William Wheeler Thornton.

A treatise on the Federal employers' liability and safety appliance acts, and on the federal statutes on hours of labor, including Interstate commerce commission's rules and diagrams for equiments of cars online

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able in point of law, according to
the most modem authorities."

In Lynch v. Nurdin the evi-
dence showed that the defendant
left his cart and horse unattended
in a thronged thoroughfare, and
the plaintiff, a child of seven
years, got upon the cart in play.
Another child incautiously led the
horse on, and the plaintiff was
thereby thrown down and hurt.
Chief Justice Denman held that
the plaintiff was liable in an ac-
tion on the case, though the
child was a trespasser and con-
tributed to the injury by his own
act; that though he was a co-op-
erating cause of his own misfor-
tune by doing an unlawful act, he
was not deprived of his remedy;
and that it was properly left to
the jury whether the defendant's
conduct was negligent and the in-
jury caused by his negligence.

Chief Justice Denman, in com-
menting upon the case, concludes
by saying: "His [the child's] mis-
conduct bears no proportion to
that of the defendant, which pro-
duced it."



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150 FEDERAL EMPLOYERS' LL\BIUTy ACT.

Each party is bound, whibt pursuing their legal business, to
exercise a due regard for the rights of others. And when
each is equally at fault, and both parties negligent, the in-
jured party has no right to recover for an injury he has thus
contributed to produce. Each party must employ all reason-
able means to foresee and prevent injury. Whether the party
receiving the injury has acted with even a slight degree of
negligence contributing to produce the injury, to recover
he must show that the other party has been guilty of gross
negligence. Whilst the party upon whom the injury is in-
flicted must use all reasonable care, he is not held to the
highest degree of precaution of which the human mind is
capable. Nor to recover, need he be wholly free from negli-
gence, if the other party has been culpable. "^^

§89. Negligence a relative term.— ''In applying the
measure of slight and gross negligence to the acts of
the respective parties charged to have been negligent/'
said Justice Scholfield of the Supreme Court of Illi-
nois, **it is, of course, always to be held in remembrance
that the term 'negligence' is, itself, relative, 'and its appli-
cation depends on the situation of the parties, and the degree
of care and diligence which the circumstances reasonably im-
pose.'*® The question, therefore, in the present instance,
related to the measure of care, under the circumstances shown
by the evidence to have existed, imposed upon the respective
parties.*® Whether, therefore, the plaintiff's intestate failed

*' Chicago, etc., R. Co. v. Dewey was killed. A recovery was de-
(1861), 26 111. 255. This was a nied, because the facts showed he
case where the deceased attempted was guilty of gross negligence and
to pass between two sections of a the defendant was not guilty of
freight train, in the night time, in any negligence for its engineer
order to reach an approaching had a right to presume no one
passenger train he desired to would attempt to pass between the
board, and was caught between two freight train sections,
the btunpers of two freight cars *• Citing Cooley on Torts, 630.
of the two sections of the freight *• Chicago, etc., R. Co. v. John-
train backing up together, and son, 103 111. 512.



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CONTRIBUTORY AND COMPARATIVE NEGLIGENCE. 151

to exercise ordinary care, is to be determined — and there can
be no presumption under these circumstances otherwise —
with reference to Ms rights, dirties and obligations, and the
rights, duties and obligations of the defendant, under the
peculiar circumstances here in evidence. Being thus deter-
mined that he has failed to exercise ordinary care, the legal
conclusion is, he is guilty of negligence."*^®

§90. Illinois rule extended.— The rule of comparative
negligence as first announced in Illinois, namely, **that there
must be negligence on the part of the defendant, and no
want of ordinary care on the part of the plaintiff, and where
there has been negligence in both parties, still the plaintiff
may recover, where his negligence is slight, and that of the
defendant is gross, in comparison with that of the plaintiff,'*
was at a later period ** extended to include cases where the
negligence of the plaintiff had contributed in some degree to
the injury complained of.*' This was **upon the principle
that, although a party may have himself been guilty of negli-
gence, it does not authorize another to recklessly and wan-
tonly destroy his property or commit a personal injury.'*'*

