Baltimore & O.S.W. Ry. Co. v. Then

• Decision Date: 20 January 1896
• Citation: 159 Ill. 535,42 N.E. 971
• Court: Illinois Supreme Court
• Parties: BALTIMORE & O. S. W. RY. CO. v. THEN.

159 Ill. 535

42 N.E. 971

BALTIMORE & O. S. W. RY. CO.

v.THEN.

Supreme Court of Illinois.

Jan. 20, 1896.

Appeal from appellate court, Fourth district.

Action by Fabian Then against the Baltimore & Ohio Southwestern Railway Company. From a judgment of the appellate court affirming a judgment for plaintiff (59 Ill. App. 561), defendant appeals. Affirmed.

The opinion of the appellate court of the Fourth district, by Green, J., affirming the judgment of the city court of East St. Louis, is as follows:

‘Appellee, as administrator of the estate of his deceased daughter, brought this suit under the statute, to recover damages for the death of his intestate, caused, as avowed in the declaration, by the negligence of appellant's servants in charge of its passenger train, in operating the same in the city of East St. Louis at a greater rate of speed than 10 miles an hour, in violation of the city ordinance, and without causing the bell on the engine to be rung, as required by another ordinance of said city. Defendant pleaded the general issue. A trial was had. The jury found defendant guilty, and assessed the damages at $5,000. Plaintiff entered a remittitur of $2,500. Defendant's motion for a new trial was then overruled, as was also its motion in arrest of judgment. The court entered judgment for $2,500, damages and costs of suit, for plaintiff, and defendant took this appeal.

‘On behalf of appellant it is urged the motion in arrest of judgment should have been sustained, on the ground there was no averment in the declaration that deceased was in the exercise of due care at the time of the accident. Conceding the declaration to have been demurrable because of such omission, it does not follow that, after verdict, a motion in arrest of judgment, based on such defect, should be sustained. Where there is any defect, imperfection, or omission in any pleading, whether in substance or in form, which would have been a fatal objection on demurrer, yet if the issue joined be such as necessarily required, on the trial, proof of the facts so imperfectly or defectively stated or omitted, and without which it is not to be presumed that the judge would direct the jury to give, or the jury would have given, the verdict, such defect, imperfection, or omission is cured by verdict. 1 Chit. Pl. (14 Am. Ed.) 675; Railroad Co. v. Simmons, 38 Ill. 243; Railroad Co. v. Feehan, 149 Ill. 203, 36 N. E. 1036. In the case at bar it is not to be presumed the jury would have given the verdict, or that the court would have sustained it, without evidence tending, at least, to establish the fact of due care on the part of deceased. The motion in arrest was properly overruled.

‘It is next insisted that the court erred in refusing to instruct the jury to find for defendant on the ground that the evidence failed to show deceased exercised any care to avoid the injury, but her conduct showed she was guilty of gross negligence. This was a question of fact for the jury. The evidence in cases of this kind, to establish the fact that deceased exercised due care, need not be direct, but such care may be inferred from the circumstances existing at the time of the injury and other facts in evidence. The evidence in this case was sufficient to prove that there were a number of box cars on the side track, and a curve in the main track above the street crossing, which would obstruct the view, and make it quite difficult, and perhaps impossible, for the deceased to see the approaching train until she was on the main track at the crossing, and too late to escape. She had a right, also, to rely upon the performance of the duty imposed upon the defendant by the city ordinances, to warn her of the approach of the train by continuously ringing the bell upon the engine, and not to run said train faster than 10 miles per hour within the city; and there was evidence tending strongly to show this duty was not performed. Among other things proper for the jury to consider in determining this question of due care is the instinct prompting to preservation of life and avoidance of danger. Railroad Co. v. Nowicki, 148 Ill. 29, 35 N. E. 358; Railroad Co. v. Voelker, 129 Ill. 553, 22 N. E. 20. In our judgment, the evidence justified the jury in finding deceased exercised reasonable care at the time in question.

‘The first instruction given for plaintiff is objected to, for the reason that the following clause is contained therein: ‘And if the jury further find from the evidence that said deceased, at the time of her injury, was exercising ordinary care for her own safety, according to her age, capacity, and discretion;’ and it claimed this clause erroneously limited the care required of deceased. It was averred in the declaration that deceased was 12 years of age, and by the evidence her age was between 12 and 13 years at the time she was killed. In Weick v. Lander, 75 Ill. 93, which was an action by a father, as administrator, for the wrongful killing of his son, 12 years old, it is said in the opinion: ‘It is not to be expected that a boy twelve years old will use the same degree of care and caution as a person of mature years, nor does the law require it. It was proper for the jury, in passing upon the negligence of deceased, to take into consideration his age and experience.’ In Railroad Co. v. Becker, 76 Ill. 25 the court says: “The age, capacity, and discretion of deceased to observe and avoid danger were questions of fact to be determined by the jury, and his responsibility was to be measured by the degree of capacity he was found to possess.' These cases and this doctrine announced therein are cited and approved in Railroad Co. v. Slater, 129 Ill. 99, 100,21 N. E. 575.' Moreover, appellant, in its first instruction given, requests the court to inform the jury that the degree of care required of deceased was that which a reasonable person of her age, under all the facts and circumstances, would have used, and cannot assign for error a ruling substantially the same as that made at its own instance. Steel Co. v. Martin, 115 Ill. 367, 3 N. E. 456. It was not error to give the instruction objected to.

‘The giving of plaintiff's second instruction is next assigned for...