19 Ill. 499 (Ill. 1858), Chicago & R.I. R. Co. v. Still

Citation:19 Ill. 499
Opinion Judge:WALKER, J.
Attorney:GLOVER & COOK, for Appellant. BUSHNELL & GRAY, for Appellee.
Court:Supreme Court of Illinois

Page 499

19 Ill. 499 (Ill. 1858)




Supreme Court of Illinois, Ottawa

April, 1858

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THIS was an action on the case commenced by Still against the railroad company. First count alleges that, on the 28th day of April, 1856, plaintiff was the owner of a two-horse wagon and two horses, and was driving along a public highway which crossed the railroad of the defendant; that the defendant, by its servants, then and there so carelessly, unskillfully and improperly drove, governed, managed and directed their steam carriages, locomotives and railroad cars, that by and through the carelessness, negligence, unskillfulness and improper conduct of said defendant, and for want of proper care and management in that behalf, the said locomotives and cars were driven against the horses of the plaintiff, and the horses killed and the wagon broken.

Second count is like the first, except that it alleges that the railroad company was an incorporated company, under and by virtue of an act to incorporate the Rock Island & La Salle Railroad Company, approved February 27, 1847, and an act to amend the same, approved February 7th, 1851.

Plea, general issue.

At the first trial the jury could not agree upon a verdict.

The cause was tried a second time on the 16th of November, 1857, before HOLLISTER, Judge, and a jury, on which trial the plaintiff called William Miller as a witness, who testified as follows:

I knew the plaintiff. I was at the aqueduct mill, in 1856, one evening just as it was getting dark. I stood in the door of the mill, and saw the cars coming on the railroad track of defendant. Saw, at the same time, a two-horse wagon, with a man sitting in it, going from the aqueduct up towards the railroad track at the road crossing. I watched the cars to see if they whistled. The team stepped on to the track; then Still looked up and backed up his horses. One horse was gray, and the other a dark brown. Still was traveling on the public highway. I was twenty rods from where the team was struck--perhaps a little further. I saw the train a quarter of a mile off. The team was walking. Still was sitting down in the bottom of his wagon, with his back towards the direction the cars were coming. They were coming from the east. Still was going north. It was a mild, misty evening. I had no difficulty in seeing the train. I could tell when the train came on to the bridge, as it sounds heavier and louder there. Still was nearer the train than I. Still might have seen the train if he had looked up and around. You can see the cars, when coming from the east, if you are between the acqueduct and brewery, or between the brewery and the house, and from the house to the railroad track. There was very little wind, if any. The smoke flew south and east. The road was frozen and pretty rough. It was a very quiet evening. If there had been a whistle blown, I think I should have heard it. I did not hear the whistle blow or bell ring. I watched to see if they would blow or ring. I thought that if they did not, Still would get caught. I do not think it was possible that I could be mistaken under the circumstances. If the bell had rung, or whistle sounded, I certainly should have noticed it. I was afraid there would be a collision, if they did not give the signal, and was watching to see if any was given. The head light was not lit. I am as sure of this as I am that the whistle did not sound or the bell ring. The mill I stood in was Keeler's mill, in the city of Ottawa.

Thomas Dwyer. I know the plaintiff. Was anxious to have the train come along, because the time for the arrival of the train was the same as the time when we quit work. I saw the cars coming a long way off--above the bridge. I was watching the train, as it was pretty near time to quit work. I also saw the train after it had crossed the bridge. To the best of my knowledge, no bell was rung or whistle sounded. I thought of it that night after the accident happened, that they did not ring the bell or sound the whistle. I would not pretend to recollect positively, as it was so long ago; but I would have taken my oath that night that the bell did not ring or the whistle sound. I saw the horses after they were struck. One was dead and the other nearly so; he afterwards died. I didn't hear the bell or whistle. I saw no head light on the locomotive.

James Keeler. I was in the office of my mill at the time spoken of, and did not see the occurrence. I heard the cars coming, and heard Miller exclaim, and ran out just as the train was passing. When I heard Miller exclaim, I remarked to Brown that they had not whistled. I should have been likely to have heard them if they had whistled. The bell may have rung, and I not have heard it. I saw the horses--one was dead and the other injured. The distance is such that I could have heard the whistle if it had been sounded. The office is a room inside of the mill. I could hear the cars distinctly while crossing the bridge. I can see them two or three miles off. I should think, in a still night, one could hear the train a mile off--certainly, forty rods.

William Brown. I did not hear the whistle blow. We generally hear it in the mill. When I got up to the crossing, they were trying to get one horse up. It stood up awhile, but died in an hour or so. The horses and wagon were in the ditch, on the south side of the railroad. I was in the office of Keeler's mill, and talking with him. Think he said that the whistle had not sounded--not that the bell had not rung. It was a little before dark. We could see the train a mile off. In a still night, one could hear the train a mile off. It makes a louder noise on the bridge. I have not been over the road in a wagon. The fence and trees between Everett's house...

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