Chicago, R.I &P. RY. Co. v. Clough

• Decision Date: 07 May 1891
• Court: Illinois Supreme Court
• Parties: CHICAGO, R. I. & P. RY. CO. v. CLOUGH.

134 Ill. 586

29 N.E. 184

CHICAGO, R. I. & P. RY. CO.

v.CLOUGH.¹

Supreme Court of Illinois.

May 7, 1891.

On rehearing. For former opinion, see 25 N. E. Rep. 664. Petition denied.

BAKER, J.

The only point urged for a rehearing is that in disposing of the appeal we did not make special mention of one of the grounds which was relied on for a reversal of the judgment. The matter in question did not, as seems to be supposed, ‘escape the observation of the court,’ for it was duly considered; but we thought that the views expressed in the opinion obviated any necessity for its discussion. At the trial one of the witnesses was permitted to testify, over the objections of the appellant, that the flagman, in addition to attending to the crossing, was in the habit of cleaning the lamps of some eight or ten of the switchmen for pay. It is claimed that this testimony was not only inadmissible, but clearly prejudicial to appellant. The flagman may have been in the habit of cleaning the lamps, non constat he ever did it while on duty as flagman, or to the neglect of his duties as such. To say that the circumstance of such lamp-cleaning was evidence tending to show that the flagman was in the habit of neglecting his regular duties in order to make money by cleaning the lamps of the switchmen in the yard seems to be placing a forced and too broad a construction upon it. But, conceding that the fact stated was evidence tending to prove customary negligence, and that evidence of that kind was inadmissible, yet that, in this particular case, it worked no detriment, we think is manifest from the record. It is, as we have heretofore seen, a conceded fact that the flagman knew of the near approach of the train by which the injuries were inflicted, and, as we have also heretofore seen, the jury found in their special findings that the flagman first gave the plaintiff a signal to cross the tracks, and afterwards gave him a signal to stop, and that the signal to stop was not given in time for the plaintiff to avoid the injury. It thus affirmatively appears that the conclusion of the jury that the flagman was guilty of culpable negligence was based upon a finding of the fact, which is here conclusive, that he was guilty of the specific negligence indicated by the special findings, and which is charged in the second additional count of the declaration. Such being the case, appellant is legally bound to respond in damages to the full measure of compensation for...