Atchison v. Feehan

• Decision Date: 29 November 1893
• Citation: 149 Ill. 202,36 N.E. 1036
• Court: Illinois Supreme Court
• Parties: ATCHISON, T. & S. F. R. CO. v. FEEHAN.

149 Ill. 202

36 N.E. 1036

ATCHISON, T. & S. F. R. CO.

v.FEEHAN.¹

Supreme Court of Illinois.

Nov. 29, 1893.

Appeal from appellate court, second district.

Action on the case by Margaret E. Feehan, as administratrix, against the Atchison, Topeka & Santa Fe Railroad Company, to recover damages for the death of her husband, Edward Feehan, who was struck by a locomotive at the Wilson street crossing, in the village of Kinsman, Grundy county, Ill. Plaintiff obtained judgment, which was affirmed by the appellate court. Defendant appeals. Affirmed.

Edgar A. Bancroft and S. C. Stough, for appellant.

E. L. Clover and Geo. W. W. Blake, for appellee.

BAILEY, J.

This was an action on the case, brought by Margaret E. Feehan, administratrix of the estate of Edward Feehan, deceased, against the Atchison, Topeka & Santa Fe Railroad Company, to recover damages for the death of the plaintiff's intestate, caused, as is alleged, by the negligence of the defendant. The deceased was killed August 24, 1891, by one of the defendant's passenger trains, at a crossing of the defendant's railroad over one of the public streets of the village of Kinsman, in Grundy county. Kinsman is a small incorporated village, having about 150 inhabitants, and embracing within its corporate limits a territory 80 rods square. Feehan, at the time of his death, was living over Meagher's store, which was a little over two blocks south of the crossing of Wilson street over the railroad. He was then employed by Meagher to deliver goods and collect milk throughout the surrounding country, and for that purpose he was accustomed to drive about in a covered milk wagon. The defendant had two trains passing through the village at about 7 o'clock in the morning,-one an accommodation train, which stopped at the station; and the other a fast vestibule train, which did not stop there. On the morning in question Feehan got into his milk wagon at Meagher's store, and drove north to the Wilson street crossing, and as he was going onto the main track of the railroad he was struck by the vestibuletrain, running at the rate of from 25 to 30 miles an hour, and instantly killed. The declaration contains six counts. The first count alleges generally that the defendant, by its servants, carelessly and improperly drove and managed the locomotive engine and train, and thereby killed the plaintiff's intestate. The second count alleges a failure to give the statutory signal of the approach of the train by ringing a bell or sounding a whistle. The third count alleges the running of the locomotive engine and cars at a great and unlawful rate of speed within the limits of the village of Kinsman, in consequence of which the deceased was killed. ‘That the village of Kinsman was then and there an incorporated village, in conformity with and by virtue of the laws of the state of Illinois; and that section 1 of an ordinance of said village, entitled ‘An ordinance regulating the speed of cars and locomotives upon a railroad,’ is as follows, viz.: ‘Section 1. That no locomotive engine attached to any railroad passenger car shall be driven, propelled or run upon or along any railroad track within the village of Kinsman, at a greater rate of speed than ten miles an hour, nor shall any locomotive engine attached to any freight car be driven, propelled or run upon or along any railroad track within said village at a greater rate of speed than six miles per hour.’ And that the said injury was occasioned by reason of the negligence of the defendant running its locomotive engine and train of cars at a greater rate of speed than allowed by said ordinance of said village.' The fourth count alleges an ordinance of the village prohibiting railroad companies allowing a whistle on any locomotive engine to be sounded within the village, except necessary brake signals, and such signals as may be absolutely necessary to prevent injury to persons and property, and requiring a bell on each engine to be rung continually while running within the village, and alleging that a bell upon the locomotive engine in question was not rung within the village, as required by the ordinance, and that by reason of the negligence of the defendant in that respect, the deceased was killed. The fifth count is, in substance, a combination of the third and fourth. The sixth count alleges the erection and maintenance by the defendant upon its right of way of certain obstructions, so as to shut off the view of approaching trains; but, as there is no averment that the acts therein complained of were in any respect negligent, it is manifest that no cause of action is stated in that count. To this declaration the defendant pleaded not guilty, and at the trial the jury found the defendant guilty, and assessed the plaintiff's damages at $3,000. The defendant thereupon entered its motion for a new trial, and also its motion in arrest of judgment, which motions were severally overruled, and judgment was entered upon the verdict in favor of the plaintiff for $3,000 and costs. On appeal to the appellate court the judgment was affirmed, and the record is brought to this court by appeal from the judgment of affirmance.

