The Chicago v. Hazzard

• Decision Date: 30 April 1861
• Citation: 1861 WL 4157,26 Ill. 373,16 Peck 373
• Parties: THE CHICAGO, BURLINGTON AND QUINCY RAILROAD COMPANY, Appellant,v.ERASTUS W. HAZZARD, Appellee.
• Court: Illinois Supreme Court

26 Ill. 373
1861 WL 4157 (Ill.)
16 Peck (IL) 373

THE CHICAGO, BURLINGTON AND QUINCY RAILROAD COMPANY, Appellant,
v.
ERASTUS W. HAZZARD, Appellee.

Supreme Court of Illinois.

April Term, 1861.

Appeal from Knox.

1. In a declaration in case against a corporation for injuries sustained, the declaration should allege that the defendant was guilty of negligence, and that the plaintiff exercised proper care; and the proof should support the allegations.

2. It is not negligence in an engineer of a train on arriving at a station, if he should let on more than the exact quantity of steam necessary to overcome the friction of frogs and switches, thereby creating a jerking motion of the train, if in so doing he exercises a reasonable discretion.

3. It is not usual to place a chain across the back end of the platform of a caboose car, and the omission to do so is not negligence. A passenger taking a freight train, takes it with the increased risks, or diminutions of comfort incident thereto, and if it is managed with the care requisite for such trains, it is all that those who embark on it have a right to demand.

4. Information by a conductor of a freight train to a passenger of mature age, and accustomed to railroad traveling, that persons sometimes debarked at a particular place, does not require the passenger to take the risk of leaving the car at such place, and is not negligence in the conductor.

5 The care and diligence to be used by both parties are to be measured by the known perils to which passengers are exposed by the particular kind of conveyance used. BREESE, J.

6. The supreme court will examine the whole record, the facts as well as the law, and reverse or affirm a case as justice shall require, although a jury may have passed upon it. A jury should not show by verdict the appearance of being governed by passion, prejudice or unworthy motives.

7. Where a party receives an injury to which his own negligence has contributed, he cannot recover.

THE facts of this case are stated in the opinion of Mr. Justice BREESE.

Walker, Van Arman & Dexter, for appellant.

J. Manning, and E. Van Buren, for appellee.

BREESE, J.

This is an action on the case brought by the plaintiff, a member of the bar of this court, against the Chicago, Burlington and Quincy Railroad Company. There are four counts in the declaration. In the first it is averred, in substance, that at the time of the alleged injury, the defendant was a body corporate, and was the owner and proprietor of a railroad extending through and from Kewanee, in said state, to Galesburg, in said county, with trains of

[26 Ill. 374]

cars running thereon for the conveyance of goods and passengers. That on the 29th June, 1860, the plaintiff at Kewanee, became a passenger on defendant's said cars, to be safely carried thereon from Kewanee to Galesburg, for the sum of one dollar, then and there paid to the defendant.

That the defendant then and there received the plaintiff as such passenger, and it thereupon became the duty of the defendant safely to carry the plaintiff from Kewanee to Galesburg, and that there its train should be reasonably stopped and slackened in its speed, to enable the plaintiff to alight without injury to his person.

But that the defendant did not use due care that the train should be so stopped and slackened in its speed at Galesburg, so that the plaintiff should be safely discharged from and permitted to leave said cars, but neglected to do so, and after the arrival of said train at Galesburg, and whilst the plaintiff, with the consent and permission of the defendant, was alighting from said train, caused the same to be suddenly and violently started and moved, by means whereof the plaintiff was violently thrown to the ground, and his ankle dislocated, and his right leg fractured, and plaintiff otherwise injured, etc.

The second count is like the first, except that the duty and violation thereof is alleged as follows:

“And thereupon it became the duty of the defendant to use due and proper care that the plaintiff be safely carried from Kewanee to Galesburg, and there be safely discharged and released from said train of cars. But the defendant so carelessly, negligently and unskillfully run, managed and conducted said train of cars, that while the plaintiff was such passenger on said train, he was, by the carelessness and negligence of the defendant, violently thrown upon the ground, by means whereof the legs, feet and ankles of the plaintiff were fractured, dislocated and broken,” etc.

