Chicago & N.W. Ry. Co. v. Dunleavy

Decision Date15 June 1889
Citation22 N.E. 15,129 Ill. 132
CourtIllinois Supreme Court
PartiesCHICAGO & N. W. RY. CO. v. DUNLEAVY.

129 Ill. 132
22 N.E. 15

CHICAGO & N. W. RY. CO.
v.
DUNLEAVY.1

Supreme Court of Illinois.

June 15, 1889.


Appeal from appellate court, First district.


[129 Ill. 136]W. C. Goudy and W. B. Keep, for appellant.

[129 Ill. 138]M. L. Knight and Joseph S. Kennard, Jr., for appellee.


BAILEY, J.

This was an action on the case, brought by Annie Dunleavy, administratrix of the estate of John Dunleavy, deceased, against the Chicago & Northwestern Railway Company, to recover damages under the statute for the death of the plaintiff's intestate. The declaration consisted of nine counts, to the fifth, sixth, and seventh of which a demurrer was sustained. To the remaining counts the defendant pleaded not guilty, and, on trial before the court and a jury, the issues were found for the plaintiff, and her damages assessed at $1,800, and for that sum and costs the court, after denying the defendant's motion for a new trial, gave judgment for the plaintiff. Said judgment was affirmed by the appellate court on appeal, and by a further appeal the record is now brought to this court.

The first count of the declaration alleges that the defendant, on the 26th day of July, 1886, by its servants, ran one of its locomotive engines, with a train of freight-cars thereto attached, [129 Ill. 139]from east to west, over one of its tracks under a viaduct at Blue Island avenue, in the city of Chicago; that the

[22 N.E. 16]

plaintiff's intestate was then and there in the employ of said city, cleaning and painting the iron columns, etc., of said viaduct; and that ‘the said train was, by and through the negligence, carelessness, and improper conduct of the said defendant through its servants in the premises, run at a high and dangerous rate of speed,’ and that while being so run it was driven against and upon said Dunleavy, whereby he was instantly killed. The second count alleges that the defendant, through its servants, ‘so carelessly, improperly, and unskillfully managed and conducted said engine and train that the said John Dunleavy was forcibly knocked down by said engine and train,’ and thrown under the wheels of the train, and instantly killed. The third count sets up an ordinance of said city requiring the bell of each locomotive engine to be rung continually while running within the city, and alleging that the defendant's servants in charge of said train failed to comply with the ordinance, and that in consequence of such failure said Dunleavy was killed. The fourth count is substantially like and second. The eighth count alleges that the enginner and fireman could, by looking, have seen Dunleavy standing at his work, and by sounding a whistle have given him notice of the approach of a train, but that they failed to sound the whistle, and that in consequence of such failure said Dunleavy was killed. The ninth count alleges substantially the same act of negligence as the eighth, though in different language. Each count alleges in proper form that Dunleavy, at the time he was killed, was in the exercise of due care.

At the close of the trial the counsel for the defendant asked the court to instruct the jury that the evidence in the case was insufficient to sustain a verdict for the plaintiff, and that their verdict should therefore be for the defendant. This instruction the court refused to give, and such refusal is assigned for error. [129 Ill. 140]A prayer for an instruction of this character is in the nature of a demurrer to the evidence, and is equivalent to an admission upon the record of every fact and every conclusion in favor of the opposite party which the evidence conduces to prove; in other words, every fact which the jury might have inferred from it in favor of such opposite party. Such instruction should not, therefore, be given, except where there is a substantial failure of evidence tending to prove the plaintiff's cause of action, or to prove some material fact necessary to establish it. The instruction asked was based upon the theory that there was a substantial failure of evidence tending to prove the negligence charged against the defendant. In considering the propriety of said instruction, we have nothing to do with any question as to the preponderance of the evidence or the credibility of the witnesses, or the force to be given to the evidence having a tendency merely to impeach their veracity. The only question is whether any evidence was given which, if true, would have tended to support a verdict for the plaintiff.

Upon the question of the speed of the train at the time Dunleavy was killed, the witnesses for the plaintiff testified that it was moving very fast; some of them fixing the speed at from 30 to 35 miles per hour. Such speed, at the place where the accident happened, in a thickly settled portion of a great city, was of itself a fact for the jury to consider as tending to show that the defendant was guilty of negligence, and was sufficient to justify and inference to that effect. The city ordinance requiring a bell to be rung continually while the train was in motion at the place in question was proved, and the testimony of a number of the plaintiff's witnesses tended to show that no bell was rung or other warning given until after Dunleavy was struck. This evidence, tending, as it did, to show a breach of municipal ordinance, was also a sufficient basis for an inference by the jury of negligence. The circumstances under which the plaintiff's intestate was killed, and which need not here be stated in detail, clearly tended to [129 Ill. 141]establish a causal relation between such acts of negligence and the collision which resulted in his death. There was also evidence, partly direct and partly circumstantial, tending to show the exercise of ordinary care on the part of the deceased. Manifestly, then, the case was not one where a demurrer to the evidence could have been sustained, and the court, therefore, properly refused to instruct the jury to find a verdict for the defendant.

The next questions to be considered are those which relate to the special findings of the jury. Upon this branch of the case it is urged- First, that the court improperly refused to submit certain...

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