St. Louis, A.&T.H.R. Co. v. Eggmann

• Decision Date: 01 April 1896
• Citation: 161 Ill. 155,43 N.E. 620
• Court: Illinois Supreme Court
• Parties: ST. LOUIS, A. & T. H. R. CO. v. EGGMANN.

161 Ill. 155

43 N.E. 620

ST. LOUIS, A. & T. H. R. CO.

v.EGGMANN.

Supreme Court of Illinois.

April 1, 1896.

Appeal from appellate court, Fourth district.

Action by E. J. Eggmann, administrator of the estate of Edward O'Connell, deceased, against the St. Louis, Alton & Terre Haute Railroad Company, in the city court of East St. Louis. A judgment for plaintiff was affirmed by the appellate court (60 Ill. App. 291), and defendant appeals. Affirmed.

Turner & Holder, for appellant.

A. R. Taylor and Wise & McNulty, for appellee.

BAKER, J.

This is an appeal from a judgment of the appellate court affirming a judgment of the city court of East St. Louis for the sum of $5,000, against appellant, and in favor of appellee, as administrator of the estate of Edward O'Connell, deceased. The declaration is a single count, containing three distinct charges of negligence,-the first, carelessness and recklessness in running the engine of appellant without looking out for persons upon the track, and especially for the deceased, and without giving any signal of the approach of the train; the second, violation of a city ordinance which required the bell of every engine running upon a track in the city to be rung continuously; and the third, violation of another ordinance which prohibited the running of an engine within the city at a greater rate of speed than 10 miles an hour. A general demurrer to the declaration was filed and overruled. Appellant then pleaded the general issue. It appears that deceased had been for some time in the employ of appellant as yard clerk and watchman, with the powers of a policeman, at the city of East St. Louis; that, on the morning of May 2, 1893, one of appellant's engines was sent to Pinckneyville for purposes of extra work, and deceased rode on the engine as far as the lumber yard in East St. Louis, and then alighted from it. He walked some little distance in the direction from which he had come, and then, standing near the track with his back to the engine, was engaged, for the next few minutes, either in taking the car numbers or in loading a revolver. Meanwhile, the engineer, finding the main track blocked with cars, backed the engine, by direction of the yard master, that he might run upon a side track, and proceed around the obstruction, instead of waiting for the main track to be cleared. The engine backed down the track, and ran into the deceased while he was engaged as above indicated, inflicting upon him the injuries from which he died a few hours later. That the deceased met his death through the negligence of appellant's servants, while himself in the exercise of due care, has been conclusively established by the judgments below.

At the trial appellee read in evidence, over the objection and exception of appellant, sections 583 and 584 of the ordinance of the city of East St. Louis. Section 583 prohibited the running of passenger trains or cars within the limits of the city at a greater rate of speed than 10 miles an hour. Section 584 required the bell of every locomotive engine to be rung continuously while running upon any railroad track within the city. Several reasons are urged why these ordinances were not competent evidence. First, it is said that there is no proper averment in the declaration that, at the time deceased met his death, there was in force, in the city of East St. Louis, an ordinance prohibiting any locomotive engine to be run at a greater rate of speed than 10 miles an hour. There is an averment that the conduct of defendant's servants in running the engine at a greater rate of speed than 10 miles an hour, in violation of the ordinance of the city of East St. Louis, contributed directly in causing the death of the deceased. Appellee had the right to prove the averments of his declaration. If this averment is insufficient,it is too late now, after verdict and judgment, to complain of it. Railway Co. v. O'Conner, 115 Ill. 254, 3 N. E. 501. However, appellant must be considered as having waived any such objection to the admission of the ordinance in evidence; for, when offered, no objection was made to its competency on that ground. Railroad Co. v. Voelker, 129 Ill. 540, 22 N. E. 20. Second, it is said that neither of said ordinances applies to this case, because deceased was an employé of appellant, working in the company's yards. Such is not the law. Railroad Co. v. Gilbert, 157 Ill. 354, 41 N. E....