In the third count, the duty of defendant, and breach thereof, after having set forth that on the day and year aforesaid, the plaintiff had become a passenger on the cars of the defendant from Kewanee to Galesburg, is alleged as follows:

“And thereupon it became the duty of the defendant to provide safe and suitable cars, with railings, guards and protections upon and around the platforms of said cars, so that passengers thereon could safely and securely go out upon said platforms in getting from the said cars, and to use due care that the said plaintiff be safely carried upon said cars from Kewanee to Galesburg, and there be safely discharged and delivered therefrom.

[26 Ill. 375]

That the defendant did not provide cars for passengers in said train with suitable railings, guards and protections around the platforms thereof, so that passengers upon said train could safely go out upon said platform in getting off the said cars; and did not use proper care that the plaintiff be so carried and delivered, as aforesaid, at Galesburg.

But the passenger car used on said train, on which the plaintiff was carried, was without any such suitable railings, guards or protections upon or around the platforms thereof; and the defendant so carelessly managed the train while he, the plaintiff, was a passenger thereon, and while he was being discharged and getting therefrom, at Galesburg, that by reason of the passenger car in said train, upon which he was carried, not being provided with suitable railings, guards or protections upon or around the platforms thereof, as aforesaid, and by reason of the carelessness and negligence of the defendant in the management of said train of cars, whilst the plaintiff was getting off the same at Galesburg, was violently thrown from said cars upon the ground, and his foot and ankle thereby fractured and dislocated,” etc.

In the fourth count, the plaintiff, after setting forth that defendant was a common carrier, and that he took passage on its cars, etc., substantially, as in the first count, alleges, that it thereupon became the duty of the defendant to provide safe and suitable cars, with railings, guards and protections upon and around the platforms of said cars, so that passengers could safely go out upon said platforms in getting off said cars.

And to use due care that the plaintiff should be safely conveyed on said train from Kewanee to Galesburg, and at the station house of the defendant at Galesburg, that being the proper and usual place of discharging and delivering passengers, should be safely discharged from said train of cars.

That the defendant did not have cars for the carriage of passengers in said train with suitable railings, guards and protections around the platforms thereof, so that passengers could go upon the platforms safely in getting off said cars.

That it did not use due diligence that the plaintiff should be so carried on said train, and at said station house delivered therefrom.

But that the car used in said train, and on which the plaintiff was carried, was without suitable railings around the platforms thereof.

That defendant undertook improperly to discharge the plaintiff from said train before it had arrived at the station house of the defendant at Galesburg, and while the cars were in motion, at an improper time and “place, and so carelessly managed the train, that whilst the plaintiff

[26 Ill. 376]

was being discharged therefrom, by reason of the car not being provided with suitable guards, railings and protections around the platforms thereof, and by reason of the defendant undertaking to discharge the plaintiff therefrom while it was in motion and before it had arrived at the station house, and by reason of the careless management of said train while the plaintiff was getting off the same, he, the said plaintiff, was violently thrown through the doorway, and over the platform of said car, and on to the track of said road, and thereby his right foot and ankle were dislocated,” etc.

To this declaration, the defendant filed the plea of not guilty, upon which issue was joined, the trial of which was had in said court before a jury, on the 28th of February, 1861.

There is no point made here, or in the court below, of the sufficiency of the declaration. The rule being, that the plaintiff, in cases like this, must allege and show affirmatively that the defendant was guilty of negligence, and, also, that he himself exercised proper care, it would seem, on the principles of correct pleading, that his exercise of proper care, as well as the negligence of the defendant, should be alleged in the declaration. If both must be proved, both must be alleged. In this respect, then, the declaration was bad, for there is no averment in it that the plaintiff exercised proper care. The books are full of cases where, in such actions as this, the burden of proof is always held to be on the plaintiff, that he was himself exercising ordinary care and diligence at the time the accident happened. Butterfield v. Forester, 11 East, 60, is a leading case on that point. Galena & Chicago Union R. R. Co. v. Fay, 16 Ill., 569.

But passing from the declaration, the jury have found, on all the counts, in favor of the plaintiff, and ignored all pretense of a corresponding or greater degree, or any degree, of negligence on his part, and we are to inquire if they have found according to the law and the evidence. And here this court is met by the acknowledged...