It was therefore error to instruct the jury on the theory of an accident. (Peters v. Madigan, 262 Ill. App. 417; Mississippi Lime Material Co. v. Smith, 282 Ill. App. 361; Streeter v. Humrichouse, 357 Ill. 234.) In the latter case it is said at page 244: "Turning to the instructions, the fifteenth instruction told the jury that if the death of the decedent was caused through `accident purely' they should find the defendant not guilty. There was no evidence that McGann was injured through accident, alone, not coupled with negligence, and it was error to give this instruction."
We believe there was no warrant for giving Instructions Nos. 10 and 11. Complaint is made of Instruction No. 12 which informs the jury that "the mere happening of the accident . . . raises no presumption of negligence on the part of defendant." Such an instruction was condemned in Mississippi Lime Material Co. v. Smith, 282 Ill. 361, relied upon by plaintiff, because there was nothing in the record there to suggest an accident. Here, there was testimony that a gust of wind blew the ladder from the roof.
In the instant case there are reasonable inferences from the undisputed facts surrounding the occurrence, that plaintiff's fall was due to a mere accident and without negligence on the part of defendant (as denied in defendant's answer). In Mississippi Lime Material Co. v. Smith, 282 Ill. App. 361, cited by plaintiff, the court found that the injuries to deceased were clearly the result of negligence of the defendant, and the instruction referred to by plaintiff is hot set forth in the opinion. Therefore, the authority would not seem to apply to the facts as they appear in this record.
It is a well settled rule of law that each side in any litigation is entitled to have the jury instructed relative to the theory of the law, upon which the case is tried. The only authority cited by the appellant to sustain her contention, that the court erred in giving this instruction, is one from the Fourth District of the Appellate Court entitled the Mississippi Lime Material Co. v. Smith, 282 Ill. App. 361. The appellee also relies upon this case.
While it was for the jury to determine as to whether or not plaintiff's intestate was guilty of negligence that contributed to the injury which resulted in his death, we are impelled to hold that an unprejudiced jury was bound under all the facts and circumstances appearing in the record before us to find that Leoni was in the exercise of due care, both at the time he was struck and immediately prior thereto. Although the verdict of the jury is usually final and binding upon the court as to questions of fact, if it can be seen from an examination of the entire record that the verdict is clearly and manifestly against the weight of the evidence and should have been set aside by the trial court, this court will not hesitate to reverse the judgment on appeal. ( Mississippi Lime Material Co. v. Smith, 282 Ill. App. 361; Donelson v. East St. Louis Suburban Ry. Co., 235 Ill. 625; Connors v. Winke, 200 Ill. App. 351; Williams v. Parmalee Transfer Co., 194 Ill. App. 468.) The verdict in the instant case, in our opinion, could only have been reached as a result of prejudice engendered in the minds of the jury by reason of the injection into this case by defendant of the Workmen's Compensation Act, which well might have caused the jury to believe that plaintiff had been fully compensated for the death of her husband or because the jury was prejudiced or misled by the instructions of the court, several of which were palpably erroneous. It is unnecessary to discuss these instructions in detail because they are so obviously erroneous that the faults therein will in all likelihood not recur upon a retrial of this cause.