Baltimore & O.S.W.R. Co. v. Mullen

• Decision Date: 24 October 1905
• Court: Illinois Supreme Court
• Parties: BALTIMORE & O. S. W. R. CO. v. MULLEN.

217 Ill. 203

75 N.E. 474

BALTIMORE & O. S. W. R. CO.

v.MULLEN.

Supreme Court of Illinois.

Oct. 24, 1905.

Appeal from Appellate Court, Third District.

Action by John Mullen against the Baltimore & Ohio Southwestern Railroad Company. From a judgment of the Appellate Division, affirming a judgment for plaintiff, defendant appeals. Affirmed.

Henry Phillips and Shutt, Graham & Graham (Edward Barton, of counsel), for appellant.

Mills & McClure, for appellee.

This is an action in case, brought in the circuit court of Cass county in March, 1902, by the appellee against the appellant company to recover damages for a personal injury. To the second amended declaration the plea of general issue was filed. The cause was tried before the court and a jury, and resulted in a verdict and judgment in favor of appellee for the sum of $1,730. An appeal was taken to the Appellate Court, which has affirmed the judgment of the circuit court; and the present appeal is prosecuted from such judgment of affirmance. The following extract from the opinion of the Appellate Court, deciding this case, sets forth the material facts, to wit:

‘This suit was before this court at a former term, and the judgment then appealed from was reversed because of errors in the instructions. 108 Ill. App. 637. Upon remandment the cause was again tried, resulting in a judgment for the plaintiff for $1,730. The second trial was had upon the second and third counts of the declaration only, which charge, in substance, that the defendant had negligent and incompetent servants in charge of its train from St. Louis to Flora, Ill.; that said servants opened the vestibule doors of the coach in which plaintiff was riding, and called the station of Flora; that plaintiff then went out on the vestibule platform; that the conductor and brakeman were there, and one of them informed him the depot was ‘right there,’ indicating a point directly opposite where the train then was, and thus induced in his mind the belief that the train had stopped at the station; that it was in the nighttime, and so dark plaintiff could not distinguish any object, and by means of the false information thus given him by the conductor or brakeman he was induced to believe, and did believe, that the train had stopped; that he attempted to alight from said train, but that it was not at the place indicated, and had not stopped as plaintiff had been erroneously led to believe, and in attempting to alight he was drawn under the wheels and injured. On the morning of the accident, which occurred at about 4:35 o'clock, the appellee, a farmer, about 68 years of age, was a passenger upon one of appellant's trains for the purpose of being carried from East St. Louis to Flora, Ill., where he intended changing cars to another branch of appellant's road. He testifies that, when the conductor took up his ticket, he informed the conducter that he had had but little sleep for two nights, and asked to be waked at Flora; that as the train neared Flora the brakeman came into the car and called the name of the station, whereupon appellee aworke, arose, put on his overcoat, took his lunch basket on his arm, and went to the rear platform of the coach; that the conductor and brakeman were standing on the platform of the adjoining coach; that the vestibule doors were open; that he asked them where the depot was, and that one of them replied, ‘Right there,’ and pointed to the place where he afterwards got off; that said answer, and the fact that he did not feel the motion of the train, led him to believe that the train had stopped; that it was so dark he was unable to see whether or not it had; that he then stepped off, holding onto the railing as he did so, and was thrown under the wheels of the car. After appellee's wounds were dressed the agent of appellant procured from him a written statement as to how the accident occurred, which was introduced in evidence by appellant, and tends to corroborate appellee's testimony. The evidence also shows that, when the train approached Flora from the west, if first stopped at a point about 200 feet west of the crossing of the track of the main line of the road with that of what was called the ‘Springfield Division’; running north and south, and then proceeded to the depot, which was located east of the crossing, in the angle formed by the main and Springfield tracks, at the rate of not to exceed five miles an hour. After the accident appellee was found lying near the main track about 40 feet west of the crossing. His hand was injured to such an extent that amputation was necessary. The conductor and brakeman both deny that they were at the place where appellee testifies they were when the accident occurred, or that either of them made any statement to him as to the location of the depot, or that they saw him get off. The brakeman admits that he awoke appellee before the train stopped for the crossing, and told him that the train was approaching Flora, and that appellee then got up, stepped into the aisle, and put on his overcoat, but denies that he saw him on the train thereafter, or that he called the station until after making the stop at the crossing. The evidence tends to show that there were a number of electric and other lights burning at and within the depot and other buildings in the vicinity of where the accident occurred, and that there were gas lights burning in the vestibule, through which appellee left the car.'

