49 N.E. 521 (Ill. 1898), Illinois Cent. R. Co. v. Ashline

Citation:49 N.E. 521, 171 Ill. 313
Opinion Judge:CRAIG, J.
Party Name:ILLINOIS CENT. R. CO. v. ASHLINE.
Attorney:[171 Ill. 314] W. R. Hunter, for appellant. Paddock & Cooper, for appellee.
Case Date:February 14, 1898
Court:Supreme Court of Illinois
 
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Page 521

49 N.E. 521 (Ill. 1898)

171 Ill. 313

ILLINOIS CENT. R. CO.

v.

ASHLINE.

Supreme Court of Illinois

February 14, 1898

Appeal from appellate court, Second district.

Action by Artemise Ashline, administratrix of the estate of Lawrence Ashline, deceased, against the Illinois Central Railroad Company. A verdict was rendered for plaintiff, and on appeal by defendant to the appellate court the judgment was affirmed, and defendant appeals. Affirmed.

Phillips, C.J., dissenting.

[171 Ill. 314] W. R. Hunter, for appellant.

Paddock & Cooper, for appellee.

CRAIG, J.

This was an action brought by Artemise Ashline, administratrix of the estate of Lawrence Ashline, deceased, against the Illinois Central Railroad Company, to recover damages for the death of her husband, Lawrence Ashline, who was struck and killed by a train of cars of the defendant at a crossing, as is alleged, in the city of Kankakee, on September 4, 1892. On a trial before a jury the plaintiff recovered, and the damages were assessed at $3,800. The defendant appealed to the appellate court, [171 Ill. 315] where the judgment was affirmed, and for the purpose of reversing the judgment of the appellate court this appeal was taken.

On the trial the plaintiff offered in evidence an ordinance of the city of Kankakee, prohibiting a passenger train from running at a greater speed within the incorporated limits of the city than 10 miles an hour. The evidence was objected to because it was not admissible under the pleadings. The declaration contains six counts, but no attempt was made to plead the ordinance in any of the counts except the third. In that count it is averred that while Ashline, with all due care and caution, was walking across the said railroad track at the crossing upon a public street and highway, 'the defendant then and there, by its servants so carelessly and improperly driving and managing the train, was carelessly and knowingly running said locomotive engine and train at a great speed within the incorporated limits of said city of Kankakee, to wit, at a speed of twenty miles per hour and upward, over and across said public street crossing, and in violation of the ordinance of said city in such case made and provided (approved March 27, 1888, A. D., c. 9, § 3) said locomotive engine and train then and there ran and struck with great force and violence, when running at aforesaid speed, in violation of said ordinance, and said Ashline was then and thereby killed.' Courts do not take judicial notice of an ordinance of an incorporated town or city, or a private statute or the statute of a foreign state, and hence, when they may be material in an action, or in the defense of an action, they must be specially pleaded. Here the ordinance was pleaded, but it is said it was...

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