The Ill. Cent. R.R. Co. v. Godfrey

• Decision Date: 31 January 1874
• Citation: 1874 WL 8707,22 Am.Rep. 112,71 Ill. 500
• Parties: THE ILLINOIS CENTRAL RAILROAD COMPANYv.THOMAS GODFREY.
• Court: Illinois Supreme Court

71 Ill. 500

1874 WL 8707 (Ill.)

22 Am.Rep. 112

THE ILLINOIS CENTRAL RAILROAD COMPANY

v.THOMAS GODFREY.

Supreme Court of Illinois.

January Term, 1874.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Macon county; the Hon. ARTHUR J. GALLAGHER, Judge, presiding.

This was an action on the case, brought by appellee against appellant, to recover for injuries received from being run against by a switch engine in appellant's yard, at Decatur, a short distance north of the crossing of the Toledo, Wabash and Western railway.

The evidence shows that the defendant's road at the locality of the crossing, consists of three tracks, running in almost a right line for a distance of some 500 feet south from, and over 200 feet north from the crossing of the Toledo, Wabash and Western railway, the west and middle tracks being 7 2/10 feet apart; the passenger depot and platform being in the south-east angle of the roads; the freight house and platform in the north-west angle. The injury occurred a little north of the centre of the freight house, about 76 feet north from said railway crossing, and on the west rail of the middle track. The plaintiff was on his return home from hunting for his cow, and got upon defendant's road at the crossing of the T., W. and W. railway, and walked north between the west and middle tracks to the point where the accident occurred. The switch engine moved north on the middle track, from a point south of Eldorado street, about 500 feet south from the railway crossing, and overtook plaintiff at the point where the accident occurred, struck the plaintiff and caused the injury. He was knocked down, both his feet were run over by the wheels of the locomotive and so injured that they had afterwards to be amputated.

Persons had been in the habit of passing and re-passing, on foot, between the middle and west tracks on defendant's road, from the crossing north, past the point of accident, for a number of years, without objection by the company.

Plaintiff was well acquainted with the locality. He had been in the habit of crossing there for many years. As plaintiff states it, he “passed over the T., W. and W. railway, going home; looked behind me and didn't see any engine; got on the Central track on the north side of the T., W. and W. railway, where the roads cross; had passed there a good many times for the last seven years; I was walking along there between the two west tracks; had got about 30 steps north of the T., W. and W. railway; just as I was going north, one of the hands from the freight house said, look out; I heard him, and before I could look round I was struck; was knocked down; it was about half past 3 o'clock P. M.; didn't see any engine when I got on the road; didn't hear a whistle or bell sounded; I didn't know which track it was on when I heard the man speak.”

This comprises all the evidence as to the plaintiff's care and caution. Immediately before the accident, plaintiff was going north on the left hand side of the engine. The witness, Stafford, was riding on the engine with Adams, the engineer, and was in the cab, on the left hand side. He testifies that he saw Godfrey, the plaintiff, when the latter was 10 feet ahead of the engine, and the length of a walkingcane from the left hand rail of the middle track. “I didn't have no idea he was going to get in the way of the engine. He just looked like he staggered up against the engine; the beam on the front of the engine hit him; it sticks out over the rail about 8 inches”--(another witness testified 18 inches). Adams, the engineer, testifies that he was at his place on the right hand side of the cab, looking out of the window, with his head out, watching for the train on the other road, there being an engine and train on the T., W. and W. railway, just east of the crossing, headed west, the head standing within 3 or 4 feet of the main track of defendant's road; that he did not see plaintiff until after he was hurt; that the engineer, from the engineer's station in the cab, could not see a man walking in front of the cab, 2 to 4 feet to the left of the engine, unless the man was 25 or 30 feet ahead of the engine.

Edmunson, the yard-master, was sitting on the cross-beam in front and at the right hand side of the engine. He testifies that he was looking at the engine on the T., W. and W. railway, and did not see plaintiff. The switch engine was worked by the engineer alone--no fireman was allowed; the engine made twenty-five or thirty trips a day about the yard; fifteen or twenty trains a day crossed the crossing between sunrise and dark. The engine did not stop before crossing the T., W. and W. railway, nor after it started to move up the middle track from the switch. The evidence as to the speed of the engine, and whether more than at the rate of six miles per hour, was conflicting, as also whether the bell was rung. The evidence seemed to show quite clearly that there was a flag-man on duty at the railroad crossing, and that he signalled the switch engine to cross.

Plaintiff introduced in evidence, against defendant's objection, what purported to be a city ordinance of Decatur, prohibiting, under a certain penalty, the running of any railroad engine or train of cars at a greater rate of speed than six miles per hour, within the corporate limits of Decatur, where the accident occurred.

The foregoing presents a substantial statement of the material facts and circumstances bearing upon the questions here considered. Upon the trial the following instruction, among others, was given for the plaintiff:

“2. If the jury believe, from the evidence, that, on or about the 4th day of November, A. D. 1871, the plaintiff was walking upon the right of way of the defendant, north of the intersection of the railway of the defendant with the Toledo, Wabash and Western railroad, in the city of Decatur, Illinois, and that the place where the plaintiff was so walking was a public thoroughfare, used by the citizens of said city, to pass and re-pass thereon, without hindrance or objection by the defendant; and if the jury further believe, from the evidence, that, while the plaintiff was so walking on said right of way of defendant, and that he was using due care and caution in walking thereon, an engine of the defendant was negligently and carelessly run upon and against the plaintiff, while said engine was under the control and management of the servants of the defendant, and that the plaintiff was injured by and through such negligence and carelessness of the servants of the defendant, then, in such case, the jury should find for the plaintiff.”

And the following instructions asked by the defendant were refused:

“13. The court instructs for the defendant, that defendant, by the law, had the right to the exclusive use of its right of way and tracks for the purpose of conducting its business as a common carrier, and that plaintiff had no right, by the law, to be upon such right of way, or to do anything which would delay the defendant in the prosecution of its legitimate business, or which would obstruct or impede the progress of the engines being lawfully used by defendant in its business. And if the jury believe, from the evidence, that the plaintiff was so upon the right of way of the defendant at the time he received the injury complained of, then, unless the jury believe, from the evidence, that Adams, the engineer (if they believe, from the evidence, he was the engineer,) in charge of the engine, saw the plaintiff, and saw that he was in danger, and could have prevented the injury, and would not, but wilfully went on when he could have stopped, the jury must find for the defendant.

14. If the evidence in this case shows that the injury complained of happened on the ground or right of way used and occupied by the defendant, and that the plaintiff had no right to be where he was, then the defendant was not answerable for the injury unless it was done wilfully, because the defendant, in the use of its road, is not bound to keep a lookout on its own ground, as against those having no lawful right on the road, but may use the same for its own purpose, in its own way, and any person going on its track without permission, at such place, is there at his own peril and in his own wrong, and...