Elgin, J.&E. Ry. Co. v. Lawlor

• Decision Date: 23 October 1907
• Court: Illinois Supreme Court
• Parties: ELGIN, J. & E. RY. CO. v. LAWLOR.

229 Ill. 621

82 N.E. 407

ELGIN, J. & E. RY. CO.

v.LAWLOR.

Supreme Court of Illinois.

Oct. 23, 1907.

Appeal from Appellate Court, Second District, on Appeal from Circuit Court, Will County; A. O. Marshall, Judge.

Personal injury action by Michael Lawlor against the Elgin, Joliet & Eastern Railway Company. From a judgment of the appellate Court for the Second District, affirming a judgment for plaintiff, defendant appeals. Affirmed.

J. L. O'Donnell and T. R. Donovan (Knapp, Haynie & Campbell, of counsel), for appellant.

Barr, Barr & Barr, for appellee.

CARTWRIGHT, J.

The Elgin, Joliet & Eastern Railroad crosses a public highway known as East Cass street, in the town of Joliet, near the city limits of the city of Joliet. The highway runs somewhat north of east, and the railroad slightly west of north, so that they intersect at right angles. At or soon after six o'clock in the evening of September 22, 1904, the appellee, Michael Lawlor, was driving east on said highway with a horse and old open buggy, and a man named Frank Hurley was with him. There were three tracks at that place, and as appellee came toward the crossing an engine of the Michigan Central Railroad Company was pushing a train of 15 box cars of that road from the south on the east track, to deliver them at the yards of the appellant north of the crossing. The train crew were employés of the Michigan Central Railroad Company, and two of them were standing on the north end of the first car approaching the crossing. The west rail of the west track was about 40 feet west of the middle of the east track, and after coming to the west track there was no obstruction to the view of the approaching train. The appellee drove across the west track and middle track, and as he came upon the east track the buggy was struck by the train. Appellee was thrown out and sustained a number of bruises, and the buggy was shattered. The suit was brought by him in the circuit court of Will county to recover damages for his injuries, and he charged appellant with negligence of the train crew in handling and driving the engine and cars and with neglect to ring a bell or blow a whistle, as required by the statute. The plea of appellant was the general issue, and upon a trial there was a verdict finding appellant guilty and assessing appellee's damages at $1,650. The Appellate Court for the Second District affirmed the judgment.

It is first contended that the circuit court erred in refusing to direct a verdict of not guilty at the request of the defendant. The question presented by that request was one of law, and we are of the opinion that the court did not err in refusing to declare, as a matter of law, that there was no evidence fairly tending to prove a neglect of the statutory duty charged in the declaration, or that the evidence proved plaintiff guilty of negligence as a conclusion of law. There was evidence for the defendant that plaintiff was intoxicated; that he was whipping his horse a block and a half from the crossing; that he dropped his whip in the road and went upon the crossing at a run or gallop or very fast trot; that he did not look either way or notice the approaching train; and that after the accident he made a statement showing that he could not hold the horse. This evidence was contradicted by testimony for the plaintiff that he had not drank enough to affect him; that he drove upon the crossing at a moderate gait; that the day was cloudy, and it was getting dusk; that plaintiff heard engines up north and looked toward the north; that it did not occur to him that a train might be coming from the south; but that he looked in that direction also. There was also evidence tending to prove that no statutory signal was given, although the fact was disputed. Hurley said that he did not look for trains or pay any attention to them, but looked on his own side, which was the north. It is insisted that it would have been physically impossible for the plaintiff to look toward the approaching train and not see it. Whether that is so or not depends to some extent upon the degree of light at the time. In any event, a failure to look and listen cannot be said to be negligence as a matter of law, since there may be circumstances excusing such failure (Chicago & Northwestern Railway Co. v. Dunleavy, 129 Ill. 132, 22 N. E. 15;Chicago & Northwestern Railway Co. v. Hansen, 166 Ill. 623, 46 N. E. 1071), and it is not denied that there may have been engines north of the crossing which attracted plaintiff's attention.

Much complaint is made of the conduct and remarks of the trial court in the presence of the jury. The attention of the witness Frank Hurley, testifying for the plaintiff, had been called to a conversation with Seneca Hammond, and he was asked if he did not say to Hammond, ‘We saw the train coming up the track and heard the train whistle, but couldn't stop the horse in time,’ and also that the plaintiff whipped the horse before he got on the track, and that was why he could not stop him. Hammond, being called as a witness for defendant, testified that he asked Hurley how it happened, and Hurley said they were driving so fast they could not stop. He was then asked what, if anything, Hurley said to him. On objection to the question the court said: ‘No, I don't think we can go into that; and another question is whether it should go in as a part of the res gestae.’ The court was right in sustaining the objection, for the reason that defendant had no right to call for the conversation by asking what Hurley said to the witness. The only right of the defendant was to ask Hammond whether the statements repeated to Hurley were made, and the question would have been answered by yes or no; but the reason given by the court was not a good one, and what was said about the res gestae was improper. After the ruling, however, the question was repeated and answered, the witness stating everything that Hurley said, and defendant had no cause of complaint. After the witness had given the conversation, counsel for the defendant asked this question: ‘Give the conversation between you and Mr. Hurley.’ And the court said: ‘He has.’ There was no occasion to repeat the conversation, and no exception was taken to what the court said which is now complained of. Hammond made a statement in which he got the order of events confused, and the court asked him if he was certain about it, and stated that it did not seem credible. It is not proper for a court to say anything to affect the credibility of a witness with the jury, but the court intended nothing of the kind in this case, and the effect was not to discredit...