action for assault and battery. There can be no contributory negligence except where the defendant has been guilty of negligence to which the plaintiff's negligence could contribute. An assault and battery is not negligence. The former is intentional; the latter is unintentional. Affirmed.1 SUB-TOPIC D. DEFENDANT'S GROSS COMPArative NegliGENCE 659. GALENA & CHICAGO UNION RAILROAD COMPANY v. JACOBS. (1858. 20 Ill. 478, 496.) BREESE, J. It will be seen, from these [English and American] 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 enable him to recover. . . . We say, then, that in this, as in all like cases, the degree of negligence must be measured and considered, and wherever 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. 660. CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY v. JOHNSON SUPREME COURT OF ILLINOIS. 1882 103 Ill. 512 APPEAL from the Appellate Court for the Second District; heard in that Court on appeal from the Circuit Court of Kendall County; the Hon. CHARLES KELLUM, Judge, presiding. 1 [PROBLEMS: The plaintiff's intestate J. and defendant's agent R. were fighting, J. having made the assault. The defendant, hearing the quarrel, came out and shot and killed J. Is defendant liable? (1899, Tucker v. State, 89 Md. 471, 43 Atl. 778.) The plaintiff's agent shipped Easter lilies from the South to him in New York. Owing to the agent's negligent marking of the box, the lilies were delivered to the defendant, who kept and sold them. Is the defendant liable for the conversion? (1897, Downing v. Outerbridge, C. C. A., 79 Fed. 931.) The plaintiff drove by the defendant's house, where the defendant kept a dog known to be vicious. The plaintiff also knew the dog's viciousness, but carelessly went close to him, and the dog bit him. Is the defendant liable? (1895, Jones v. Carey, 9 Houst. Del. 214, 31 Atl. 976.) The plaintiff erected a staging for work on a house, and as one of the wooden supports he used a bar which he had taken without permission from a fence on the defendant's premises. The defendant, in the plaintiff's absence and without notifying him, took out his bar and brought it home. The staging fell in consequence, when the plaintiff was afterwards working on it, and the plaintiff was injured. Is the defendant liable? (1853, White v. Twitchell, 25 Vt. 620.)] This suit was instituted in the Circuit Court by Thomas L. Johnson, as administrator of Christian L. Johnson, deceased, against the railroad company, to recover damages for the death of the plaintiff's intestate, occasioned, as is alleged, by the negligence of the company in the management and running of a locomotive and train of cars. Upon a trial the plaintiff recovered a judgment for the sum of $1,500, from which the defendant appealed to the Appellate Court for the Second District, where the judgment was affirmed. The railroad company thereupon appealed to this Court. The principal question presented in the case arises upon certain instructions given at the instance of the plaintiff, relating to the measure of care. . . Mr. Charles Wheaton, for the appellant: . . . The instructions given for the plaintiff do not state the law of comparative negligence correctly, and were calculated to mislead. ... Mr. A. C. Little, and Mr. Randall Cassem, for the appellee: . The injured party guilty of want of ordinary care may still recover if the defendant's carelessness has been gross and his slight in comparison therewith. . . . Mr. Justice SCHOLFIELD delivered the opinion of the Court: . . . At the time he received the fatal injury, plaintiff's intestate was in the employ of a firm engaged in the manufacture of the "Marsh Harvester," at the shops of the company of that name, at Plano. For the convenience of those in charge of these shops, a switch had been laid on the grounds of the Marsh Harvester Company, connecting with defendant's main track. . . . It was the duty of the plaintiff's intestate, in conjunction with several others, to take lumber out of the saw room by the door and across the track to another part of the grounds of the "Harvester" Company. While thus occupied, and as he was passing over this switch with a load of lumber on his shoulder, one of the defendant's trains, which was being backed along the sidetrack, struck and instantly killed him... As to the weight of this evidence, it is not our province to express any opinion. . . . Among other instructions given by the Court at the instance of the plaintiff, were the following: . . . "If the jury believe from the evidence that Johnson did not exercise ordinary care, yet that Johnson's negligence was slight and that the negligence of the defendant was gross in comparison with each other, then the plaintiff must recover, and the verdict must be for the plaintiff. . . .” The question here relates simply to the doctrine of comparative negligence in a case wherein the injured party was a coöperative cause of the injury, in other words, where his acts directly contributed, in conjunction with the acts of the defendant, to the injury. . . . In the Jacobs case, 20 Ill. 488, the doctrine of comparative negligence was first announced. In holding the plaintiff may recover 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 with each other, it must of course be understood that 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 negligence 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 intention to do wrong, or of a degree of wilful and wanton, or of a degree of wilful and wanton recklessness which authorizes the presumption of a general intention to do wrong, recognizes no degree of negligence. . . . In applying the measure of slight and gross negligence to the acts of the respective parties charged to have been negligent, it is, of course, always to be held in remembrance that the term "negligence" is, itself, relative, "and its application depends on the situation of the parties, and the degree of care and vigilance which the circumstances reasonably impose" (Cooley, on Torts, 630). It can not, then, legally be true, that where the plaintiff fails to exercise [even] ordinary care, and the defendant is guilty of negligence only, the plaintiff's negligence is slight and that of the defendants gross in comparison with each other, . . . [and yet these instructions would permit the jury so to find.] Whether the plaintiff's intestate fails to exercise ordinary care, is to be determined — and there can be no presumption under these instructions otherwise with reference to his rights, duties and obligations, and the rights, duties and obligations of the defendant, under the peculiar circumstance there in evidence. Being thus determined that he has failed to exercise ordinary care, the legal conclusion is, he is guilty of ordinary negligence. The utmost degree of negligence, merely, and it is of this only, and not of trespass or other wrongs, that the instructions speak, of which the defendant can be guilty, is gross negligence. The plaintiff's negligence, then, by the very terms employed, is ordinary, and that of the defendant gross, in comparison with each other. The language employed, in effect, says that, although, as to this particular act, the plaintiff's intestate was guilty of ordinary negligence, and the defendant guilty of gross negligence, 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 defendant gross, in comparison with each other, they will find the defendant guilty, etc. 