered in every case is for the widow and next of kin of such deceased person, and, in every such case, the jury may give such damages as they may 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 to exceed, however, the sum of $5000.00; and, if you believe from the evidence in this case, that August Schmidt, while in the employ of the defendant was killed, and that his death was due to the carelessness or negligence of the defendant as charged in the plaintiff’s declaration, or in the first or second count, and that his death was not the result of his own carelessness or negligence, and that he left a widow and next of kin, who suffered pecuniary injuries by reason of his death, then your verdict should be in favor of the plaintiff; and, if you believe, and from the evidence find, the defendant guilty, then it will be the duty of the jury to assess the plaintiff’s damages, and, in doing so, you may take into consideration the pecuniary injuries resulting to the widow and next of kin, if from the evidence you believe there is a widow and next of kin and that they have suffered pecuniary injury or loss on account of the death of said August Schmidt, and give to the plaintiff such a sum as in your judgment will fairly compensate the widow and next of kin for such pecuniary injury or loss, not to exceed, however, the amount sued for in this case.”
The above instruction must be regarded as erroneous under previous decisions made by this court.
In Keightlinger v. Egan, 65 Ill. 235, which was an action of trespass on the case, the court gave to the jury an instruction, which told them that they “should find for the plaintiff such damages as in their judgment, from the evidence in this cause, the plaintiff ought to recover, not exceeding the sum of §3000.00;” and in reg'ard to this instruction we there said (p. 238): “The instruction was wrong, upon the point of damages, in telling the jury they might find for the plaintiff such damages as in their judgment from the evidence in the cause the plaintiff ought to recover. This left the jury free scope to give such damages as, according to their individual notions of right and wrong, they might think the plaintiff ought to recover, unguided by any legal rule of damages, and without regard to the damages sustained.”
In Waldron v. Marcier, 82 Ill. 550, an instruction was held to be erroneous, which directed the jury: “If they found for the plaintiff, to allow such damages as they believed from the evidence, she was entitled to;” and we there said (p. 553): “It should have been such damages as she had sustained, and not have given to the jury the wide latitude of allowing her such damages as they might deem that she was entitled to.”
In Chicago, Rock Island and Pacific Railroad Co. v. Austin, 69 Ill. 426, the court gave to the jury the following instruction: “The jury are instructed that, by the statute of Illinois, the plaintiff in this case cannot" recover more than §5000.00, 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;” and in regard to this instruction we there said (p. 428): “By all the rules of philology, that is but telling the jury they must render a verdict for §5000.00. It is true, the jury did not render such a verdict, but was it not a strong, 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 §5000.00, 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.”
In City of Freeport v. Isbell, 83 Ill. 440, the jury were instructed as follows: “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 $10,000.00, the amount claimed in the plaintiff’s declaration;” and in regard to this instruction we there said (p. 443): “The law required the jury to determine the liability of the defendant from the evidence, and from that alone; and an instruction which would permit them to enter into an open field of investigation canno.t be sustained. The instruction should have been modified, or the court should have refused it.”
In Cleveland, Cincinnati, Chicago and St. Louis Railway Co. v. Jenkins, 174 Ill. 398, where an instruction told the jury that, under certain contingencies, “you should find for the plaintiff and fix his damages at such sum as you think right, not exceeding the amount claimed in the declaration,” we said in regard to the instruction (p. 409): “No reference is made to the evidence in the case. This form of instruction is erroneous and has been frequently condemned by this court.”
The case at bar is close upon the facts, and the testimony is conflicting. It was important, therefore, that the jury should be correctly instructed as to the rule of damages applicable to the case. (Dady v. Condit, 188 Ill. 234). No other instruction was given on either side, which can be said to have corrected, or modified in any way, the errors contained in the above quoted instruction, numbered 29.
For the error in giving the twenty-ninth instruction, the judgments of the Appellate Court and of the circuit court are reversed, and the cause is remanded to the circuit court for further proceedings in accordance with the views herein expressed.
Reversed and remanded.