Liability for injury from excavation in street by an individual. See
HIGHWAYS, 5.
GENERALLY. See CORPORATIONS, 6 to 9.
PROHIBITION UNDER NEW CONSTITUTION.
When the prohibition went into effect. See SUBSCRIPTIONS, 1.
FOR CORPORATE PURPOSES. See TAXATION, 6 to 11.
1. Liability for death of a passenger caused by negligence. It is the
duty of a street railway company to carry their passengers with safety;
and if the death of a passenger results from the carelessness of its serv-
ants in the management of its car, or from a defective track, or from an
overloaded car, or from all combined, the company will be liable.
Chicago City Railway Co. v. Young, 238.
2. Injury by fire from locomotive. Where a railroad company suffered
a heavy growth of dry grass to remain on its right of way through
plaintiff's premises, and fire was communicated from the locomotive of
a freight train, while laboring to ascend a heavy grade, to the grass and
weeds in the right of way, and from thence communicated to the fences
and grass of plaintiff, which was destroyed: Held, that the company
was guilty of negligence, and that the plaintiff was entitled to recover.
Rockford, Rock Island & St. Louis Railroad Co. v. Rogers, 346.
3. In respect to the crossing of highways. Railroad companies, under
their charters, have the same right to use that portion of the public
highways over which their track passes as other people have to use the
Their rights and those of the people as to the use of the high-
ways at such points of intersection are mutual, co-extensive, and recip-
rocal; and in the exercise of such rights all parties will be held to a
due regard to the safety of others, and to the use of every reasonable
effort to avoid injury to others. Indianapolis & St. Louis Railroad Co. v.
Stables, 313.
4. It will be presumed that the servants of a railroad company hav-
ing charge of its trains are cognizant of the road crossings along the
line of their road; and when any such crossing is obviously a danger-
ous one, that the employees of the company knew such fact as well as
that persons are liable at all times to be in the act of passing. Ibid.
313.
NEGLIGENCE. NEGLIGENCE IN RAILROADS.
5. The degree of diligence and care required of railroad companies,
it seems, is not fixed by any definite and precise rule, but depends rather
upon the facts and circumstances of the case, so that what would be an
unnecessary act in one case would be imperatively demanded in an-
other. Indianapolis & St. Louis Railroad Co. v. Stables, 313.
6. It may be that there are places where it would be negligence to
construct a road crossing over a highway without making a bridge for
the latter over the railroad track; but at any rate the company must
be held to a sufficiently high degree of diligence to overcome, as far as
practicable, the danger. Ibid. 313.
7. The question of negligence is one of fact to be found by the jury.
It depends, to a great extent, upon the surrounding circumstances of
each case; and unless in case of gross acts of carelessness or failure to
observe some positive requirement of law, the courts can not adopt any
positive rule on the subject. Ibid. 313.
8. Where a railroad is so constructed that the place where it crosses
a public highway is unusually dangerous to the traveling public, as
where its track intersects the highway in a cut and is approached on
the road by descending a hill, and persons approaching the crossing
can not see the railroad track owing to brush and bushes until within a
few feet of it, and then only a small portion of it, owing to a sharp
curve: Held, that a neglect to sound the whistle or ring the bell, as re-
quired by the statute, under such circumstances, would be gross negli-
gence. Ibid. 313.
9. And where a railroad track crossed a public highway at a place
of unusual danger and peril to persons who might be passing over such
crossing in the highway, and a person traveling over the same with his
wagon and team was struck and injured by a passing train which was
running at a rapid rate: Held, that the speed of the train might be
considered in connection with the location of the roads and the other
surrounding circumstances on the question of negligence. Ibid. 313.
10. Failure to ring the bell or sound the whistle at crossings. The law
does not require a railroad company to ring a bell or sound a whistle
at a farm crossing. Toledo, Peoria & Warsaw Railway Co. v. Head, 233.
OF CONTRIBUTORY AND COMPARATIVE NEGLIGENCE.
