dissenting:
I am of opinion that the 21st instruction tendered by counsel for appellant should have been given, and that it was error to refuse it.
The instruction is as follows: “ The jury are instructed that the City of Chicago is not liable for the act or conduct of persons not in its employ.”
It is difficult to see why this instruction, which specifically refers to one of the litigants and imposes a limit to its liability, should be held to be merely an abstract proposition of law.
The instruction approved in the case of W. C. St. R. R. Co. v. Estep, 162 Ill. 130, and held not to be merely an abstract proposition of law, ivas quite as much open to the objection as is this instruction. If in that instruction the use of the v?ord plaintiff applied it to the case on trial, and saved it from being a mere abstract proposition, it would seem clear that the specific reference to one of the litigants, viz., the. city, and a direction as to its liability, would equally operate to'apply this instruction to the case at bar and save it from being a mere abstract proposition.
ISTor can 1 see how, under the evidence here, the instruction could possibly mislead the jury.
The evidence shows without conflict that Moriarity was, and O’Brien was not, in the employ of the city.
The amended narr. charges that the city “ carelessly and negligently frightened the said plaintiff and chased him from and off said bridge,” etc., whereby, etc.
The only evidence to sustain this allegation was evidence to show that Q’Brien thus frightened the plaintiff. O’Brien was not in the employ of the city. The instruction was proper, appropriate, and should have been given. It is not covered by any other instruction given, and it was essential to the appellant’s fair defense.