The first proposition urged upon our attention is that the trial court erred in refusing to instruct the jury that under the evidence plaintiff was not entitled to recover, and that their verdict should be for the defendant. Evidence was introduced at the trial applicable to two of the charges of negligence contained in the declaration, viz.: (1) The failure of the defendant to give the statutory warning of the approach of its train to the street crossing by sounding a whistle or ringing a bell; and (2) in running its train at a rate of speed forbidden by the ordinance of the village of Kinsman. If there was evidence tending to support either of these charges of negligence, and tending to show that the deceased at the time was in the exercise of ordinary care, and that the defendant's negligence caused the injury which resulted in his death, the instruction was properly refused. As to the first of these charges of negligence, all that need be said is that, while several witnesses testified with more or less of positiveness that a bell was ringing continuously while the train was approaching the crossing, one or more witnesses, who were in a position to hear, testified that they did not hear the bell rung. This was evidence tending to show that no bell was rung, sufficient to make it the duty of the court to submit the question to the jury. Whether the verdict was in accordance with the preponderance of the evidence is a question which we are not at liberty to consider, nor is it material as bearing upon the question of the propriety of the ruling of the court in refusing to give the instruction asked.

As to the other charge of negligence, viz. that of running the train at a rate of speed prohibited by the village ordinance, the evidence is undisputed that at the time Feehan was killed the train was running at least at from 25 to 30 miles an hour. That was clearly in excess of the maximum rate of speed prescribed by the ordinance. But it is claimed that there is a failure both of allegation and proof of an ordinance regulating the speed of trains in the village in force at the time of Feehan's death. It cannot be disputed that the count in which this charge is made is defective, and it doubtless would have been so held on demurrer. In alleging the ordinance the present tense only is used, and the averment, when literally construed, is to the effect that at the date of filing the declaration-which was nearly six months after Feehan's death-there was in force an ordinance of the village of the tenor alleged. But we are of the opinion that the defect is one which is aided by verdict. The rule on this subject as stated by Mr. Chitty is as follows: ‘Where there is any defect, imperfection, or omission in any pleading, whether in substance or in form, which would have been a fatal objection on demurrer, yet, if the issue joined be such as necessarily required, on the trial, proof of the facts so defectively or imperfectly stated or omitted, and without which it is not to be presumed that either the judge would direct the jury to give or the jury would have given, the verdict, such defect, imperfection, or omission is cured by verdict.’ 1 Chit. Pl. (14th Am. Ed.) 673; Ladd v. Pigott, 114 Ill. 647, 2 N. E. 503;Barnes v. Brookman, 107 Ill. 317;Heiman v. Schroeder, 74 Ill. 158;Railway Co. v. O'Conner, 115 Ill. 254, 3 N. E. 501;Keegan v. Kinnare, 123 Ill. 280, 14 N. E. 14;Barker v. Koozier, 80 Ill. 205;City of La Salle v. Porterfield, 138 Ill. 114, 27 N. E. 937; Railroad Co. v. Simmons, 38 Ill. 242. In Railway Co. v. O'Conner, supra, the defect in the declaration seems to have been identical with the one now under consideration, and it was held to have been cured by verdict. In Railroad Co. v. Simmons, supra, which was an action on the case to recover damages for a personal injury, the declaration contained no averment that the plaintiff was in the exercise of proper care, and that omission was held to be cured. In Heiman v. Schroeder, supra, which was a proceeding for the enforcement of a mechanic's lien, the petition contained no sufficient averment that the time of furnishing the materials, the performance of the work,...