The Pa. Co. v. Conlan

• Decision Date: 10 November 1881
• Citation: 101 Ill. 93,1881 WL 10690
• Parties: THE PENNSYLVANIA COMPANYv.KATE CONLAN.
• Court: Illinois Supreme Court

101 Ill. 93

1881 WL 10690 (Ill.)

THE PENNSYLVANIA COMPANY

v.KATE CONLAN.

Supreme Court of Illinois.

Filed at Ottawa Nov. 10, 1881.

OPINION TEXT STARTS HERE

APPEAL from the Appellate Court for the First District;--heard in that court on appeal from the Superior Court of Cook county; the Hon. JOSEPH E. GARY, Judge, presiding.

This was an action on the case, brought by appellee against appellant, in the Superior Court of Cook county, in consequence of the negligence of appellant resulting in the death of her intestate.

The declaration contains four counts: In the first, the negligent act is alleged to have consisted in wrongfully, unlawfully and negligently driving a locomotive engine and train of cars, within the limits of the city of Chicago, without having a brilliant and conspicuous light on the forward end of said train, as required by an ordinance of said city. In the second, the negligent act is alleged to have consisted in wrongfully, negligently, etc., driving the said locomotive engine and train at a greater rate of speed, within the limits of the city of Chicago, than six miles per hour, contrary to an ordinance of said city. In the third, the negligent act is alleged to have consisted in driving the said locomotive engine and train of cars at a high rate of speed, neglecting to ring a bell on the said locomotive, contrary to law and the ordinance of said city. In the fourth, the negligent act is alleged to have consisted in carelessly, negligently, etc., driving and managing the said locomotive engine and train, etc.

It was proved on the trial, that at the time the intestate was injured, appellant and the Chicago and Alton Railroad Company operated certain tracks in the city of Chicago, in common. The intestate was a switchman in the employ of the Chicago and Alton Railroad Company, and about half past seven o'clock on the evening of February 13, 1880, and while the intestate, together with another switchman and an engineer and fireman, were in charge of a switch-engine, gathering up empty cars from off the switches, the intestate was struck by one of appellant's freight trains, backing up along one of its main tracks, and thereby received the injuries from which he subsequently died.

Ordinances of the city of Chicago were also read in evidence upon the trial, providing that “every locomotive engine, railroad car or train of cars running in the night time on any railroad track in said city, shall have and keep, while so running, a brilliant and conspicuous light on the forward end of such locomotive engine, car, or train of cars;” also, that “no locomotive engine, railroad passenger car or freight car shall be driven, propelled or run upon or along any railroad track within said city at a greater rate of speed than six miles per hour;” and also, that the bell “of each locomotive engine shall be rung continuously while running within said city.” The only light on the advancing or forward end of the train, was a common brakeman's lantern.

The other facts, so far as they may be material to an understanding of this case, will sufficiently appear in the opinion. The jury found the appellant guilty, and assessed appellee's damages at $5000. Motion for a new trial was made, and overruled by the Superior Court, and judgment rendered upon the verdict, and thereupon appellant appealed to the Appellate Court for the First District, and that court, on final hearing, affirmed the judgment of the Superior Court. The present appeal is prosecuted from that judgment.

The errors assigned are:

First--The Appellate Court erred in not sustaining the points, and each of the points, assigned for errror on appeal from said Superior Court.

Second--The said Appellate Court erred in not reversing the judgment of said Superior Court.

Third--The said Appellate Court erred in affirming the judgment of the said Superior Court.

Messrs. WILLARD & DRIGGS, for the appellant:

What the deceased was doing at the time of the alleged injury was material, and must be proved as alleged, although set forth with unnecessary particularity. City of Bloomington v. Goodrich, 88 Ill. 558; Goodhue v. People, 94 Id. 37; Chicago and Alton R. R. Co. v. Michie, 83 Id. 427; Toledo, Wabash and Western R. R. Co. v. Beggs, 85 Id. 80.

The court erred in refusing to allow the witnesses Morrisey and Rose, experienced switchmen, to testify as to their opinions, etc. Linn v. Sigsbee, 67 Ill. 75; Carter v. Bœhm, 1 Smith's Leading Cases, 286; 1 Redfield on Railways, 579; Beckwith v. Sydebotham, 1 Camp. 116; Belfontain and Indiana R. R. Co. v. Bailey, 11 Ohio St. 333; Cincinnati and Zanesville R. R. Co. v. Smith, 22 Id. 227; Transportation Line v. Hope, 5 Otto, 297; 1 Wharton on Evidence, sec. 444.

