St. Louis v. Dunn

• Decision Date: 30 June 1875
• Citation: 1875 WL 8452,78 Ill. 197
• Parties: ST. LOUIS, VANDALIA AND TERRE HAUTE R. R. CO.v.MARGARET DUNN, Admx.
• Court: Illinois Supreme Court

78 Ill. 197

1875 WL 8452 (Ill.)

ST. LOUIS, VANDALIA AND TERRE HAUTE R. R. CO.

v.MARGARET DUNN, Admx.

Supreme Court of Illinois.

June Term, 1875.

APPEAL from the Circuit Court of St. Clair county; the Hon. WILLIAM H. SNYDER, Judge, presiding.

Mr. WM. H. UNDERWOOD, and Mr. JOHN B. BOWMAN, for the appellant.

Mr. A. J. P. GARISHEE, Mr. WM. G. KASE, and Mr. WM. H. BENNETT, for the appellee. Mr. JUSTICE WALKER delivered the opinion of the Court:

Appellee brought an action on the case, in the St. Clair circuit court, against appellant, to recover damages for negligently causing the death of her husband. It appears that appellee and her husband, with their two children, on the 10th day of March, 1872, left their home, in East St. Louis, about noon, to visit an aunt of appellee residing in St. Louis, Mo., and they spent the afternoon there. At about 5 1/2 o'clock in the afternoon, they started on their return home, appellee carrying her younger child, and her husband the older. At the Mississippi river they were detained some time for the ferryboat to cross over. On landing on the east side, they started and reached the street car line, but missed the cars. They then started to walk from there to their home, and, whilst crossing Christy avenue, the husband, some distance in advance of appellee, where there were four railroad tracks in the street, passed the watchman's house, used by him whilst on duty, and, as deceased stepped on the most easterly of the four tracks, a passenger train came around on the curve, from the round house, and struck and ran over him, cutting off his legs and otherwise injuring him, from which he died at about 9 o'clock that evening. The leg or foot of the child which he was carrying, was cut off, and, after lingering a couple of weeks, it also died.

On the last trial before the court and a jury, a verdict was found for plaintiff, and, after overruling a motion for a new trial, the court pronounced judgment on the verdict, and defendant prosecutes this appeal.

This was the last of five trials in the court below, all of which, but one, resulted in favor of plaintiff, and in that the jury were unable to agree.

Appellee claims that the company was guilty of negligence that renders it liable for damages. But the company insists that deceased was guilty of such negligence on his part as should preclude a recovery. It is insisted that appellant did not ring a bell or sound a whistle; that the train was running at a greater rate of speed than was permitted by the ordinance of the city; that there was no watchman on duty to warn deceased of danger at the crossing of the street where he was killed. On all of these questions there was a conflict of the evidence, such as could only be correctly determined by seeing and hearing the witnesses testify. The jury had that opportunity and advantage, and have found all or some of these issues in favor of appellee. That the flagman was not at his post, and in the performance of his duty, we think the evidence preponderates, and warranted the finding on that question.

If, then, a bell was not rung, a whistle not sounded, or the train was running at an unauthorized rate of speed, or the flagman was not on duty, and failed to give the deceased proper warning, the omission to perform either of these acts would be negligence in the company. At such a time, and in such a place, it would be gross negligence to omit the performance of either of these duties, and if the jury found that either was omitted, then the judgment should be sustained. The company was operating a dangerous machine in a populous city, and on a thoroughfare at an hour of the day when the engineer and other officers of the company must have known it would be thronged with people. Being acquainted with the place, and, no doubt, aware of the fact that persons thronged the place in passing over its track, it should have been on its guard, and have scrupulously observed every duty imposed upon it, for the safety of the people. It was so public, and so much used, that a watch or flagman's house had been erected, and such an officer appointed to warn persons of danger. We may, therefore, infer that it was a place of very great danger, or this precaution would not have been necessary. It was not supposed that persons would or ever could use this thoroughfare in conjunction with these railroad tracks occupying the street, without constant risk and great danger, and hence it became necessary that this further precaution should be taken to secure their safety. The tracks were at...