§ 91.— Ordinary care wanting— Plaintiff's n^ligence
slight.— The fact that the negligence of the plaintiff was
slight did not enable him to recover, if he had not observed
ordinary care to avoid the injury and an instruction which
omitted the statement that the plaintiff must have used ordi-
nary care was held erroneous. **The fact that the defendant
may have been guilty of gross negligence does not authorize a
recovery. A duty rests on the injured party to exercise ordi-
nary care, and, unless that duty has been observed, a recovery
cannot be had. In other words, ordinary care is an essential
element on the part of the injured party to authorize a re-

•• Chicago, etc., R. Co. v. John- R. Co. v. Gretzner, 46 111. 75;

son, 103 111. 612. Rockford, etc., R. Co. v. CoulUs,

"Chicago, etc., R. Co. v. Van 67 111. 398.
Patten, 64 111. 610; Chicago, etc..



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152



FEDERAL EMPLOYERS* LIABIUTY ACT.



covery. But that element was omitted from the instruction
[given] ; and the jury was, in substance, told that the plain-
tiff, although guilty of some .negligence, might recover, if the
negligence of the defendant was gross, and the negligence of
the plaintiff was slight, in comparison with the negligence of
the defendant. We do not regard this as a correct proposi-
tion of law, or as a correct enunciation of the doctrine of
comparative negligence. The plaintiff may have failed to
exercise ordinary care when his acts and conduct are con-
sidered in the light of all the evidence, and yet, under the
terms of this instruction, he might recover if his negligence
was only slight when compared alone with that of defendant.
In considering the doctrine of comparative negligence, ex-
pressions may be found in several cases which might sustain
the instruction, where it has been said, in a general way, that
an injured party, guilty of slight negligence, may recover,
where the negligence of the defendant was gross, and the
negligence of the plaintiff slight, in comparison with the negli-
gence of the defendant but it has always been under-
stood, and the declaration has always been made with the
understanding that in no case can a recovery be had un-
less the person injured has exercised ordinary care for his
safety.''"



"Willard v. Swanson, 126 IlL
381; 18 N. E. 548; affirming 12
Bradw. (III.) 631; Fisher v.
Cook, 125 111. 280; 17 N. E. 763.

This instruction was held to be
correct : "If the jury believe 'rom
the evidence that the plaintiff was
injured as charged in the decla-
ration, and that he or the person
who was driving the buggy in
which h%5 sat was guilty of some
negligence which contributed t»
said injury, but that said negli-
gence of the plaintiff or of said
person driving the buggy, if any,
was slight, and that the defend-
ant, by his servant, was guilty of



negligence, as charged in the dec-
laration, and that said negligence,
if any, of said defendant, caused
said injury to the plaintiff^ and
that said negligence, if any, of
the defendant was gross, and the
negligence of the said plaintiff, or
the person driving said buggy,
was slfgftt when compared there-
with, then the jury are instructed
that such slight negligence on the
part of the pi air tiff, or the person
driving said buggy, if you find
from the evidence it was slight,
will not prevent the plaintiff from
recovering in this case." In an-
oither instruction the sentence.



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CONTRIBUTORY AND COMPARATIVE NEGLIQENCB. 153

§92. Want of ordinary care defeats a recovery. — ^The
want of ordinary care on the part of the plaintiff could
not be construed as "slight negligence" on his part. Speak-
ing of erroneous instructions on this point that had been
given, Justice Scholfield of Illinois, in a case in the Su-
preme Court of that state, said: **The utmost degree of
negligence merely — and it is of this only and not of tres-
pass or other wrongs that the instructions speak— of which
the defendant can be guilty, is gross negligence. The plain-
tiff's negligence, then, by the very terms employed, is ordi-
nary, and that of the defendant gross, in comparison with
each other. The language employed, in effect, says, although,
as to this particular act, the plaintiff's intestate was guilty of
ordinary negligence, and the defendant guilty of gross negli-
gence, still, if the jury believe the plaintiff's intestate's
negligence was slight — ^that is, that it was not what the very
terms employed admit it to have been — ^and that of the de-
fendant gross, in comparison with each other, they will find
the defendant guilty. Surely it needs no demonstration that
if, as to a particular act, the negligence of the plaintiff was
ordinary and that of the defendant gross, their relation is