Henry Phillips and Shutt, Graham & Graham (Edward Barton, of counsel), for appellant.

Mills & McClure, for appellee.

MAGRUDER, J. (after stating the facts).

Upon the trial below, at the close of the plaintiff's testimony, the defendant asked the court to give the jury a written instruction to find the defendant not guilty, which was refused, and exception was taken. At the close of all the testimony defendant's counsel again asked of the court a written instruction to the jury to find the defendant not guilty, which was also refused, and exception taken. The refusal of the court to instruct the jury to find for the defendant raises the question whether there is any evidence tending to sustain the cause of action set up in the declaration.

It is insisted by the appellant that the appellee was guilty of contributory negligence in attempting to alight from the train while it was in motion. This court has held in some cases that it is negligence for a passenger to get off a train of which the motive power is steam while the cars are in motion. Cicero & Proviso Street Railway Co. v. Meixner, 160 Ill. 320, 43 N. E. 823,31 L. R. A. 331. It will generally be found, however, upon an examination of such cases, that the passenger, thus alighting from a steam car when in motion, was aware at the time that it was in motion. In other cases it has been held that the question whether or not the alighting from a steam car which is in motion constitutes of itself contributory negligence is a question of fact, to be determined by the jury, even where the passenger knowingly and intentionally alights from such moving train. Thus, in Chicago & Alton Railroad Co. v. Byrum, 153 Ill. 131, 137,38 N. E. 580, this court said: ‘Whether or not appellee was guilty of such contributory negligence in alighting from a moving train as would bar a recovery was a question of fact, to be determined by the jury under all the attendant and surrounding circumstances. * * * It was the duty of appellant to stop its train a reasonable length of time at Elkhart to allow appellee, in the exercise of ordinary care and diligence, to alight therefrom with safety, and if appellant failed in this duty, and by reason thereof appellee was injured while in the exercise of ordinary care and caution, appellant would be liable.’ In Chicago & Eastern Illinois Railroad Co. v. Storment, 190 Ill. 42, 46, 60 N. E. 104, 105, it was said: ‘The main contention of the defendant was that the plaintiff was not entitled to recover at all, because the train was in motion when she alighted from the same. This view of the law was erroneous, and the instructions, so far as they announced such erroneous view, were properly modified by the court before being given to the jury.’ In Chicago & Alton Railroad Co. v. Gore, 202 Ill. 188, 192, 66 N. E. 1063, 1064,95 Am. St. Rep. 224, it was said: ‘It is so far within the scope of the authority of a conductor of a railway train to advise and direct passengers in the matter of boarding the train that an attempt to step on a moving train in compliance with such advise or direction cannot be declared as matter of law to be negligence that will bar recovery, unless the danger is so open and obvious that only a reckless man would encounter it. * * * Whether or not the appellee, in attempting to get upon the car while the same was in motion on the occasion in question, was guilty of such contributory negligence as would bar a recovery, was a question of fact, to be determined by the jury in view of all the attendant and surrounding circumstances.’ The considerations which apply to getting on a moving train are also applicable to the matter of getting off a train which is in motion.

Without attempting to distinguish between cases, which seem to hold that it is negligence as matter of law to attempt to alight from the car of a train propelled by steam while it is in motion, and those which hold that the question, whether such attempt constitutes contributory negligence or not is a question of fact for the jury, it is sufficient, for the purposes of the case at bar, to say that, where a passenger alights from a train at a particular point upon the invitation of the conductor, or brakeman, or other employé on board the train, or where such passenger alights from the train under the belief that it is not in motion, and the circumstances show that there is reasonable ground for such belief, then these facts may be taken into consideration by the jury in determining whether the...