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 not changed by comparing them with each other. The ---- same evidence that determines the one is gross and the other ordinary, fixes their relative degree with reference to each other. . . . ... These instructions are clearly erroneous in the respect pointed out, and must necessarily have misled the jury as to the doctrine of comparative negligence. . . . For the error in giving the first, second and third of the plaintiff's instructions the judgment is reversed, and the cause remanded. Judgment reversed. Mr. Justice DICKEY: I concur in the judgment rendered in this case. While the evidence tends to charge the defendant with palpable negligence, still, in my judgment, there is no evidence tending to show gross negligence on the part of defendant, and the turning question in the case in fact seems to be, whether the plaintiff's intestate used ordinary care. In such a case I think it error to submit to the jury the rule of law as to comparative negligence. On this ground the judgment ought to be reversed. There is, however, a line of thought in the opinion prepared by Mr. Justice SCHOLFIELD, which I think a departure from the law as laid down by this Court ever since the decision of the Jacobs case, in 20 Ill. I do not think that the terms "slight negligence," and "gross negligence," as used in the opinion delivered in the Jacobs case, and in the long series of cases which have followed that case, were used in the sense of the definitions quoted from STORY, in his treatise on Bailments. . . . When he says, in § 17, that "ordinary negligence" may be defined to be "the want of ordinary diligence," and "slight negligence" to be "the want of great diligence," and "gross negligence" to be "the want of slight diligence," he surely does not give to these phrases the meaning in which they are used in a common or popular sense, or the meaning in which they have generally been used by this Court in the Jacobs case, and other kindred cases; nor does he give the meaning which would naturally be adopted by a jury in giving effect to an instruction given by the Court. Giving the words their popular sense, it would rather seem that ordinary negligence would be such negligence as men of common prudence indulge in, which betokens only the exercise of ordinary care, and not the want of ordinary care, as is suggested. This, where the law requires only 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. A man obviously, therefore, may in such case fail slightly to use ordinary 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 re ... that is, quired, may still leave the party guilty of gross negligence, guilty of a very great failure to exercise the highest care. Nor do I concur in the dicta which say there are and can be no degrees in gross negligence, and no degrees in slight negligence. The adjectives "slight," and "gross," seem to me to be capable of comparison, as most adjectives are. I see no absurdity in saying "gross," more gross," most gross," or gross," 'grosser," grossest," or "slight," "more slight," "slightest." 66 66 ... I think, therefore, there may be cases in which it may be legally true that the plaintiff has failed in some degree to exercise ordinary care, and that in the same case the defendant has been guilty of gross negligence wherein the plaintiff's negligence may be slight, that is, may consist of a slight failure to use ordinary care, and that of the defendant gross in comparison therewith. To my mind the proposition that a plaintiff's negligence is slight, is not incompatible with the proposition that he has failed in some degree to use ordinary diligence. . . 661. CALUMET IRON & STEEL Co. v. MARTIN. (1885, 115 Ill. 358.) SCHOLFIELD, J. The first instruction given at the instance of appellee is as follows: "The Court instructs the jury that if they shall believe from the evidence that on or about October 1, 1882, the plaintiff's intestate, Patrick Martin, was in the employ of the defendant company as fireman, and that while in the discharge of his duty as such fireman he was using ordinary care and prudence for his personal safety while he was so employed, and that he was injured and killed by reason of the explosion of a certain boiler, caused by negligence of the defendant company, . . . then your verdict should be for the plaintiff. . Counsel for appellant contend this is erroneous, because, secondly, the jury are told that if the intestate used ordinary care and prudence, the plaintiff can recover if the accident was due to the negligence of the company, instead of telling the jury that the plaintiff could recover only in the event that the negligence of the intestate was slight, and that of the defendant gross, in comparison with each other. The contention is not tenable. . . . The ground of the second contention is thus stated by counsel: "It is now the settled law of this Court that a man may exercise ordinary care, and yet be guilty of slight negligence. Therefore, consistently with the hypothesis of ordinary care and prudence on the part of deceased, contained in this instruction, slight negligence might be imputed to him. If so, there could be no recovery, unless the negligence of appellant was gross in comparison with that of deceased, slight negligence not being inconsistent with ordinary care. . . . The error in the contention formulated in the language of counsel, which we have quoted, is in the assumption that the comparative relation of the negligence of the person observing due―i. e. ordinary — care for his personal safety, and of the negligence of the person causing him injury, is not that of slight and gross, within the rule announced in the Jacobs case, 20 Ill. 478, and maintained in other cases governed by the ruling in that case. Within the contemplation of that rule, where one has observed ordinary care with reference to the particular circumstances involved, for his personal safety, he has, even ... |