Where, on appeal or writ of error, prosecuted by the defendant below, it shall appear from the bill of exceptions that the evidence was substantially conflicting upon any fact or facts, indispensable to the plaintiff’s right to recover, and error is assigned upon the giving instructions to the jury on behalf of the plaintiff, by the court below, then, if this court shall lind that such instructions were calculated to mislead the jury, by reason of the want of reasonable perspicuity in their structure, or of the comprehension of material facts in their hypothesis, or the want of accuracy as respects points of law necessarily involved in the case, the law of the Supreme Court of this State, makes it our duty to reverse the judgment and award a new trial.
To say that the evidence in this record, as to several facts essential to the plaintiff’s right of recovery, was conflicting, is to speak of that matter far more mildly and reservedly than we might be justified in doing. Suffice it to say that, in our judgment, it is a clear case for the application of the rule in regard to the accuracy of instructions above indicated.
The instruction given for the plaintiff below was defective and inaccurate in several particulars. First, it contains no hypothesis that the plaintiff was in the exercise of ordinary care or diligence in the protection of his person from injury at the time of the occurrence of such injury. That the plaintiff was not entirely free from contributory negligence, is clear from the evidence beyond doubt. That being so, it should have been submitted to the jury to determine whether he was in the exercise of ordinary care, for it was indispensable to recovery for the mere negligence of the defendant, in any point of view, that the plaintiff was in fact in the exercise of ordinary care to protect himself at the time the occurrence happened. C. B. & Q. R. R. Co. v. Johnson, 103 Ill. 512, and cases there cited. Bo such proposition of fact was submitted, and then the court told the jury that “ if they believed from the evidence and circumstances proven, that the negligence of Heaney was gross in that respect, and that the negligence of the plaintiff, if any, was slight, then the jury will find the defendant guilty, and assess the plaintiff’s damages at whatever sum the evidence will sanction.”
If the above was intended to be an announcement of the yule of comparative negligence, which obtains in this State, it was wanting in one of its essential requirements, because there was no suggestion of a comparison of the negligence of the plaintiff with that of Heaney. Such comparison should have been required. Sterling Bridge Co. v. Pearl, 80 Ill. 251; Railroad Co. v. Delaney, 82 Ill. 198; C. B. & Q. R. R. Co. v. Harwood, 90 Ill. 425; Wabash R. R. Co. v. Henks, 91 Ill. 406; East St. Louis Packing, etc. Co. v. Hightower, 92 Ill. 139; N. W. R’y Co. v. Dimick, 96 Ill. 42. And the court still adheres to the formula of comparison in the late case of C. B. & Q. R. R. Co. v. Johnson, 103 Ill. 522, not withstanding it there defines the terms “slight” and “gross,” as applied to negligence, and holds that neither of them admits of any comparison. It is not for us, being a subordinate court, to change or modify the rule," nor can we disregard a depart-. nre from it.
The instruction is erroneous, in that it does not expressly require the jury to find, as a fact, that the injury complained of. was caused by the negligence of the defendant or its authorized servant.
We think, also, that the direction to the jury that if they found the defendant guilty, “they should assess the plaintiff’s damages at whatever sum the evidence will sanction,” was not proper, because it embodied no rule of damages, but left the whole subject to the unlimited discretion of the jury. It should have been at such sum as would be a just compensation to the plaintiff for the injury sustained, as shown by the evidence. For the error in giving that instruction, the judgment of the court below will be reversed and the cause remanded.
¡Reversed and remanded.