11. In cases of personal injury from negligence the well-established
rule of this court is, that the plaintiff will recover even though he was
negligent himself, if the negligence of the defendant was so much
greater as when compared with that of the plaintiff that the negligence
of the latter was slight. Indianapolis & St. Louis Railroad Co. v. Stables,
313.
12. The well-established rule of this court in regard to contributory
negligence resulting in injury is, that the plaintiff may recover, not-
NEGLIGENCE. OF CONTRIBUTORY AND COMPARATIVE NEGLIGENCE. Con-
tinued.
withstanding he was himself negligent if his negligence is slight when
compared with that of the defendant. Indianapolis & St. Louis Railroad
Co. v. Stables, 313.
13. In this case the plaintiff, while in the act of crossing defendant's
railroad at its intersection of the public highway, was struck by an en-
gine of defendant, attached to a train, and received severe personal
injury. The railroad was in a cut and was approached by defendant on
the highway by descending a hill. When about sixty-five yards from
the track he stopped his team, looked and listened for the train, and
neither seeing nor hearing it he proceeded to cross. In approaching,
the track was hidden from view by bushes and shrubs until within a
few feet of it, and then only a small part of the track could be seen,
owing to a sharp curve in it. It appeared that the train was running
at an unusual speed. Plaintiff's horses became frightened and unman-
ageable so that they required his whole attention. It appeared that the
statutory signal was not given before reaching the crossing: Held, that
the defendant was guilty of gross negligence, and that even if any neg-
ligence was attributable to plaintiff, it was slight in comparison with
defendant's. Ibid. 313.
14. In an action against a railroad company to recover for a per-
sonal injury to plaintiff on the ground of negligence in the servants of
the defendant, the question is, through whose fault or negligence did
the injury occur; and if the plaintiff was guilty of contributory negli-
gence, was it slight in comparison with that of the servants of the de-
fendant? If the negligence producing the injury is equal, or nearly so,
or that of the plaintiff is greater than that of the defendant, he can not
recover, but if his negligence was slight in comparison to that of the
defendant, he may recover. Chicago & Alton Railroad Co. v. Murray, 426.
15. In such a case, where the vital question was the comparative
negligence of the plaintiff with respect to that to be attributed to the
servants of the defendant, and the evidence on this point was conflict-
ing and difficult to resolve, the court in two instructions for the plaintiff'
substantially told the jury that if the defendant by its servants, the en-
gineer and fireman of the engine that caused the injury, were guilty of
negligence in managing the engine, then the defendant was liable for
such negligence: Held, that the instructions in themselves were erro-
neous, and that although other instructions in the series given for the
plaintiff and defendant stated the law of comparative negligence accu-
rately, yet the objectionable ones were calculated to mislead the jury in
such a case. Ibid. 326.
16. The plaintiff, working upon a bridge across defendant's railroad
track, with knowledge of an approaching train, called to his little boy,
eleven years old, to lead his horse across the track. In doing so, the
norse, through fright, escaped and got upon the track and was killed
NEGLIGENCE. OF CONTRIBUTORY AND COMPARATIVE NEGLIGENCE. Con-
tinued.
by the train. The proof failed to show negligence in the company:
Held, that a verdict against the railroad company for the value of the
horse could not be sustained; that the plaintiff was guilty of great neg-
ligence on his part. Toledo, Peoria & Warsaw Railroad Co. v. Head, 233.
VERDICT AGAINST THE EVIDENCE.
1. To entitle the plaintiff to recover, he must establish his right by
a preponderance of testimony. When the testimony of the plaintiff is
expressly contradicted by that of the defendant, and defendant is cor-
roborated by two other witnesses, a verdict for the plaintiff is not sus-
tained by the evidence, and it is error to refuse a new trial. Lincoln v.
Stowell, 84.
