105 Ill. 364 (Ill. 1883), Wabash, St. Louis & Pacific Railway Co. v. Shacklet

Citation:105 Ill. 364
Opinion Judge:Mr. MULKEY, JUSTICE.
Attorney:Mr. G. B. BURNETT, and Mr. FRANK W. BURNETT, for the appellant: Mr. WALDO P. JOHNSON, and Mr. M. MILLARD, for the appellee:
Case Date:January 31, 1883
Court:Supreme Court of Illinois

Page 364

105 Ill. 364 (Ill. 1883)




Supreme Court of Illinois

January 31, 1883

January 1883, Decided

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APPEAL from the Appellate Court for the Fourth District;--heard in that court on appeal from the City Court of East St. Louis; the Hon. CHARLES T. WARE, Judge, presiding.

Judgment reversed.

Mr. G. B. BURNETT, and Mr. FRANK W. BURNETT, for the appellant:

The judgment should be reversed because plaintiff's instructions ignore the question of ordinary care by the deceased. Chicago and Northwestern R. R. Co. v. Dimmick, 96 Ill. 42; Chicago, Burlington and Quincy R. R. Co. v. Harwood, 80 Ill. 88; Chicago, Burlington and Quincy R. R. Co. v. Payne, 49 Ill. 499; Chicago, Burlington and Quincy R. R. Co. v. Lee, 60 Ill. 502; Chicago and Northwestern R. R. Co. v. Simonson, 54 Ill. 504; Illinois Central R. R. Co. v. Moffit, 67 Ill. 431; Illinois Central R. R. Co. v. Herrington, 83 Ill. 510; Chicago and Alton R. R. Co. v. Pennell, 94 Ill. 42; Wabash Ry. Co. v. Hunt, 91 Ill. 406; Chicago Packing Co. v. Tipton, 87 Ill. 547; Illinois Linen Co. v. Hough, 91 Ill. 63; Stratton v. Central Horse Ry. Co. 95 Ill. 25.

As the deceased was a passenger of the transit company, whose negligence contributed to the injury, the plaintiff can not recover from appellant unless the negligence of the transit company was slight in comparison with that of appellant. City of Joliet v. Seward, 86 Ill. 406; Toledo, Wabash and Western Ry. Co. v. Miller, 76 Ill. 278; Toledo, Wabash and Western Ry. Co. v. Grable, 88 Ill. 443; Lockhart v. Lichtenthaler, 46 Pa.St. 151; Lake Shore and Michigan Southern R. R. Co. v. Miller, 25 Mich. 274; Smith v. Smith, 2 Pick. 621; Houfe v. Fulton, 29 Wis. 296; Prideaux v. Mineral Point, 43 Ill. 513; Forkstown v. King, 84 Pa.St. 230; Payne v. Chicago Ry. Co. 39 Iowa 525; C. C. & C. R. R. Co. v. Terry, 8 Ohio St. 570; Puterbaugh v. Reason, 9 Ill. 484; Brown v. New York Central R. R. Co. 31 Barb. 335; Thorogood v. Bryan, 65 Eng. C. L. 114; Catlin v. Hill, Ill. 123; Child v. Hearn, L. R. 9 Exch. 176; Wharton on Negligence, sec. 395; Cooley on Torts, 684, 140.

It was error to instruct the jury that if both companies were negligent, the plaintiff might recover from either. Yeazel v. Alexander, 58 Ill. 254; Chicago and Northwestern Ry. Co. v. Scates, 90 Ill. 586; Cooley on Torts, 133, 140; Wharton on Negligence, sec. 395.

Appellee, as foreign administratrix, is not entitled, under the statute, to maintain this action. Hurd's Stat. 1880, chap. 3, sec. 42; People v. Peck, 3 Scam. 118; Judy v. Allington, 11 Ill. 211; City of Chicago v. Major, 18 Ill. 349; Illinois Central R. R. Co. v. Cragin, 71 Ill. 177.

Mr. WALDO P. JOHNSON, and Mr. M. MILLARD, for the appellee:

There being no doubt as to the defendant's negligence, the giving or refusing of instructions working no injury will not reverse. Andes Ins. Co. v. Fish, 71 Ill. 620; Schwartz v. Schwartz, 26 Ill. 81; Ryan et al. v. Donnelly, 71 Ill. 101.