"If the jury find from the evi
denoe that neither the plaintiff
nor the person who was driving
the buggy in which he sat was
guilty of any negligence which
contributed to said injury," was
sufficient to cover the charge that
plaintiff must have exercised or-
dinary care to avoid the injury.
Chrisfin v. Erwin, 126 lU. 619; 17
N. B. 707.

An instruction on comparative
negligence which omitted to state
that the plaintiff must have
been in the exercise of due care
when injured to avoid the injury
was deemed not erroneous if in
another instruction that charge wan
given. Chicago, etc., R. Co. v.



Fetsam, 123 111. 518; 15 N. E.
109; Chicago, etc., R. Co. v. John-
son, 116 111. 206; 4 N. E. 381;
Chicago, etc., R. Co. v. Ryan, 70
111. 211; S. C. 60 111. 172.

An instruction to the jury that
if they **believe from the evidence
that the plaintiff was wholly with-
out negligence, yet, if you further
believe from the evidence that the
defendant was guilty of gross neg-
ligence, while the plaintiff was
guilty of slight negligence, then
such slight negligence will not
prevent a recovery," was erro-
neous, because it assumes that the
plaintiff exercised ordinary care.
Toledo, etc,, R. Co. v. Cline, 136
111. 41; 26 N. £. 846.



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154



FEDERAL EMPLOYERS' LIABILITY ACT.



not changed by conparing them with each other. The same
evidence that determines the one is gross and the other ordi-
nary, fixes their relative degrees with reference to each
other.'' ^»



"Chicago, etc., R. Co. v. John-
eon, 103 111. 612.

"It seems to be thought what is
said in Stratton v. Central City
Horse Ry. Co. 95 111. 26, in criti-
cising certain instructions there
given, sustains the ruling below
in regard to tliese instructions.
This is a misapprehension. In
those instructions it was said a
failure to exercise ordinary care
was gross negligence, and in one
it was said no action would lie if
the plaintiff failed to exercise or-
dinary care, unless the defendant
inflicted the injury. We have be-
fore herein shown both these po-
sitions to be inaccurate. The fail-
ure to exercise ordinary care is
only ordinary negligence, and al-
though a plaintiff might not ex-
ercise ordinary care, yet the de-
fendant would be liable for injur-
ing him if his act causing injury
was so willfully and wantonly reck-
less as to authorize the presump-
tion of an intention to injure gen-
erally, notwithstanding he might
have had no special intention to
injure the plaintiff." Chicago,
etc., R. Co. V. Johnson, 103 111.
612.

**It must be conceded that the
doctrine of comparative negli-
gence has no place in a case where
the plaintiff has failed to exercise
ordinary care." "The failure to
exercise ordinary care is more
than slight negligence." Toledo,
etc., R. Co. V. Cline, 31 111. App.
563.
There must have l^een "no want



of ordinary care on the part of
the plaintiff." Chicago, etc., R.
Co. v. Gretzner, 46 111. 74 ; Illinois,
etc., R. V. Simmons, 3b 111. 242;
Western U. T. Co. v. Quinn, 66
111. 319; Centralia v. Krouse, 64
111. 19; Chicago, etc., R. Co. v.
Gregory, 68 111. 272; Chicago, etc.,
Ry. Co. V. Bentz, 38 111. App. 486;
Illinois, etc., R. Co. v. Green, 81
111. 19; Quincy v. Barker, 81 111.
300; Toledo, etc., R. Co. v. Cline,
135 111. 41; 25 N. E. Rep. 846.