2. Where the testimony of the plaintiff in an action of trespass for
personal injury is wholly unsupported as to the material facts, and is
contradicted by the testimony of the defendant and several other disin-
terested witnesses as to such material facts, and no reason appears for
rejecting or discrediting the testimony of the defendant and his wit-
nesses, and the verdict of the jury can be supported on
ground: Held, on appeal, that the verdict was against the weight of
the evidence. Smith v. Slocum, 354.
3. It is the duty of a jury to find according to the weight of the ev-
idence, and not capriciously on the testimony of a single witness who
is a party to the suit, in opposition to the evidence of numerous other
unimpeached and intelligent witnesses, who appear to have stated the
details of the facts honestly as they saw and heard them. Ibid. 354.
4. It is an unwarranted assumption of power in a jury to reject the
evidence of a great number of disinterested and unimpeached witnesses
and found their verdict alone on that of an interested witness who is a
party to the suit. Their verdict should be a just and fair conclusion
from the whole evidence. Ibid. 354.
5. In all that class of cases sounding merely in damages, where the
recital of the facts touch the sympathies or arouse the prejudices to
such an extent as to obscure the understanding of the jury and prevent
them from exercising their better judgment, it is the plain duty of
courts to supervise their verdict and see that it is the conclusion of
that deliberate judgment that ought to characterize all judicial proceed-
ings, and not the result of passion or prejudice. Ibid. 354.
6. When there is no evidence at all as to any essential element of a
cause of action or defense, or the verdict is manifestly against the weight
of evidence, this court will interfere and set the verdict aside and grant
a new trial. Stenger v. Swartwout, 257.
7. Unless a verdict is manifestly against the evidence, and is to be
NEW TRIALS. VERDICT AGAINST THE EVIDENCE. Continued.
attributed to the passion or prejudice of the jury, or to a misapprehen-
sion of the facts, the judgment thereon should not be disturbed. Chi-
cago City Railway Co. v. Young, 238.
8. When the evidence is conflicting, it is the province of the jury
to weigh it, and give credence to such portions as they believe to be
true, and reject the balance; and in such a case their finding will not
be disturbed unless it is manifestly against the evidence. Bourne v.
Stout, 261.
9. Where the whole case turns upon the evidence of a party to the
suit, and that of an agent of the adverse party, and their testimony dif-
fers as to important facts, this court will not grant a new trial because
the jury have given credit to the testimony of the agent. Newlan v.
Lombard University, 195.
10. Where the only witnesses examined upon the point in issue are
the two parties to the suit, and their testimony is flatly contradictory,
the court will not undertake to say which witness the jury ought to
have credited. Reynolds v. McCormick, 412.
11. When the testimony in respect to a material fact is contradic-
tory, and can not be reconciled, as the jury have the advantage of judg-
ing from the manner, appearance, and interest of the witnesses, this
court will not disturb their finding. Robinson et al. v. Parish, 130.
12. In an action against a city to recover damages to the plaintiff's property,
it appeared the city had constructed a sewer terminating near a tract
of about fifty acres of plaintiff's land, whereby the offal and filth of a
portion of the city were discharged and flowed over part of the tract, cut-
ting off about six acres; but the work, at the time of the trial, was so
changed that it was no longer a nuisance, and it did not appear that
plaintiff or his family had suffered any considerable annoyance; but the
principal claim and proof of damage was based upon an assumption of
an injury in being prevented from effecting sales of the lands for resi-
dences. The jury rendered a verdict for $1,900 damages: Held, under
the circumstances, to be grossly excessive, and ground for a new trial.
City of Jacksonville v. Lambert, 519.
13. In an action for personal injuries. In an action on the case against
a city railway company to recover damages for personal injury resulting
from being ejected and thrown from a street car by the servants of the
company, it appeared that the plaintiff got up immediately after he was
thrown upon the ground, pursued and overtook the car, and walked a
considerable distance the same evening; went to work the next day, as
usual, and, when examined some days afterward, there was found no
abrasion, contusion, or external injury; and the whole evidence failed
to show that he had received any serious and permanent injury; and it
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