Cleveland, C., C. & St. L. Ry. Co. v. Best

• Decision Date: 01 November 1897
• Citation: 169 Ill. 301,48 N.E. 684
• Court: Illinois Supreme Court
• Parties: CLEVELAND, C., C. & ST. L. RY. CO. v. BEST.

169 Ill. 301

48 N.E. 684

CLEVELAND, C., C. & ST. L. RY. CO.

v.BEST.¹

Supreme Court of Illinois.

Nov. 1, 1897.

Appeal from appellate court, First district.

Action by Clifford Best against the Cleveland, Cincinnati, Chicago & St. Louis Railway Company for personal injuries caused by defendant's negligence. From a judgment of the appellate court (68 Ill. App. 532) affirming a judgment in favor of plaintiff, defendant appeals. Reversed.

Magruder, J., dissenting.

John T. Dye and Remy & Mann, for appellant.

appellant.

William Street (John Winans and William Ruger, of counsel), for appellee.

CARTWRIGHT, J.

At about 8 o'clock on the morning of March 9, 1892, appellee arrived at the Union Depot in Cincinnati on a passenger train, over the Queen & Crescent Railroad, from Jacksonville, Fla., on his way to Indianapolis. The passenger trains of appellant start from that depot, and there were four such regular trains to leave that day for Indianapolis, one of which left at 8:30 in the morning, and another at 1:10 in the afternoon. Appellee was about 21 years old. The previous summer he had followed the races in several states as a score-card boy, and about January 1, 1892, he had gone to Jacksonville, Fla., where he had worked as a bell boy in an hotel, and at packing oranges. His home was at Janesville, Wis., and he was returning to that place. He spent the forenoon in Cincinnati without any apparent business to detain him, and between 11 and 12 o'clock was at a livery stable one mile from Riverside, a station where appellant had a freight yard, nearly four miles from the Union Depot, and where the passenger trains for Indianapolis did not stop. He went from the livery stable to Riverside, and remained about that place until 3:30 in the afternoon. Between the station at Riverside and the freight yard there was a public highway and a sidewalk, beyond which there was a retaining wall along the freight yard, four or five feet high, built of stone. The freight yard was reached by a ladder or stairway of four of five wooden steps. The second section of a freight train left these yards at 3:50 in the afternoon, and shortly before that time appellee went from the station across the highway, and up into the freight yard. The caboose of the freight train stood about 100 yards from the station in the freight yard where the train was made up. The train was an ordinary freight train, loaded with coal and miscellaneous merchandise. It was destined for Indianapolis, 107 miles from Riverside. He rode on the train to Brookfield, Ind., about 92 miles, where it stopped to take water, and was leaving that place when a rear end collision occurred, through another freight train running into it, in the night, and in a blinding snowstorm. He was pinioned fast in the wreck, and so burned by the stove that it necessitated amputating the right leg two inches below the knee, and the four small toes of the left foot. Passengers were not carried on freight trains between Cincinnati and Indianapolis, and had not been for eight years or more, and employés were forbidden to accept or carry passengers on such trains. Appellee brought this suit to recover damages for his injuries, and in the superior court of Cook county obtained judgment for $12,500. An appeal was taken by appellant to the appellate court for the First district, where one of the justices took no part in the case, and the other justices disagreed, so that there was no decision in that court, and the judgment was affirmed by operation of law.

As the declaration stood at the trial, there were two counts, the first of which alleged that the plaintiff became a passenger for hire in one of the cars of defendant, to be carried from Riverside to Indianapolis, and was injured by defendant's negligence. The second, although not using the term ‘passenger,’ was in substance the same, and alleged that plaintiff, with the knowledge and consentof the conductor, entered a car adapted to and used for the carriage of passengers, to be carried from Riverside to Indianapolis, and was ready to pay proper and usual fare when requested, whereupon it became the duty of defendant to carry him safely, but the duty was disregarded, etc. The plea was the general issue.

The first instruction given at the request of the plaintiff was as follows: ‘If you find from the evidence that the plaintiff entered the caboose car in question, and rode therein from Riverside station, a distance of ninety miles or more, to the knowledge and with the consent of the defendant's conductor in charge of defendant's train to which said caboose car was attached; and you further find that the plaintiff was at the time of the collision and injury in the exercise of ordinary care; and you further find that the collision and injury to the plaintiff was caused by negligence of the agents or servants, or any of them, of the defendant,-then you should find for the plaintiff.’ The instruction directed the jury to find a verdict for the plaintiff on the issues submitted to them, if they found from the evidence the facts stated in it. Plaintiff testified that the conductor stood near and facing him when he got on the car, and his evidence showed that he rode with the consent of the conductor. In the collision the conductor and brakeman were both killed, so that the evidence of such knowledge and consent came from the plaintiff alone. It was proved that the conductor was not authorized by the rules and regulations of defendant to carry passengers, but was expressly forbidden to do so, and, as before stated, freight trains had not carried passengers for years prior to that time. The plaintiff did not enter the caboose at a passenger station, or any place apparently designed for the reception of passengers, but 100 yards distant from the station, in a freight yard used for making up freight trains. The caboose was of the smallest kind, such as are attached to all freight trains, and necessary for carrying tools and supplies and for the accommodation of trainmen. It was such as are always attached to trains exclusively for freight, without any provision for the comfort or convenience of passengers. There was no invitation nor direction to the plaintiff to take this train, and he was not misled in any way as to the authority of the conductor to accept him as a passenger. There was no evidence that the defendant had held out the conductor as having authority to accept or carry passengers on the train. On the other hand, there was evidence that the plaintiff, after the accident, said that he was ‘busted’ in Cincinnati; that he got in with the conductor and brakeman, and the conductor agreed to carry him to Indianapolis; that he said to another witness, ‘I was bumming my way;’ and that the night was cold, and he had come into the caboose when the train stopped; and that he said to another witness that he knew he had no business on the...