Plaintiff had the burden to
show that the defendant was neg-
ligent and that he himself used
due care. Chicago, etc., R. Co. v.
Hazzard, 26 111. 373; Chicago, etc.,
R. Co. V. Dewey, 26 111. 255; Chi-
cago, etc., R. Co. v. Gretzner, 46
111. 74; .Chicago, etc., R. Co. v.
Simmons, 38 111. 242; Illinois, etc.,
R. Co. V. Slatton, 54 111. 133; Ohio,
etc., R. Co. V. Shonefelt, 47 111.
497; Chicago, etc., R. Co. v. Cass,
73 111. 394; Kepperlv v. Ramsden,
83 111. 354.

If it was not shown that the
plaintiff did not use ordinary care,
or if it was shown that he did not,
then the rule of comparative neg-
ligence had no place in the case.
Garfield Mfg. Co. v. McLean, 18
HI. App. 447; Chicago, etc., R,
Co. V. Thorspon, 11 111. App. 631;
Chicago, etc., R. Co. v. Rogers, 17
HI. App. 638; Chicago, etc., R.
Co. V. White, 26 HI. App. 686;
Chicago, etc., R. Co. v. Flint, 22
111. App. 502; Chicago, etc., R. Co.
V. Dougherty, 12 111. App. 181;
Union, etc., Co. v. KolUher. 12



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CONTRIBUTORY AND COMPARATIVE NEGLIGENCE. I55

§ 93. Failure to exercise ordinary care more than slight
negligence. — **The word * diligence/ as used in the defini-
tions of the degrees of negligence to which we have referred,"
said Justice Scholfield of Illinois, **i8 synonymous with
*care.' This is shown by the text in Story immediately fol-
lowing the definitions quoted.*** It is there said: 'For he
who is only less diligent than very careful men, cannot be
said to be more than slightly inattentive ; he who omits ordi-
nary care, is a little more negligent than men ordinarily are ;
and he who omits even slight diligence, falls in the lowest de-
gree of prudence, and is deemed grossly negligent.' It can
not, then, be legally true, that where the plaintiff fails to
exercise ordinary care, and the defendant is guilty of negli-
gence only, the plaintiff's negligence is slight and that of the
defendant gross in comparison with each other."***

§94. Ordinary and slight negligence in their iK>pnlar
sense.— ** Giving the words their popular sense, it would
rather seem that ordinary negligence would be such negli-
gence as men of common prudence indulge in, which betokens
only the exercise of ordinary care, and not the want of ordi-
nary care, as is suggested. This, where the law requires only



m. App. 400; Wabash, etc., R. Co.
V. Moran, 13 III. App. 72; Unioii,
etc., Co. ▼. Monaghan, 13 111. App.
148; Toledo, etc., R. Co. v. Cline,
135 ni. 41; 26 N. E. Rep. 846.

But the plaintiff did not have
to exercise the highest degree of
oare. Chicago, etc., R. Co. v.
Payne, 59 111. 534; Terre Haute,
etc., R. Co. V. Voelker, 31 111. App.
314.

It was error to say to the jury
thai the plaintiff could not re-
coiwr unless they "believe from
the evidence that the injury com-
plained of was caused by the neg-
ligence of the defendant, and the
plaintiff was without fault," for



that was stronger than the law
justified, being an ignoring of the
doctrine of comparative negligence.
Ohio, etc., R. Co. v. Porter, 92 111.
437.

•***The definition of gross negli-
gence itself proves that it is not
intended to be the subject of com-
parison. It is 'the want of slight
diligence.' Slight negligence is
'the want of great diligence,' and
intermediate, then, is ordinary
negligence, which is defined to be
'the want of ordinary diligence.'"
Story on Bailments, Sec. 17.

"Chicago, etc., R. Co. v. John-
son, 103 111. 512.



