Chicago, B.&Q.R. Co. v. Perkins

Decision Date09 May 1888
Citation125 Ill. 127,17 N.E. 1
CourtIllinois Supreme Court
PartiesCHICAGO, B. & Q. R. CO. v. PERKINS.

OPINION TEXT STARTS HERE

Appeal from appellate court, Second district.

Bernard Dougherty was killed September 7, 1881, at Columbus-Street crossing, in the city of Ottawa, by a passenger train of the Chicago, Burlington & Quincy Railroad Company, and shortly thereafter this action was commenced by Bridget Dougherty, then administratrix. The declaration alleged the misconduct on the part of the company to be the running of the train at an improper rate of speed, the failure to ring the bell and sound the whistle, and the failure to keep a flag-man stationed at the crossing. The fourth count of the declaration, also, after setting forth an ordinance of the city of Ottawa, passed November 5, 1867, by which the Ottawa, Oswego & Fox River Valley Railroad Company, lessor of defendant, secured the privilege of using for its right of way certain streets of the city, and which limited the speed of its trains to five miles per hour, alleged the running of the train at too great a speed, the failure to ring the bell, and other omissions. The cause was tried at the March term, 1882, of the La Salle circuit court, resulting in a verdict and judgment in favor of plaintiff for $4,000. From this judgment an appeal was taken to the appellate court, and at the December term, 1882, the judgment was reversed, and the cause remanded. It was again tried at the March term, 1883, of the circuit court, and the result was a verdict and judgment for $5,000 in favor of plaintiff, which judgment, upon appeal, was affirmed by the appellate court at the December term, 1883. Thereupon the cause was removed by appeal to the supreme court, where, May 19, 1884, the judgment was reversed, and the cause remanded. Railroad Co. v. Dougherty, 110 Ill. 521. Upon the remandment of the cause to the circuit court, (Noah C. Perkins, administrator de bonis non, having in the mean time been substituted as plaintiff,) defendant, on January 16, 1885, filed a petition for a change of venue, on the ground that GEORGE W. STIPP, one of the judges of the circuit, was prejudiced against it, and that the presiding judge, CHARLES BLANCHARD, had been of counsel for plaintiff. This motion was overruled, on the ground that the other circuit judge, JOSIAH MCROBERTS, was then holding a branch court, and was not alleged to be prejudiced against defendant, and it could have a fair trial before him, and the removal of the cause to another county was unnecessary. Defendant excepted. On February 21, 1887, the cause was called for trial before DORRANCE DIBELL, then presiding judge, and submitted to a jury, and the result was a verdict and judgment in favor of plaintiff for $5,000. Defendant appeals to the appellate court, and thence to the supreme court. Defendant's other exceptions, so far as need be stated, were as follows: (1) Defendant challenged the juror Fry for cause shown by the following examination: ‘My name is Samuel Fry. I am on the regular panel. Lived in Ottawa at the time of the accident. I heard about it at the time. I didn't pay much attention to it. Of course I heard folks talk of it in the saloon. Parties who I talked to told how it happened. I didn't form any opinion at all as to how it happened. I keep a saloon in Ottawa, east of the court house.’ The Court. If you are taken as a juror, the court will instruct you that it will be your duty not to let anybody talk in your hearing.' Artswer. ‘I can't stop all of them, you know.’ The challenge was disallowed, and defendant excepted. The juror was then excused peremptorily. (2) George Pool stated: ‘I am a farmer. Have read about the case in a newspaper. I did not form or express an opinion relating to the merits of the case. I think I read a newspaper account of the accident about the time it occurred. From what I read I formed some opinion. I have that still, some. I don't know as that opinion would have much, if any, influence upon me sitting as a juror. I think I could try the case as fairly and impartially as if I had heard nothing, and had formed no opinion. I have no feelings or prejudice against a railroad company. I have no acquaintance with Mr. Dougherty.’ The juror was accepted by defendant, and was turned over to plaintiff for examination, and testified as follows: ‘I am acquainted with Richolson & Gentleman. Have employed them. They have business in hand for me now. Mr. R. has been my attorney for four or five years. That would not make any difference with me at all if taken as a juror. It would not embarrass me at all to find a verdict against a company that Mr. Richolson represents. I have no prejudice against suits of this nature. I read an account in the newspaper of the killing of Dougherty, and at that time I made up my mind the company was liable. Nothing whatever, by reason of talking with any person or that has been said to me from any source, has changed my mind, for I don't think I have talked with anybody about it. I think I could stand in the same light as a juror that I would if I never had read or heard anything on the subject.’ The juror was challenged by plaintiff for cause, and allowed by the court, against defendant's objection. (3) Attorney for plaintiff, in stating the case to the jury, made the following remark: ‘Now, $5,000 is all this lady can recover. That is fixed by law. Railroad companies have somehow or other fixed, by an act of the legislature, a limit beyond which jurors cannot go.’ Objection interposed. ‘Of course you do. I expected you to take an exception long before. It is not the first time of this excepting business.”