Errors in instructions, where the verdict does justice, are no ground for a reversal. Potter v. Potter, 41 Ill. 81; Jarrard v. Harper, 42 Ill. 457; Murray v. Haverty, 70 Ill. 318; White v. Stanbro, 73 Ill. 575; Hall v. Sroufe, 52 Ill. 421; Strohm v. Hayes, 70 Ill. 41; Hubner v. Feige, 90 Ill. 208.

As to whether the negligence of a third party can be imputed to the plaintiff, and defeat a recovery against one whose failure of duty was the proximate cause of the injury, is not beyond dispute. The better doctrine seems to be to limit this rule to cases where there is such a personal relation as fairly to make the plaintiff responsible for the other's conduct. Dyer v. Erie Ry. Co. 71 N.Y. 288; Chapman v. New Haven R. R. Co. 19 Ill. 341; Bennett v. New Jersey R. R. Co. 36 N.J. 225; Danville Turnpike Co. v. Stewart, 2 Metc. (Ky.) 119; Louisville R. R. Co. v. Case's Admr. 9 Bush 728; Shearman & Redfield on Negligence, 48; Wharton on Negligence, sec. 395.

A foreign administrator may maintain the action. Illinois Central R. R. Co. v. Cragin, 71 Ill. 177.


Page 368


This is an appeal from the Appellate Court for the Fourth District, affirming a judgment of the City Court of East St. Louis, rendered at its August term, 1881, against the Wabash, St. Louis and Pacific Railway Company, the appellant, for the sum of $ 3500, in an action brought by Eliza J. Shacklet, the appellee, as administratrix of Elijah E. Shacklet, her late husband, to recover damages for injuries received by him in a railway collision, resulting in his death, charged to have been caused by the negligence of the appellant.

The injury complained of occurred in East St. Louis, on a short line of railroad belonging to the St. Louis National Stock Yards, and was caused by a collision of two trains of cars, belonging, respectively, to the appellant and the Union Railway and Transit Company. The road on which the collision occurred connected the stock yards with the various lines of railway running through or terminating at East St. Louis, and was open alike to the free and common use of all railway companies for the purpose of shipping live stock to or from the stock yards. This connecting line of road belonging to the stock yards company consists of two main tracks, connected at or near the stock yards by necessary switches and turn-outs, so that with proper care and precaution collisions between incoming and outgoing trains might readily be avoided. The track on which the collision occurred is called the "wall track," and the evidence tends to show that trains going in with stock were entitled to the right of way on this track. At the time of the accident the transit company was pulling a train into, and the appellant was pushing one out from, the stock yards on this wall track, both trains being loaded with live stock, but owing to a sharp curve in the track, and some obstructions on the line of the road, those having the trains in charge did not discover their close proximity till it was too late to avoid the collision.

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Shacklet, at the time, was riding on the engine of the transit company's train, and a number of the cars belonging to it were loaded with his stock.

Kay, a witness on behalf of appellee, in giving an account of the affair, says: "There is a curve in the track going around the sheep house, near the stock yards. Shacklet was sitting right by me on the engine. I jumped off just as the conductor said 'look out.' There were six or seven persons riding on the engine. I was standing on the foot-board, and we all jumped off except Shacklet, when we saw the Wabash train backing towards us. The tender of the bridge engine slopes downward, and the men were sitting on this slope on the front end of the tender. I had just time to jump off before the collision. The Wabash train was about fifteen yards from us, backing towards us, when I saw it. The transit train was going about five miles an hour, and the Wabash train pretty lively. The Wabash had about eighteen cars, and was pushing them towards us. Could not see the Wabash train sooner on account of the curve, which is very short, and the sheep house also obstructed the view. The Wabash train was moving about twelve miles an hour when the collision occurred. When the trains came together the car of the Wabash slid upon the sloping end of the transit engine, and caught Shacklet. He lived about twenty minutes. I saw none of the Wabash employees on the train. I saw a stock shipper standing on top of the Wabash train as it came around the curve. He was standing near the end. The transit train was going...

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