Toledo v. Cline

Decision Date05 November 1890
Citation135 Ill. 41,25 N.E. 846
CourtIllinois Supreme Court
PartiesTOLEDO, ST. L. & K. C. R. CO. v. CLINE.

OPINION TEXT STARTS HERE

Appeal from appellate court, fourth district.

Clarence Brown, B. W. Henry

, and Wiley & Neal, for appellant.

Guinn & Duncan, for appellee.

This was case to recover damages for personal injuries, and for injuries to a team of horses and a wagon. The injuries were received at a crossing of a public highway and the railroad of appellant. The declaration contained five counts. The negligence charged in the first count was that ‘the defendant then and there ran a certain locomotive engine upon said railroad up to and across the said public highway at said crossing, and in so doing no bell was rung or whistle sounded by any one in charge of said engine, but therein the defendant wholly failed, contrary to the statute in such case made and provided, by means and in consequence of which default,’ etc. The negligence charged in the second count was that the engine was being propelled beckwards, and that the servants of defendant in charge of said engine were looking east while the engine was being propelled in a westerly direction, and that the defendant ‘failed, to give any warning of the approach of said locomotive engine to, upon, and across said public highway by ringing the bell, or sounding the whistle then and there attached to said locomotive engine, but therein the defendant wholly failed, and made default, contrary to the form of the statute in such cases made and provided, by means whereof and in consequence of which default and neglect of defendant,’ etc. The negligence charged in the fourth count was that ‘the defendant then and there drove a certain locomotive engine upon and along said railroad up to, upon, and across said public highway at the said crossing of the same and the said railroad, and, in so doing, no bell, of at least thirty pounds weight, or steam-whistle, placed on the said locomotive engine, was rung or whistled by the engineer or fireman thereof at the distance of at least eighty rods from the said crossing, and kept ringing or whistling until the said crossing was reached by the said locomotive engine, but therein the defendant wholly failed and made default, contrary to the form of the statute in such cases made and provided, by means and in consequence of which default and neglect,’ etc. The negligence alleged in the fifth count was a failure to place and maintain a sign-board at the crossing; and the third count was for injuries and damages to the horses and wagon only.

Appellant's railroad, at the place where the accident occurred, runs substantially east and west, and the public road on which appellee was driving runs north and south. The train which struck the wagon of appellee consisted of a locomotive, 19 cars, and a caboose. The engine was running backwards, and west, but was pulling the train, so there were no cars in front of the engine in the direction in which it was moving. The country was open and level, and there was nothing to obstruct the view east of the highway for the distance of a quarter of a mile. The chief contention of appellant at the trial was that as the train was in full view for the distance above stated, so that appellee could easily have seen it before driving on the railroad track, he did not exercise reasonable and ordinary care, and was guilty of such contributory negligence as would prevent his recovery for the injuries sustained.

Among the instructions given to the jury at the instance of appellee were the following: (1) The court instructs the jury that if they believe from the evidence that the place of the injury complained of was the crossing of the railroad over a public highway, and that, upon the occasion of the injury complained of, a bell was not rung nor a whistle sounded at a distance of eighty rods from the crossing, and kept ringing or whistling until the crossing was reached, and that the plaintiff was lulled into a feeling of security by reason of such negligence on the part of defendant, and that in attempting to cross the said railroad track he was struck and injured, as charged in the declaration, then the plaintiff, even though he may have been somewhat careless in looking out for trains, may recover, provided the jury shall upon a comparison, be of the opinion from the evidence that the negligence of defendant was gross, and that plaintiff's negligence was only slight.’(3) The jury have the right, under the law, to compare the negligence of plaintiff and defendant in a case like the one at bar, and in this case, although the jury may believe from the evidence that plaintiff was not wholly without negligence; yet if you further believe from the evidence that the defendant was guilty of gross nigligence, whilst the plaintiff was only guilty of slight negligence, then such slight negligence on plaintiff's part will not prevent a recovery in this case.’(5) The jury are instructed that if a railroad crosses a common road on the same level, those traveling on either have a legal right to pass over the point of crossing, and to require reasonable care and caution of those traveling on the other road to avoid a collision; that while a passing train, from its force and momentum, will have the preference in crossing first, yet those in charge of it are bound to give reasonable warning, so that a person about to cross with a team and wagon may stop and allow the train to pass, and such warning must be reasonable and timely, so far as the circumstances will reasonably admit.’

The court refused to give the following instruction asked by appellant: (2) The court instructs the jury in this case that it was only ordinary care for the plaintiff, as he approached the crossing upon which he received his injuries, to keep a lookout both ways for the approach of trains, and it was his duty to exercise such ordinary care; and if you believe from the...

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