Armour v. Pennsylvania R. Co.

• Decision Date: 21 October 1933
• Docket Number: No. 21570.,21570.
• Citation: 187 N.E. 532,353 Ill. 575
• Parties: ARMOUR v. PENNSYLVANIA R. CO.
• Court: Illinois Supreme Court

353 Ill. 575

187 N.E. 532

ARMOUR

v.PENNSYLVANIA R. CO.

No. 21570.

Supreme Court of Illinois.

Oct. 21, 1933.

Error to Third Branch Appellate Court, First District, on Appeal from Superior Court, Cook County; Walter T. Stanton, Judge.

Action by Emily Armour against the Pennsylvania Railroad Company. Judgment in favor of plaintiff was affirmed by the Appellate Court, and defendant brings certiorari.

Judgment reversed, and cause remanded to Appellate Court, with directions.

ORR, C. J., dissenting.

Loesch, Scofield, Loesch & Burke, of Chicago, for plaintiff in error.

Joseph D. Ryan and Louis P. Miller, both of Chicago, for defendant in error.

DE YOUNG, Justice.

Emily Armour brought an action of trespass on the case in the superior court of Cook county against the Pennsylvania Railroad Company, a corporation, to recover damages for personal injuries. The jury found the defendant guilty and assessed the plaintiff's damages at the sum of $60,000. Motions for a new trial and in arrest of judgment were made and denied and judgment was rendered on the verdict. The defendant prosecuted an appeal to the Appellate Court for the First District, and that court affirmed the judgment. Upon the railroad company's petition, this court granted a writ of certiorari, and, as a return to that writ, the record is submitted for a further review.

Roy W. Armour, accompanied by Emily Armour, his wife, on the evening of November 26, 1927, about 8:30 o'clock drove an automobile east on Seventy-Ninth street at Western avenue in the city of Chicago. About two blocks east of the latter street two tracks of the Baltimore & Ohio Chicago Terminal Railroad Company and farther east two tracks of the Pennsylvania Railroad Company cross Seventy-Ninth street. The space between the tracks of the two railroad companies is approximately eighty-four feet. Between Western avenue and the Pennsylvania railroad tracks and immediately south of Seventy-Ninth street are two shanties each about six and one-half or seven feet square, one west of the Baltimore & Ohio Chicago Terminal railroad tracks and the other between and equidistant from the two sets of railroad tracks. The first shanty is used as a telegraph office, and the second affords shelter to the street or crossing flagman employed by the two railroad companies. Seventy-Ninth street is a main thoroughfare, and street cars are operated upon it. For nearly two thousand feet to the south of Seventy-Ninth street neither tree nor building, save the two shanties, obstructs the view from Western avenue to the Pennsylvania railroad tracks.

The testimony of the defendant in error and her husband is that he stopped the automobile in which they were riding before they crossed the Baltimore & Ohio Chicago Terminal railroad tracks; that as they proceeded the crossing flagman stood near his shanty and his red lantern was on the ground; that just before reaching the Pennsylvania railroad tracks the defendant in error discovered a freight train approaching from the south; that she warned her husband and he immediately turned the automobile to the left and applied the brakes; that the right side of the automobile was damaged, and that she, in consequence, was injured. They further testified that the freight train was running at a speed or thirty-five or forty miles an hour, and that they had often driven over the same crossing.

Plaintiff in error called as witnesses the crossing flagman, the members of the crew which operated the freight train, and an engineer, a conductor, and two police officers employed by the Baltimore & Ohio Chicago Terminal Railroad Company. Of these witnesses, nine in number, several testified that the automobile was driven across the first two tracks at a speed of thirty miles an hour; that the flagman stood in the street swinging his red lantern to give warning of an approaching train; that the driver, not only disregarded the signal, but compelled the flagman to jump aside to avoid injury, and that the automobile continued at undiminished speed until it ran into the side of the locomotive of the moving freight train. Nearly all of the defendant's witnesses testified that, as the freight train approached Seventy-Ninth street, the whistle of the locomotive was sounded; that the headlight was burning and the bell ringing, and that the train was running at a speed of twenty-five or thirty miles an hour.

The return of the verdict was followed by the defendant's written motion setting forth sixteen grounds upon which a new trial was asked. The motion was denied, and the defendant took an exception to the court's ruling. The motion, the court's order thereon, and the defendant's exception thereto were incorporated in the bill of exceptions. Sixteen errors, identical with the grounds stated in the motion for a new trial, were assigned upon the record in the Appellate Court. Of these specifications, the first and second were that the verdict was against the evidence, and against the weight of the evidence, and the ninth and tenth that the trial court erred, at the close of all the evidence, in overruling the defendant's motion to instruct, and in refusing to instruct, the jury to find the defendant not guilty. No error, however, was assigned upon the denial of the motion for a new trial.

The Appellate Court did not consider the first, second, ninth, and tenth errors assigned. Accordingly, the plaintiff in error makes two contentions for the reversal of that court's judgment: First, that the assignment of errors having specified all the grounds set forth in the motion for a new trial, the Appellate Court erred in deciding that the defendant's failure to assign, as error, the trial court's denial of the motion for a new trial, precluded the reviewing court from considering the evidence to determine whether the verdict was against the weight of the evidence; and, second, that the Appellate Court failed to decide whether, as a matter of law, the defendant in error was guilty of contributory negligence, and whether, immediately prior to and at the time of the accident, she exercised due care and caution for her own safety.

Section 83 of the Practice Act provides that: ‘Exceptions taken to decisions of the court overruling motions in arrest of judgment, motions for new trials, motions to amend and for continuances of causes, shall be allowed, and the party excepting may assign for error any decision so excepted to.’ (Smith-Hurd Rev. St. 1931, c. 110, § 83, p. 2208; Cahill's Rev. Stat. 1931, c. 110, par. 83, p. 2183). It often has been said that, if it is desired to save for review the question of the sufficiency of the evidence to sustain the jury's verdict, the defeated party must make a motion for a new trial, and upon the denial of the motion, except to the ruling, and thereafter include in the bill...