Gould v. Aurora, Elgin & Chicago Railway Co.

The fourth instruction given to the jury at the request of appellee was as follows:

‘‘ The court instructs the jury that if they find from the evidence that the plaintiff has made out his case by a preponderance of the evidence, as alleged in the declaration, then the jury should find the defendant guilty, and assess his damages at whatever sum the evidence shows, if any, under the iiistructions of the court, he has sustained.”

It is argued that this instruction excludes the defense of assumed risk, and that it was therefore error to give it. Appellee was fam'ilar with the place where he was at…