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156 FEDERAL EMPLOYERS' LIABILITY ACT.

ordinary care, is not negligence at all, for in law negligence
is always faulty. It is the failure in some degree to use
that care which the law requires under the circumstances.
In a case where the law demands only the use of ordinary
care, and ordinary care is actually exercised, there is in law
no negligence whatever. In such case it is not true that the
want of great diligence is in law slight negligence. In the
popular sense of the words, slight negligence is a slight want
of the care which the circumstances demand. A man ob-
viously, therefore, may in such case fail slightly to use ordi-
nary care, and in the popular sense of the words he would
be guilty of slight negligence, and only slight negligence, and
this, although he did not do all that ordinary care required.
And so of 'gross negligence.' Its popular meaning is a
very great failure to use the care which the law requires.
It is not essential to gross negligence that there shall be an
utter want of care, or, in the language of Story,'* *the want
of* even 'slight diligence.* The exercise of slight diligence,
where the highest degree of care is by law required, may still
leave the party guilty of gross negligence — ^that is, guilty of
a very great failure to exercise the highest care." *^

§ 95. Mere preponderance of defendant's negligence not
sufficient— Defendant's clearly exceeding plaintiff's negli-
gence. — ^The mere fact that the defendant's negligence
exceeds that of the plaintiff's did not enable the plaintiff to
recover. It was only where his negligence was slight as com-
pared with that of the defendant's. ''But he cannot recover
unless the negligence of the defendant clearly and largely
exceeds his.'' ''Under the instruction given,"* although

••story on Bailments, Sec. 17, time in question, guilty of some

is referred to. slight negligence either in the

" Justice Dickey, in his dissent- management of his team,- or in his

ing opinion, in Chicago, etc., R. efforts to escape contact with the

Oo. V. Johnson, 103 111. 612. engine, still, if they further be-

•^"Even though the jury should Hew, from the evidence, that the

believe, from the evidence, that negligence of the railway com-

the said Horace Clark was, at the pany, at said time, clearly ex-



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CONTRIBUTORY AND COMPARATIVE NEGLIGENCE. I57

there may have been but slight negligence on the part of the
company, and some negligence on the part of the deceased,
still, if the negligence of the company clearly exceeded that
of deceased, although in the smallest degree, plaintiff might
recover. Or, under a case where there is gross negligence
on the part of both plaintiff and defendant, still, if that of
the defendant was clearly, though in the slightest degree,
the greater, a recovery could be had under such instruction.
This has not been announced by this court as the law, in
any case, and to do so would be unreasonable, and work
great injustice and wrong. It is not the law, and hence
cannot be sanctioned as such. • • • We have no doubt
this instruction misled the jury in their finding, and it should
not have been given.'* "

§ 96. Oross and slight n^ligence distinguished.— In 1882
the Supreme Court undertook to distinguish ** gross" and
** slight" negligence by instituting a comparison between
them. **In holding that the plaintiff may recover," said that
court, **in an action for negligence, notwithstanding he has
been guilty of contributive negligence, where his negligence
is but slight and that of the defendant gross in comparison



ceeded any negligence, if such neg-
ligence has been proven, of said
Clark, and was the immediate
cause of his death, then the jury
must find the railway company
guilty."

•Chicago, etc., R. Co. v. Clark,
70 111. 276; Illinois Cent. R. Co.
V. Backus^ 56 Iii. 379; Chicago,
etc., R. Co. V. Gretzner, 46 111. 83 ;
Illinois, etc., R. Co. v. Triplett,
38 111. 485.

This instruction was held erro-
neous: "The court further in-
structs the jury that if they be-
lieve, from the evidence, that Gil-
bert H. Dimick was killed by the
defendant's locomotive engine and



train while be was traveling upon
a highway which crossed the de-
fendant's railroad there, although
the jury may believe, from the
evidence, that the deceased was
himself guilty of some negligence
which may have, in some degree,
contributed to the injury, yet, if
the jury further believe, from the
evidence, that the negligence of
the defendant was of a higher de-
gree, or so much greater than
that of the deceased that that of
the latter was slight in compari-
son, the plaintiff is entitled to
recover in this action." Chicago,
etc., Ry. Co. v. Dimick, 96 111. 42.



