This was an action by appellee as the administratrix of the estate of John White, deceased, against the railroad corporation, appellant, to recover damages for negligence of the servants of the latter in the running of a switch engine against or over said White, December 19, 1883* causing an injury, as it is alleged, of which he died. On a trial the plaintiff had judgment for $4,000 damages, and the defendant prosecutes this appeal.
The accident occurred in the morning of the above mentioned day. The weather was severely cold. The place was about- fifty feet north of the crossing of the defendant’s tracks by 41st street, the tracks running in a north and south direction upon Stewart avenue and said street east and west. White was a carpenter in the employ of defendant, and he and another carpenter had been engaged in building a sidewalk along defendant’s track from 41st street north to a “shanty” there, to be used as a station. At the time in question, these two men were measuring their work with a tape line, and, as a matter of convenience, were, while doing so, upon the track, which ran cíese thereto. A switch engine of defendant came from the south on said track, where White was so engaged as aforesaid, toward said crossing, at the rate, as the evidence tended to show, of eight or ten miles an hour, and the evidence tended to show that the statutory signals were given before reaching the crossing; that the engine driver saw White on the track a sufficient distance south of him to have stopped his engine by the use of ordinary care before reaching him and that White was apparently unaware of his danger; that the engine driver did, in fact, attempt to stop his engine and would have succeeded but for the fact that the conductor, who was riding therein, was seated with reference to the lever, so as to interfere with and prevent" its proper use, for which reason the attempt failed. As to such interference and prevention there was a conflict of testimony, but which could properly be passed upon by the jury and trial Judge, in whose presence the testimony was delivered.
It appeared, without contradiction, that a flagman, who had been habitually kept at said crossing, and less than a hundred feet from where White was, had absented himself from his place at the time said engine came. It also appeared that there were numerous other railway tracks in that immediate neighborhood on which, at that time, there were four or five locomotives giving forth the usual discordant sounds of whistles, bells and blowing off steam at the same time. Under such circumstances, White, inadvertently, though not unlawfully, remained upon the track, and for some reason, which can only be inferred from the circumstances, was unaware of the danger which threatened him until'too late, when the engine, then almost stopped, ran over a portion of his body, inflicting injuries from which he died.
There was no conflict of testimony as to the absence, at the time, of the flagman from his proper place. But that was material, under the circumstances of this case, only as bearing upon the question of the exercise by White of ordinary care in going upon the track and remaining there, as he did. Upon every other element of the cause of action the testimony was conflicting, with an apparent preponderance in favor of the defendant. In such case, accuracy in the instructions, so far as given for plaintiff, as well as in the modification of those asked for defendant, becomes highly requisite. L. S. & M. S. R. R. Co. v. Elson, 15 Ill. App. 83, and cases cited.
At the instance of plaintiff, the court gave to the jury this instruction:
“ The jury are instructed that, although a person may he improperly upon a railway track, that fact alone will not discharge the company or its employes from the .observance of reasonable care, and if such person, while exercising reasonable care for his safety, is run over and receives injuries from the accident, which injuries subsequently cause death, the company will be responsible if its employes were guilty of gross negligence aud could have avoided the accident by the exercise of reasonable and ordinary care, diligence and watchfulness.”
That instruction is bad for its confusion of ideas and misleading tendency. It contains no hypothesis as to attending circumstances; as whether the engine driver had any reason to apprehend the presence on the track of deceased or other persons; whether such engine driver saw deceased in time to have stopped his engine; or whether deceased was in the exercise of ordinary care in going upon the track. It assumes to prescribe the effect of the doctrine of comparative negligence without embodying its necessary elements. I. C. R. R. Co. v. Frelka, 9 Ill. App. 605.
The defendant asked the court to instruct the jury, “ that if they shall find from the evidence that White became aware of the approach of the engine in time to get off the track before being struck, and that he did not use ordinary care to do so, then the plaintiff can not recover, and their verdict must be for the defendant.” This the court refused to give as asked, but adding to it the following qualification, gave it: “Unless you believe from the evidence that the servants of the defendant were guilty of gross negligence when compared with the negligence of the deceased, and that the negligence of the latter was slight when compared with that of defendant’s servants, if they were so guilty of negligence.”
The instruction as asked by defendant was proper and should have been given as asked. The qualification goes upon the theory that although the injured party may have failed to exercise ordinary care, yet that will amount to only slight negligence and will not defeat a recovery, if the negligence of the defendant’s servants is gross when compared with it. Such is not the law. C., B. & Q. R. R. Co. v. Johnson, 103 Ill. 512; Calumet Iron & Steel Co. v. Martin, 115 Ill. 358.
Those cases settle the law in this State, that in actions to recover for personal injury upon the ground of mere negligence, the want of ordinary care on the part of the person injured will defeat recovery, and the doctrine of comparative negligence has no application.
There are other errors in the record, but those specified being of such character as to require a reversal of the judgment, we shall not waste time in pointing them out.
The judgment will be reversed and cause remanded.
Reversed and remanded.