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

• Citation: 179 Ill. 77,53 N.E. 572
• Court: Supreme Court of Illinois
• Decision Date: 17 April 1899
• Parties: CHICAGO, B. & Q. R. CO. v. MUROWSKI.

179 Ill. 77

53 N.E. 572

CHICAGO, B. & Q. R. CO.

v.MUROWSKI.

Supreme Court of Illinois.

April 17, 1899.

Appeal from appellate court, First district.

Action by Anton Murowski against the Chicago, Burlington & Quincy Railroad Company. From a judgment by the appellate court affirming a judgment for plaintiff (78 Ill. App. 661), defendant appeals. Affirmed.

This was an action brought by Anton Murowski to recover damages for a personal injury received on the 11th day of July, 1893, in the city of Chicago, at a place known as ‘Oakley Avenue,’ immediately north of the gate of the McCormick Reaper Works. Oakley avenue is a paved highway running north and south. It terminates at the south opposite the north gate of the McCormick Reaper Works. The reaper works were inclosed by a high fence running east and west. The tracks of appellant where the accident occurred cross Oakley avenue immediately north of the reaper-works fence, running east and west and parallel with that fence. The tracks were used for the purpose of collecting and hauling freight, and are four in number. A switch led from the tracks into the reaper works. The first track is constructed within three or four feet of the reaper-works fence. Oakley avenue is planked between the tracks of the appellant's railroad, and has been planked for 10 or 11 years. Appellee was struck and injured on the planked tracks opposite the reaper-works gate by a freight train going west. On a trial the jury returned a verdict in favor of appellee for $15,000. The court required a remittitur of one-half the amount, and rendered judgment for $7,500. The railroad company appealed to the appellate court, where the judgment was affirmed.

Chester M. Dawes and Lowden, Estabrook & Davis, for appellant.

Brandt & Hoffmann, for appellee.

PER CURIAM.

The judgment of the appellate court affirming the judgment of the circuit court settled all controverted questions of fact against appellant, and under our statute no assignment of error shall be allowed which calls in question the determination of the appellate court on controverted questions of fact. On the trial the defendant requested the court to give the following instruction: ‘(14) The court instructs the jury that if they believe, from the evidence, that the plaintiff, at the time he was struck, was a trespasser upon the defendant's right of way, then the jury must find the issues for the defendant.’ The court refused to give the instruction as asked, but modified it by adding the following: ‘Unless you believe,from the evidence, that the plaintiff was struck by reason of the wanton and willful negligence and carelessness of the defendant's servants.’ The ruling of the court on the instruction is claimed to be erroneous. Where the court has erred in giving or modifying an instruction, the party against whom the error was committed cannot complain of such error where he subsequently asks and obtains the giving of an instruction announcing the same principle of law, as was held by this court in Railway Co. v. Meixner, 160 Ill. 320, 43 N. E. 823. Upon looking into the record it will be found that the court gave, on request of defendant, the following instruction: ‘(9) The court instructs the jury that if you believe, from the evidence, that the accident to the plaintiff happened on the private right of way of the defendant, then you must find the defendant not guilty, unless you believe, from the evidence, that the conduct which is complained of was willful or wanton, or such gross negligence as amounts to willful or wanton conduct.’ It was claimed that plaintiff was a trespasser because he was on the private right of way of the defendant, without permission, when injured. It is therefore apparent that both instructions announce the same principle, and under the rule announced defendant cannot complain.

The defendant submitted to the court, with other instructions, No. 15, as follows: ‘The court instructs the jury, as a matter of law, that plaintiff has failed to make out a cause of action against the defendant, and your verdict should be, ‘Not guilty.” The court refused the instruction, and the ruling is relied upon as error. In Peirce v. Walters, 164 Ill. 560, 45 N. E. 1068, we held that, if a party desired to rely on a peremptory direction to find for the defendant, the instruction must be asked at the close of the evidence for plaintiff or at the close of all the evidence; that it was too late to submit an instruction of that character with a series of other instructions. Here, upon the close of the testimony, as appears from the abstract, plaintiff asked one instruction, which was given. Then the defendant asked a number of instructions, some of which were given and others refused; No. 15 being of the series. Under the rule as declared in the case cited and in subsequent cases, the court did not err in refusing the instruction.

It is next claimed that the court erred in refusing instruction No. 20, which was as follows: ‘The court instructs the jury, as a matter of law, that every person is bound to know that a railroad track is a dangerous place, and that, even if the jury believe, from the evidence, that the plaintiff was struck while standing on the track, still the burden is on the plaintiff to prove that he looked or...