Devine v. Chicago Railways Co.

Abstract of the Decision. 1. Negligence, § 96*—when a child cannot he charged with contributory negligence. A child under seven years of age is deemed incapable of exercising care, and contributory negligence .cannot be imputed to him. 2. Negligence, § 218*—when instruction erroneous as assuming facts. Where there is no evidence that plaintiff's intestate was “between the age of six and seven years,” or under seven years of age, an instruction assuming that such a fact exists is misleading and erroneous. 3. Negligence, § 208*—when instruction erroneous as omitting element of due care. Where several instructions directed a verdict for the plaintiff if the jury found the facts as therein severally stated, but each instruction omitted entirely the element of the exercise of ordinary care by the deceased for his own safety, the instructions were erroneous and the error could not be cured by other instructions. 4. Instructions, § 119*—when instruction erroneous as not based on evidence. An instruction that submits it to the jury to find if a certain fact exists virtually tells them that there is evidence tending to prove such fact, and if there is no evidence tending to prove it the instruction is calculated to mislead the jury and is erroneous.

Appeal from the Circuit Court of Cook County; the Hon. Harry M. Waggoner, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.