The instruction is also misleading wherein it informs the jury that in order for defendant to establish its plea of contributory negligence “it is not sufficient that the jury may believe from the evidence that plaintiff was simply guilty of negligence,” and as qualified or explained, by what follows, does not correctly declare the law. The negligence to defeat a recovery must be a proximate cause for the injury, but need not be the sole proximate cause.
As the evidence on the issue of contributory negligence was very clear, we think the errors in this instruction prejudicial and must cause a reversal.[[181]]
Judgment reversed, and cause remanded.
Breese, J., in GALENA, &c. R. Co. v. JACOBS
(1858) 20 Illinois, 478, 496–497.
[After citing decisions in other jurisdictions.] It will be seen from these cases that the question of liability does not depend absolutely on the absence of all negligence on the part of the plaintiff, but upon the relative degree of care or want of care as manifested by both parties; for all care or negligence is at best but relative, the absence of the highest possible degree of care showing the presence of some negligence, slight as it may be. The true doctrine, therefore, we think, is, that in proportion to the negligence of the defendant should be measured the degree of care required of the plaintiff; that is to say, the more gross the negligence manifested by the defendant, the less degree of care will be required of the plaintiff to entitle him to recover.... We say, then, that in this, as in all like cases, the degree of negligence must be measured and considered, and whenever it shall appear that the plaintiff’s negligence is comparatively slight and that of the defendant gross, he shall not be deprived of his action.[[182]]
United States Compiled Statutes, 1913, § 8659.
In all actions hereafter brought against any such common carrier[[183]] by railroad under or by virtue of any of the provisions of this Act to recover damages for personal injuries to an employee, or where such injuries have resulted in his death, the fact that the employee may have been guilty of contributory negligence shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee: Provided, That no such employee who may be injured or killed shall be held to have been guilty of contributory negligence in any case where the violation by such common carrier of any statute enacted for the safety of employees contributed to the injury or death of such employee.[[184]] (Act of April 22, 1908, c. 149, § 3, 35 Stat. L. 66.)
England, Workmen’s Compensation Act, 1906, § 1 (c.)
If it is proved that the injury to a workman is attributable to the serious and wilful misconduct of that workman, any compensation claimed in respect of that injury shall, unless the injury results in death or serious and permanent disablement, be disallowed.[[185]]