Krieger v. Aurora, E.&C.R. Co.

CourtSupreme Court of Illinois
Citation242 Ill. 544,90 N.E. 266
Decision Date22 December 1909
PartiesKRIEGER v. AURORA, E. & C. R. CO.

OPINION TEXT STARTS HERE

Error to Appellate Court, Second District, on appeal from Circuit Court, Kane County; L. C. Ruth, Judge.

Action by Christ Krieger against the Aurora, Elgin & Chicago Railroad Company for personal injuries. From a judgment of the Appellate Court affirming a judgment for plaintiff, defendant brings error. Reversed and remanded.Hopkins, Peffers & Hopkins, for plaintiff in error.

Botsford, Wayne & Botsford and Charles H. Fisher, for defendant in error.

CARTWRIGHT, J.

On November 21, 1904, three teams drawing heavy loads of stone on the St. Charles road, which runs east and west, approached from the west the crossing of the Aurora, Elgin & Chicago Railroad, which runs north and south across the highway. Andrew Anderson was driving the first team, and Christ Krieger, defendant in error, was driving the second, with a space of somewhere from 8 to 15 feet between them. Pete Anderson was driving the third team. There were two tracks, and the west one was the main track, on which passenger cars were run. The first wagon passed safely over the track; but the rear end of the wagon driven by Krieger was struck by a motor car coming from the south, and he was thrown from the wagon and received injuries for which he brought an action on the case in the circuit court of Kane county against plaintiff in error. He secured a verdict and judgment for $3,500, and the judgment was affirmed by the Appellate Court for the Second District. The record has been brought to this court by writ of error.

The defendant asked the court to direct a verdict of not guilty, which the court refused to do, and the arguments of counsel for the respective parties are first directed to that subject. The railroad was a third-rail electric road, and on the west side of the main track, and south of the highway, there was a power house and substation of defendant. The building stood 15 feet west of the track and 63 feet south of the crossing, and was 36 feet east and west by 57 feet north and south. There was an embankment of gravel extending south from the highway between 600 and 1,000 feet, except at the power house and about 20 feet south of it. Whether one approaching on the highway could see the top of the car above this embankment was a disputed matter of fact; but the power house was an obstruction to the view, and the evidence for the plaintiff was that the embankment prevented seeing a car except for the space of 20 feet south of the power house. All three of the teamsters testified that they did not hear any whistle, and the plaintiff testified: That he looked and listened before he drove on the track and did not see or hear anything; that the car was running 60 or 70 miles an hour; and that when his horses were on the track he saw the car coming and whipped his horses but did not succeed in getting out of the way. Andrew Anderson testified that plaintiff's team was 10, 12, or 14 feet behind his team, that when he got on the track he saw the car and struck his team and then held his whip up as a signal, but the plaintiff testified that he was on the track when Anderson held up his whip and gave the signal. The evidence for the defendant was: That the whistle was regularly blown; that there was a danger whistle when the first team was on the track and another as plaintiff was coming on the track; that every effort was made to stop the car; and that a person in the highway 18 feet from the track could see a car for a long distance. In deciding the motion the court was bound to take the evidence for the plaintiff as true, and on that assumption there was no error in refusing to direct the verdict.

The defendant asked the court to instruct the jury that if the plaintiff suddenly and unexpectedly drove upon and across the track in front of the moving car of the defendant which occasioned the injury, and that the servants of the defendant did all that could be done, in the exercise of ordinary care, at and before the time of the injury, to avoid colliding with the vehicle, the jury should find the defendant not guilty, and the court refused to give the instruction. The charge in the declaration was the general careless and improper driving and managing of the motor car, and the jury would understand the instruction as limiting the efforts of the servants of the defendant to avoid injury to the plaintiff after discovering that the plaintiff's team was on the track in front of the car. The instruction directed a verdict without reference to the alleged unusual and dangerous rate of speed or to the question of giving signals, and it only assumed to state facts which would relieve the defendant of the charge of negligence in one particular. The court did not err in refusing to give it.

Another instruction tendered by the defendant, and refused, directed the jury to find for the defendant if the plaintiff was guilty of any negligence which contributed in any degree to bring about his injury. To sustain the action of the court, it is argued that the instruction required extraordinary care on the part of the plaintiff, and that he might be guilty of slight negligence and still recover; but all the puzzling refinements as to degrees of care have been done away with in this court, and the accepted rule is that if one exercises the degree of care required of him under the circumstances he is guilty of no negligence, but if he fails to do so he is guilty and cannot recover. The instruction was a correct statement of law; but the same rule was given to the jury in various instructions at the instance of the defendant. For that reason it was not error to refuse the instruction.

The court instructed the jury, at the request of the plaintiff, as follows: ‘The court instructs the jury that if you believe, from a preponderance of the evidence, that the plaintiff has proved his case as laid in his declaration, then you will find the issues for the plaintiff.’ This was a peremptory instruction to find for the plaintiff if the jury should find that he had proved his case as laid in the declaration, and it is objected to for the reason that the declaration limited the exercise of care on his part to the time when he was on the track, while the principal question that had been tried and was in controversy was whether he was guilty of negligence in placing himself in that position, and proof of what was averred in the declaration in that respect would not warrant a recovery. Substantially the same instruction has been before this court in many cases, and the giving of it has generally been held not ground for reversing a judgment. The general rule often declared is that instructions must in a clear, concise, and comprehensive manner inform the jury as to what material facts must be found to recover or to defeat a recovery. Moshier v. Kitchell & Arnold, 87 Ill. 18. The rule adopted by nearly all courts is that the court must define the issues to the jury without referring them to the...

To continue reading

Request your trial
43 cases
  • Hoelzel v. Railway Co., 31835.
    • United States
    • United States State Supreme Court of Missouri
    • July 9, 1935
    ......98; Cleveland Railroad Co. v. Kennan, 190 Ill. 217; Bux v. Railroad Co., 229 Ill. App. 50; Krieger v. Railroad Co., 242 Ill. 544; Knox v. Rolling Mill Corp., 236 Ill. 437. (2) The court did not err ......
  • Connole v. E. St. L. & Sub. Ry. Co., 33538.
    • United States
    • United States State Supreme Court of Missouri
    • March 11, 1937
    ...he is guilty of no negligence, but if he fails to do so he is guilty and cannot recover" [Krieger v. Aurora, E. & C. Railroad Co., 242 Ill. 544, 547, 90 N.E. 266, 268] "unless the conduct of the other party is willful and wanton" [Bushman v. Calumet & S.C. Ry. Co., 214 Ill. App. 435, 439. S......
  • Wolf v. New York, C. & St. L. Railroad Co., 36828.
    • United States
    • United States State Supreme Court of Missouri
    • March 12, 1941
    ...to the truck (and the passengers therein), was not limited to the amount it was seen on the track. Krieger v. Aurora, E. & C. Ry. Co., 242 Ill. 544, reversing 148 Ill. App. 613. (c) The obligations, rights and duties of the defendant railroad and the deceased Arthur Wolf were mutual and rec......
  • Wolf v. New York, C. & St. L. R. Co.
    • United States
    • United States State Supreme Court of Missouri
    • March 12, 1941
    ...... therein), was not limited to the amount it was seen on the. track. Krieger v. Aurora, E. & C. Ry. Co., 242 Ill. 544, reversing 148 Ill.App. 613. (c) The obligations, rights. ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT