Murphy v. Chicago, Milwaukee & St. Paul Railway Co., 210 Ill. App. 188 (1918)

April 3, 1918 · Illinois Appellate Court · Gen. No. 23,381

210 Ill. App. 188

Abstract of the Decision.

Jennie Murphy, Administratrix, Plaintiff in Error, v. Chicago, Milwaukee & St. Paul Railway Company, Defendant in Error.

Gen. No. 23,381.

(Not to he reported in full.)

Error to the Superior Court of Cook county; the Hon. Richard E. Burke, Judge, presiding.

Heard in the Branch Appellate Court at the October term, 1917.

Affirmed.

Opinion filed April 3, 1918.

Statement of the Case.

Action by Jennie Murphy, administratrix de bonis non of the estate of Patrick Murphy, deceased, plaintiff, against the Chicago, Milwaukee & St. Paul Railway Company and the Car Loading and Unloading Association, defendants, to recover for the wrongful death of deceased. From a judgment entered on a verdict in favor of plaintiff against the Car Loading and Unloading Association for $7,625, and finding the railroad company not guilty, plaintiff brings error.

Abstract of the Decision.

1. Negligence, § 213 ^* —when instruction on liability of one defendant for negligence of another not misleading. In an action against a railroad company and a car loading and unloading association to recover for the death of a teamster employed by another, due to a heavy roll of paper falling off a truck which the association was using to convey the paper through the door of the railroad warehouse to deceased, and striking him, an instruction that the jury could not hold one defendant liable for the negligence of the other, and that they could not find both defendants guilty on evidence which showed the guilt of but one defendant, was not misleading.

2. Negligence, § 207*—when instruction on care required of railroad as to floor of warehouse not erroneous. In an action against a railroad company owning a warehouse and a car loading and unloading association to recover for the death of a teamster employed by another, due to a heavy roll of paper falling off the truck which the association was using to convey the paper through the door of the warehouse to deliver to deceased, because of defects in the floor of the warehouse, an instruction that the railroad company was not required to furnish a floor in an absolutely perfect condition, but if the jury believed from the evidence that the floor was of such ordinary character as reasonably prudent persons in the exercise of ordinary care would maintain for such purpose, then the railroad company should be found not guilty, held not to be improper.

3. Appeal and ebbob, § 1544*—when instruction on negligence in care of floor of railroad warehouse not reversibly erroneous. In an action tq recover for the death of a teamster alleged to be due to the fall of a heavy roll of paper from a truck which a car loading and unloading association was using to deliver the paper to deceased from the railroad freight warehouse, because of a defect in the floor of the warehouse, an instruction that if the jury believed from the evidence that the floor was in such condition that by the use of ordinary care the paper roll in question would have been safely trucked over it the railroad company was not liable, held to be erroneous, but not reversibly so, in view of all the instructions and the simplicity of the facts in the case.

Matthew P. Brady, for plaintiff in error.

Hay & Brown, for defendant in error; O. W. Dynes, of counsel.

* See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, sanie topic and section number, *

* See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

Mr. Justice O’Connor

delivered the opinion of the court.

4. Negligence, § 205 ^* —when instruction on required proof of negligence of railroad as to defects in warehouse not erroneous. In an action to recover for the death of a teamster alleged to be due to the fall of a heavy roll of paper from a truck which defendant car loading and unloading association was using to deliver the paper to deceased from the defendant railroad’s freight house, because of a defect in the floor of the freight house, an instruction setting out the substance of the first count in the declaration and telling the jury that plaintiff must prove such charge by a preponderance of the evidence to recover thereunder, held not erroneous on the ground that the declaration averred that defendant railroad company “permitted divers holes and openings to be and remain” in the floor, but the proof of one hole, if it contributed to the injury, was sufficient.

5. Instructions, § 87*—when instruction on preponderance of evidence in action for negligent death not erroneous. In an action for negligent death, an instruction that plaintiff, to recover, must establish her case by a preponderance of the evidence, .that if the evidence was equally balanced or if the jury were in doubt or unable to say on which side the preponderance of the evidence lay, or if the preponderance was against the plaintiff, the verdict should be not guilty, was not misleading on the ground that it did not restrict the evidence to the issues essential to the maintenance of the action, nor point out the issues necessary to be established by a preponderance of the evidence to entitle the plaintiff to recover, the jury being specifically advised that all the instructions must be considered as a whole and that they should apply them to the facts and not detach or separate one instruction from any of the others.