On the question of a change of venue, the court below held that the statute under which it was asked was passed before the present law giving three judges to a circuit; and under the present law there is no reason for the change, and the former statute was thus modified by the latter. To show a contrary doctrine, the following authorities were cited: Fuller v. Bates, 96 Ill. 133; Cooley, Const. Lim. 159; Chicago v. Quimby, 38 Ill. 278;Foley v. People, Breese, 58; Holbrook v. Nichol, 36 Ill. 167;Young v. Stearns, 91 Ill. 222;Frye v. Railroad Co., 73 Ill. 403;Fowler v. Pirkins, 77 Ill. 273;Wragg v. Penn Tp., 94 Ill. 11;Ottawa v. La Salle Co., 12 Ill. 341;People v. Barr, 44 Ill. 198;Supervisors v. Campbell, 42 Ill. 492;Hume v. Gossett, 43 Ill. 299;Perteet v. People, 65 Ill. 230;Card v. McCaleb, 69 Ill. 314;Coal Co. v. Taylor, 81 Ill. 592;Covington v. East St. Louis, 78 Ill. 552. The cases of Mapes v. Scott, 94 Ill. 382;Insurance Co. v. Tolman, 80 Ill. 106;Walsh v. Ray, 38 Ill. 30;Ensminger v. People, 47 Ill. 384; and Myers v. Walker, 31 Ill. 353,—as well as many others in this court, lay down the doctrine that the statute in relation to a change of venue, is mandatory. The legislature has provided that railroad companies, ‘Where the public authorities, having charge of any street, shall notify any agent of the corporation that a flag-man is necessary,’ shall place and retain a flag-man at such crossing. It follows as a natural and unavoidable conclusion that the company cannot be accused of a want of ordinary care in not placing a flag-man at that particular crossing, when the notice provided for by the statute had not been given. Damerell's Case, 81 Ill. 451;Railroad Co. v. Siltman, 67 Ill. 74;Railway Co. v. Clark, 70 Ill. 276;Railroad Co. v. Harwood, 80 Ill. 90;Same v. Henks, 91 Ill. 411;Same v. Grable, 88 Ill. 443;Volk v. Roche, 70 Ill. 299;Railroad Co. v. Murray, 62 Ill. 326.

Did the court err in refusing a change of venue? Two complaints are made under this head: First, that the court below erred in overruling the motion for a change of venue; and, second, that it erred in overruling defendant's motion to strike the cause from the docket. In neither complaint is there any merit. Curran v. Beach, 20 Ill. 259;Myers v. Walker, 31 Ill. 363. But there is another fatal objection to this application for a change of venue, and that is that the affidavit in support of the petition is not made by any officer of the corporation, but by one who is at best but a mere hired man. The statute does not, in terms, allow a change of venue to a corporation, but the supreme court has very properly held that corporations are included within the spirit of the statute. Insurance Co. v. Mehlman, 48 Ill. 317. That a flag-man was necessary for the safety of the public at this crossing is conclusively shown. Such being the evidence, it is plain that the jury were not merely authorized to find defendant guilty of negligence in failing to station a flagman at the crossing, but they were absolutely required so to find. Whether it was convenient or inconvenient for defendnat to provide a flag-man was not a question to be considered. Railway Co. v. Knutson, 69 Ill. 103;Shaber v. Railway Co., 28 Minn. 107, 9 N. W. Rep. 575; 2 shear. & R. Neg. § 484; Whart. Neg. § 799; Railway Co. v. Henks, 91 Ill. 412;Railway Co. v. McElwee, 67 Pa. St. 311; O'Leary v. Mankato, 21 Minn. 65;Phelps v. Mankato, 23 Minn. 277. To the complaint that the court refused to allow defendant's challenge of the juror Fry there are two good answers: First. There was no sffiucient cause for challenge. Second. It does not appear that defendant exhausted its peremptory challenges, as is required by the ruling in Robinson v. Randall, 82 Ill. 522;Mingia v. People, 54 Ill. 277.Samuel Richolson and O. F. Price, for appellant.

Duncan, O'Conor & Gilbert, for appellee.

CRAIG, J.

This cause was before us at a former term, and the judgment was reversed, and the cause remanded, for the reason that an erroneous instruction had been given for the plaintiff. Railroad Co. v. Dougherty, 110 Ill. 523. After the remanding order had been filed at the June term, 1885, of the circuit court of La Salle county, and on the 16th day of January, the defendant filed a petition for a change of venue. The ground relied upon in the petiton for a...

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