Appeal from the Circuit Court of Kane County; the Hon. CHARLES
G. SEIDEL, Judge, presiding. Reversed and remanded.
MR. PRESIDING JUSTICE MORAN DELIVERED THE OPINION OF THE COURT.
Rehearing denied September 18, 1967.
On October 16, 1964, plaintiff's decedent was killed in an intersection collision at Route 47 and Plato Road in Kane County. Plaintiff, as Administrator of the Estate of Charles Raymond Maki, Deceased, filed a three-count complaint, basing her cause of action upon the Wrongful Death Act. (Ill Rev Stats 1965, c 70 §§ 1 and 2.) Count three of her complaint did not allege that the plaintiff's decedent was in the exercise of ordinary care for his own safety at the time of the collision in question, but did allege "that at times relevant hereto if there was any negligence on the part of the plaintiff or the plaintiff's decedent it was less than the negligence of the defendant, Calvin Frelk, when compared."
The defendant moved to dismiss count three for failure to state a cause of action because the plaintiff failed to allege due care on behalf of plaintiff's decedent. This motion was allowed and the plaintiff appealed directly to the Supreme Court on the theory that the Illinois rule of contributory negligence was against the Fourteenth Amendment of the United States Constitution and article II, sections 2 and 19 of the Illinois Constitution. Our Supreme Court entered, in part, the following order.
"In our opinion such a claim (which referred to plaintiff's theory and reasoning) does not give rise to a constitutional question of such a nature as to give this Court jurisdiction on direct appeal. There remains for consideration the question of whether, as a matter of justice and public policy, the rule should be changed. On the Court's own motion the cause is transferred to the Appellate Court for the Second District." (Emphasis added.)
The doctrine of contributory negligence as a complete bar to recovery has had a long and varied history. It has been stated in detail by Dean Leon Green in "Illinois Negligence Law," 39 Ill L Rev 36, 116, 197 and 40 Ill L Rev 1. Another review was prepared by Ernest A. Turk, 28 Chi-Kent L Rev 189 and 304.
The doctrine originated in England in 1809 in the case of Butterfield v. Forrester, 11 East 60, 103 Eng Rep 926, wherein the defendant, who was repairing his house, had left a pole projecting across part of the highway and the plaintiff, while riding home at dusk, did not see the pole, rode into it and was thrown from his horse and thereby injured. The court, speaking through Lord Ellenborough, held that:
"A party is not to cast himself upon an obstruction which has been made by the fault of another, and avail himself of it, if he do not himself use common and ordinary caution to be in the right. In cases of persons riding upon what is considered to be the wrong side of the road, that would not authorise another purposely to ride up against them. One person being in fault will not dispense with another's using ordinary care for himself. Two things must concur to support this action, an obstruction in the road by the fault of the defendant, and no want of ordinary care to avoid it on the part of the plaintiff."
There has been much speculation as to why the rule found such ready acceptance in later decisions both in England and in the United States. The fact of the matter is that it was during the rise of the Industrial Revolution that the doctrine of contributory negligence developed. There is reason to believe that the courts found in this defense, along with the concepts of duty and proximate cause, a convenient instrument of control by which the liabilities of the rapidly growing industries were curbed and kept within bounds. However, today the great majority of these cases are now heard by an Industrial Commission and negligence of the plaintiff is not an issue. Ill Rev Stats 1965, c 48, §§ 138.1-138.28; Decatur Railway & Light Co. v. Industrial Board of Illinois, 276 Ill. 472, 477, 114 N.E. 915 (1917); Imperial Brass Mfg. Co. v. Industrial Commission, 306 Ill. 11, 14, 137 NE 411 (1922).
The history of contributory negligence in Illinois is found through a review of Illinois case law. The Illinois Supreme Court in Aurora Branch R. Co. v. Grimes, 13 Ill. 585, 587 (1852) followed the Butterfield case and added the requirement that the burden of proof is upon the plaintiff to show not only negligence on the part of the defendant, but also that he exercised proper care and circumspection; or, in other words, that he was not guilty of negligence. In the next few years the decisions involving last clear chance, Moore v. Moss, 14 Ill. 106, 110 (1852), degrees of negligence, Chicago & Mississippi R. Co. v. Patchin, 16 Ill. 198, 203 (1854), and proximate cause, Joliet & N.I.R. Co. v. Jones, 20 Ill. 221, 227 (1858), created a confusing background. In Galena & C.U.R. Co. v. Jacobs, 20 Ill. 478 (1858), Justice Breese reviewed these decisions in a case involving a four and one-half-year-old boy who was run over by a railroad locomotive. The court disagreed with the Butterfield case, and adopted a comparative negligence theory in its place. At pages 490-491 the court began with the following fundamental premise:
"This, and all the cases subsequent, to which we have referred, have one common basis, and that is found in the old law maxim that `no man shall take advantage of his own wrong or negligence' in his prosecution or defense against another."
The court concluded that liability does not depend absolutely on the absence of all negligence on the part of the plaintiff but upon the relative degrees of care or want of care as manifested by both parties and went on to say at pages 496-497:
". . . 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. Although these cases do not distinctly avow this doctrine in terms, there is a vein of it very perceptible, running through very many of them, as, where there are faults on both sides, the plaintiff shall recover, his fault being to be measured by the defendant's negligence, the plaintiff need not be wholly without fault. (Citations omitted.) We say, then, that in this, as in all like cases, the degrees of negligence must be measured and considered, and whereever 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."
Thus, in 1858, Illinois became a state which followed the doctrine of comparative negligence. In 1870, in the case of Illinois Cent. R. Co. v. Baches, 55 Ill. 379, 389-390, the court held:
"The seventh of appellee's instructions is not accurate, as it nowhere limits or defines the duty of deceased. Under this instruction, the jury were required to find for the plaintiff, although deceased might have been guilty of negligence equal to that of appellants. Such has never been recognized as the rule of law in this class of cases. This court refused to follow those authorities which hold, that if a plaintiff is guilty of any negligence which contributes to the injury, he could not recover, but announced the rule, that although he might be guilty of negligence, still, if the defendant was guilty of a higher degree of negligence, which, when compared with that of the plaintiff, that of the latter was greatly disproportioned or slight, he still might recover. But we are not inclined to extend the rule, as there is no warrant in the common law for allowing the plaintiff any greater latitude. He should use prudence and care, but failing to do so, and ...