46 Ill. 74 (Ill. 1867), Chicago & A. R. R. Co. v. Gretzner

Citation:46 Ill. 74
Opinion Judge:Mr. BREESE, CHIEF JUSTICE.
Party Name:CHICAGO AND ALTON R. R. COMPANY. v. CHARLES GRETZNER
Attorney:Mr. A. W. CHURCH and Messrs. MILLER, VAN ARMAN & LEWIS, for the appellants. Messrs. WARD & STANFORD, for the appellees.
Judge Panel:Mr. Chief Justice Breese. Lawrence, J., Walker, J., concurring.
Court:Supreme Court of Illinois
 
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Page 74

46 Ill. 74 (Ill. 1867)

CHICAGO AND ALTON R. R. COMPANY.

v.

CHARLES GRETZNER

Supreme Court of Illinois, Third Grand Division

September, 1867

Page 75

Appeal from the Circuit Court of Cook county; the Hon. ERASTUS S. WILLIAMS, Judge, presiding.

The facts in this case are fully stated in the opinion of the Court.

Judgment reversed.

Mr. A. W. CHURCH and Messrs. MILLER, VAN ARMAN & LEWIS, for the appellants.

Messrs. WARD & STANFORD, for the appellees.

Mr. Chief Justice Breese. Lawrence, J., Walker, J., concurring.

OPINION

Page 76

Mr. BREESE, CHIEF JUSTICE.

This was an action on the case brought in the Superior Court of Chicago, bye Charles Gretzner, against the Chicago and Alton Railroad Company, for injuries received by plaintiff by a collision of the train of defendants with the wagon of the plaintiff, by which he was thrown out, and seriously injured, and that

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the collision was caused by the negligence of the defendants. The declaration contained three counts, the first of which averred negligence generally, on the part of the defendants. The second count charges negligence on the part of the defendants in running their train at a too high rate of speed, and in not having a flagman stationed at the street crossing where the accident occurred; and the third count charges the negligence, in not ringing a bell, in running the train at a too high rate of speed, and in not having a flagman stationed at the crossing.

The cause was tried by a jury on a plea of not guilty, and a verdict rendered for the plaintiff of seven thousand five hundred dollars, on which judgment was entered, the court refusing the defendants' motion for a new trial, and a bill of exceptions taken.

We have examined the testimony in the cause and are satisfied it does not sustain the verdict. The great preponderance of the evidence is in favor of the defendants. It was not attempted by the plaintiff, on the trial, to prove that the bell was not rung, or that the rate of speed of the train was too high, he being content to rest his case, on the alleged absence of the flagman from his post. It was proved, on the part of the defendants, that the bell was rung from the time the train left the freight house, continuously, to the moment of the collision, and that the speed of the train was slackened to the rate of about five miles per hour. As to the presence of a flagman at his post, the plaintiff examined five witnesses who testified they saw the collision, though from different points of view, and they testify they saw no flagman on duty before the collision. One of them, Duffig, says he was excited at the time, and paid no attention to the flagman, and don't know whether there was one or not -- don't recollect. Bohnet says the flagman generally stands in the middle of the street, and if there, he could not see him where he, witness stood -- thought of nothing until the collision occurred, any more than when any one passes.

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Donlan states he was standing at southwest corner of Van Buren and Canal streets, about half a block from the collision, talking to two young men there. While talking, one of the young men turned around and said "look." Witness looked and saw just as the car came up and struck the hind part of the wagon; could see down the street; flagman usually stood in the centre of the street; was not there then. On his cross-examination he said, that a good many persons and teams were passing there -- that all he knew about flagman was, that he did not see any. The collision was just on the point of happening when he looked.

Helper states he saw the collision -- had just stepped out of a saloon on the south side of Van Buren street, near the bridge, and plaintiff passed him on a lively trot about one hundred feet from the rail road; witness was going west on Van Buren street, saw plaintiff, when he came near the collision try to turn back but could not, a pile of dirt being in the way; did not see any flagman there just previous to the collision; would probably see flagman if he was there; the train was moving along pretty briskly.

On his cross-examination he says it was in his mind if plaintiff went on, he would probably be struck by the cars; the cars were backing north, and were in the middle of the street when he first noticed them; only saw them a little moment before the collision; noticed nothing before the collision; heard hallooing just before the collision; was excited and did not notice anything in particular before he noticed the collision.

The other witness for plaintiff, John Fairbanks, testified that he crossed Van Buren street just before the collision and there was no flagman then in the middle of the street; did not see any flagman there; had seen him there before; sometimes they stand in the middle of the street, sometimes on a little side-walk built out from the main side-walk in the street; no flagman was there when he crossed over.

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The cross-examination of the witness should satisfy any jury that he was a sort of witness whose testimony should be received with great caution, as it was shown he testified differently, at a former trial of the cause. His is the only testimony going to the point in controversy.

On the part of the defendants, it was proved positively, by the engine driver, by the baggage man, by Michael Curtin, the acting flagman on the day of the collision, and by the switchman, that the flagman was at his post making the required signals. They also proved, by Monday, a carpenter, that he was planking Van Buren street between the railroad and the bridge; saw the plaintiff riding in a butcher's...

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