Persons not experts may give their opinions as to the value of property. Butler v. Wehrling, 15 Ill. 488; McKee v. Nelson, 4 Cow. 350; Steamboat Clipper v. Logan, 18 Ohio, 396. The court erred in overruling appellant's motion to exclude appellee's testimony. Such motions are in the nature of a demurrer to evidence, and should be sustained when the plaintiff's proof does not make out a case. Fent et al. v. Toledo, Peoria and Warsaw R. R. Co. 59 Ill. 349; Poleman v. Johnson, 84 Id. 269; Phillips v. Dickerson, 85 Id. 11.

The deceased could have stood between the two main tracks and performed the service in which he was engaged. He did not do so, but, on the contrary, placed himself in the most dangerous position possible under the circumstances, and the conclusion is irresistible that the proximate cause of his death was his own want of care. Chicago, Burlington and Quincy R. R. Co. v. Hazard, 26 Ill. 373; Chicago and Northwestern Ry. Co. v. Sweeney, 52 Id. 325; Chicago and Northwestern Ry. Co. v. Donohue, 75 Id. 255; Chicago and Northwestern Ry. Co. v. Scates, 90 Id. 586; Lake Shore and Michigan Southern Ry. Co. v. Clemens, 5 Bradw. 77.

That defendant's instructions numbers one and two were proper and correct, counsel cited Bartlett et al. v. Board of Education, etc. 59 Ill. 364; Kendall v. Brown, 74 Id. 232; Clevinger v. Dunaway, 84 Id. 367.

That instruction number seven should have been given, see Illinois Central R. R. Co. v. Hetherington, 83 Ill. 510; Chicago, Burlington and Quincy R. R. Co. v. Harwood, 90 Id. 425. The court erred in giving the instruction on its own motion.

Messrs. MONROE & LEDDY, for the appellee:

The court did allow appellant to prove what the duties of Conlan were, and how they were usually performed, as well as all the facts relating to the case, but not what Conlan might have done.

On the question whether the plaintiff used due care, or acted imprudently, it is error to admit in evidence the opinions of witnesses engaged in the same business, when no question of science, trade or skill is involved. Hopkins v. Indianapolis and St. Louis R. R. Co. 78 Ill. 32; City of Chicago v. McGiven, Id. 347; Chicago and Alton R. R. Co. v. Springfield and Northwestern R. R. Co. 67 Id. 142.

The court did allow appellee and appellant both to show fully the duties of Conlan, the situation of the ground, tracks, switches, trains, and the circumstances and conditions under which he performed those duties, and left it for the jury to say whether or not Conlan was negligent.

The first and second instructions were properly refused, as they took the question of negligence away from the jury, and left it with the court to say that the deceased, under a certain state of facts, was guilty of negligence. The question of the negligence of the deceased was embodied in the instructions given by the court, and fairly submitted to the jury. The case of Bartlett v. Board of Education, etc. 59 Ill. 364, cited by appellant, has no application.

Instructions numbers seven and eight, refused, were properly refused, the first leaving out the comparative negligence, and also being an abstract proposition of law, and the eighth infringing on the province of the jury.

The twelfth instruction was properly refused, as it was faulty in using the word “should” instead of the word “may,” and omitting other words, “willfully and knowingly.” Reynolds v. Greenbaum, 80 Ill. 416; Pollard v. The People, 69 Id. 148.

Mr. JUSTICE SCHOLFIELD delivered the opinion of the Court:

Numerous objections are urged in argument against the rulings below, and they shall be noticed in the order in which they are discussed in appellant's brief.

First--Certain evidence, admitted over appellant's objections, it is insisted, was erroneously admitted.

1. A witness testified how far appellant's train ran after Conlan was struck. This, we think, was competent. An ordinance of the city limited the speed of trains to six miles an hour. It was not indispensable, in proving a violation of this ordinance, that the proof should show the speed was ascertained by actual comparison and measurement with a timepiece. That, of course, would be the very best kind of evidence, but from the nature of things it is absolutely necessary that a lower grade of evidence should be admissible. This evidence would tend to prove the speed of the train, and also whether it was under proper control, and was, in our opinion, legitimate, under the issues.

2. Again, the same witness gave answer, fixing the speed of the train, to this interrogatory: “State to the jury, in your opinion, how fast the train was going.” The only respect wherein it is claimed this is objectionable is, that it is not limited in time. The objection results from a misapprehension. The witness had been previously speaking of the train that struck Conlan. The question is limited to that train, and, we think, must clearly have been so understood by the witness and the jury, and so was free of the objection.

3. The same witness also identified a certain memorandum book as the one Conlan was using in taking the numbers of the cars at the time he was injured. The objection urged against this evidence is, it is not alleged in the declaration that the taking of the numbers of cars was...