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158



FEDERAL EMPLOYERS LIABILITY ACT.



with each other, it must, of course, be understood the terms
'slight negligence' and 'gross negligence' are used in their
legal sense, as defined by common law judges and text
writers, for otherwise the terms would convey no idea of a
definite legal rule. As defined by those judges and writers,
these terms express the extremes of negligence. Beyond
gross and slight there are no degrees of negligence. 'Gross
gross,' 'grosser gross,' and 'grossest gross,' and 'slight slight,'
'slighter slight,' and 'slightest slight,' are absurd, and, in a
legal sense, impossible terms. What is less than slight negli-
gence the law takes no cognizance of as a ground of action,
and beyond gross negligence the law, while recognizing there
may be liability for a trespass because of a particular in-
tention to do wrong, or of a degree of willful and wanton
recklessness which authorizes the presumption of a general
intention to do wrong, recognizes no degree of negligence.
The definition of gross negligence itself proves that it is not
intended to be the subject of comparison. It is, 'the want of
slight diligence.' Slight negligence is, 'the want of great
diligence,' and intermediate there is ordinary negligence,
which is defined to be 'the want of ordinary diligence.' "•^



••Chicago, etc., R. Co. v. John-
son, 103 111. 512, citing Story on
Bailments, Sec. 17; Shearman &
Redfield on Negligence (2d Ed.),
Sees. 16, 17; Oooley on Torts, 631,
and Central Military Tract. R. Co.
V. Rockafellow, 17 111. 641.

The opinion was delivered by
Justice Scholfield; and while Jus-
tice Dickey concurred therein, he
did not concur in that part above
quoted, sayinjj that Justice Story
in his treatise on Bailments, had
not used the terms "gross negli-
gence'* and "slight negligence" in
the senm or in the meaning in
which they had been used in the
previous Illinois case; "nor does
he give the meaning which would



naturally be adopted by a jury in
giving effect to an instruction
given by the court." "Nor do I
concur in the dicta which say
there are and can be no degrees
in gross negligence, and no de-
grees in slight negligence. The
adjectives 'slight' and 'gross' seem
to me to be capable of compari-
son, as most adjectives are. I see
no absurdity in saying 'gross,'
'more gross,' 'most gross,' or
'gross,' 'grosser,' 'grossest,' or
'slight,' 'more slight,' 'slightest.'
In fact, in the quotation from
Story [Story on Bailments, Sec.
17] he speaks of 'infinite shades
of care,' from the 'slightest' mo-
mentary thought to the 'most vig-



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CONTRIBUTORY AND COMPARATIVE NEGLIGENCR I59

§ 97. Plaintiff's negligence compared with defendant's. —

The quotations made show that in those states the com-
parison to be instituted must have been the negligence of the
plaintiff compared with that of the defendant; and not a
comparison of the plaintiff's negligence with what an ordi-
narily prudent and careful man would have done under the
particular circumstances; nor could the defendant's conduct
be compared with what an ordinarily prudent and careful
man would have done under like circumstances. The negli-
gence of plaintiff had to be compared with that of the de-
fendant; and that was where the name of "Comparative
Negligence ' ' had its origin. If the plaintiff 's negligence con-
tributed to the injury, then before he could recover it had
to appear that his negligence was slight in comparison with
that of the defendant's, which had to be gross.'^ And an in-



ilant solicitude.' In fact, the im-



Online LibraryWilliam Wheeler ThorntonA treatise on the Federal employers' liability and safety appliance acts, and on the federal statutes on hours of labor, including Interstate commerce commission's rules and diagrams for equiments of cars → online text (page 25 of 102)