Illinois Cent. R. Co. v. Ashline

• Decision Date: 14 February 1898
• Citation: 171 Ill. 313,49 N.E. 521
• Parties: ILLINOIS CENT. R. CO. v. ASHLINE.
• Court: Illinois Supreme Court

171 Ill. 313

49 N.E. 521

ILLINOIS CENT. R. CO.

v.ASHLINE.

Supreme Court of Illinois.

Feb. 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.

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, 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 not sufficiently pleaded. We think counsel is correct in his position that the ordinance was not sufficiently set out in the declaration. The pleader was not required to set out the ordinance in haec verba, but he was required at least to set out the substance of the ordinance. Railway Co. v. Shires, 108 Ill. 619. That part of the ordinance relied upon, or all the substantial parts of the ordinance, should be set out, so that the requirements of the ordinance may be seen and known. But, while we do not think the ordinance was sufficiently pleaded, we do not think appellant could take advantage of the defect in the pleading when the ordinance was offered in evidence. If the declaration was bad, appellant might have reached the defect by demurrer; but this it did not do. Having failed to demur, the objection to the declaration will be regarded as waived. If no attempt whatever had been made to plead the ordinance, the objection to its admission in evidence would have been well taken; but when an ordinance is pleaded, although in a defective manner, the court, on the trial, may properly admit it in evidence.

It is also claimed that the court erred in permitting sections 1 and 5 of the ordinance to be read in evidence. As shown by the abstract, the only objection to the admission of the ordinance in evidence, made at the time it was offered, was that it was not admissible under the pleadings. Section 1 of the ordinance requires railroads to lower or raise their tracks to conform to the grade established by the city council, so that the tracks may be conveniently crossed, and to construct and keep in repair at the intersections of streets suitable crossings. It may be true that there was no averment in the declaration under which this section of the ordinance was admissible, but we cannot conceive in what manner the defendant was injured by the admission of the ordinance in evidence, and, if it produced no injury, there is no just ground of complaint. Section 71 of chapter 114 of the statute of the state (2 Starr & C. Ann. St. p. 1937) requires railroads to construct and maintain crossings at highways and streets, and the ordinance requires nothing more, and proof of a fact required by public law could not prejudice defendant's rights before the jury. Section 5 of the ordinance required the continuous ringing of the bell within 200 feet of every crossing within the city limits. It is claimed that the ordinance is not admissible under the declaration, which averred that defendant negligently failed to ring the bell of the engine or sound the whistle for 80 rods before reaching said public highway. Upon an examination of the plat found in the record, it will be seen that owing to the number of street crossings, and the short distance intervening from one to the other, the continuous ringing for 200 feet and the ringing for 80 rods, as averred in the declaration, practically amount to one and the same thing. We do not, therefore, think any substantial error was committed in admitting either section of the ordinance in evidence.

It is also claimed that the court erred in the admission of evidence that the deceased was a man of careful habits. It was held in Railway Co. v. Clark, 108 Ill. 113, that such evidence...