Bernier v. Illinois Cent. R. Co.

• Decision Date: 15 February 1921
• Docket Number: No. 13296.,13296.
• Parties: BERNIER v. ILLINOIS CENT. R. CO.
• Court: Illinois Supreme Court

296 Ill. 464

129 N.E. 747

BERNIER

v.ILLINOIS CENT. R. CO.

No. 13296.

Supreme Court of Illinois.

Feb. 15, 1921.

Error to Appellate Court, Second District, on Appeal from Circuit Court, Kankakee County; A. W. De Selm, Judge.

Action by Wilbert Bernier, administrator, against the Illinois Central Railroad Company. There was a judgment in favor of plaintiff, which was affirmed by the Appellate Court (215 Ill. App. 454), and defendant brings certiorari.

Affirmed.

See, also, 213 Ill. App. 530.W. R. Hunter, of Kankakee, for plaintiff in error.

E. A. Marcotte and J. Bert Miller, both of Kankakee, for defendant in error.

THOMPSON, J.

This was an action on the case brought by defendant in error in the circuit court of Kankakee county to recover damages against plaintiff in error for the death of Bernice Bernier, a 16 year old girl. The accident causing her death occurred about 8 o'clock in the evening of October 4, 1917, on the right of way of the Illinois Central Railroad Company in front of its passenger station in the city of Kankakee. The declaration consisted of two original and three additional counts. The first original count charged that plaintiff in error willfully and wantonly ran its train against deceased and killed her. Other counts set up facts in relation to a certain cinder pathway across the tracks of plaintiff in error and its use by the public and charged negligent operation of the train, across this pathway and also set out an ordinance of the city limiting speed of passenger trains to 10 miles an hour, and the violation of said ordinance by plaintiff in error, and the death of deceased as a result thereof. Plaintiff in error pleaded the general issue. The jury found it guilty and assessed damages at $5,000. The judgment entered on this verdict was affirmed on appeal to the Appellate Court, and the case was brought to this court by certiorari to review that judgment.

The judgment was affirmed at a former term of this court, a rehearing was granted, and the case is here for further consideration of points alleged to have been overlooked and misapprehended by the court.

The tracks of the Illinois Central Railroad Company run through the city of Kankakee in a northerly and southerlydirection, dividing the city into two parts. About 3,500 people, or one-fifth of the population, live on the west side of the right of way. At the point where its passenger station stands, the right of way occupies the full block between East avenue on its east side and West avenue on its west side. The station is on the east side of the right of way. Merchant Street East runs east from the passenger station at right angles to East avenue, and Merchant Street West runs west from West avenue at a point opposite the station. Merchant street has never been laid out from East avenue to West avenue. One block north of Merchant street, Court street passes over the railroad on a stone viaduct; and one block south of Merchant street, Station street crosses the railroad at grade. There are six tracks on the right of way in front of the passenger station. The east track, or the one nearest the passenger station, is the north-bound main, and the track immediately west is the south-bound main. The four tracks west of these mains are switch tracks, used principally for freight yards. Between the passenger station and the north-bound main is a wide platform. The space from the station platform to the east rail of the south-bound main is planked. These platforms are for the accommodation of passengers going in either direction.

For many years people traveling on foot between the parts of the city east and west of the railroad, and to whom Merchant street, if extended across the railroad, would be most convenient, and people in the west part of the city wishing to go to and from the passenger station, have been in the habit of going across this right of way over all six tracks when the tracks were not blocked by trains or standing cars. For more than 10 years before this accident a cinder path has existed across the right of way from the west side of the platform to the east side of West avenue, practically on the line of what would be the north side of Merchant street, if that street had crossed the right of way. The employees of the railroad company placed this cinder path there for their own convenience in conveying ashes from the depot to the west side of the right of way. For several years a large signboard was maintained on the west side of the right of way immediately to the north of Merchant street extended, warning people of the danger and forbidding them to trespass upon the railroad grounds.

Deceased, with her parents, lived at Clifton, a village south of Kankakee. They came to Kankakee that afternoon and visited a relative at a hospital which was located in the west part of the city. When they left the hospital, they approached the depot from the west. Mr. Bernier turned off Merchant street on an errand, while the deceased and her mother proceeded east on the north side of Merchant Street West on their way to the depot to purchase tickets for Clifton. They planned to get their tickets at that time, and then go to a moving picture show with Bernier, spending the time there until about 10 o'clock, when their train left. Mrs. Bernier and her daughter started across the tracks toward the passenger station on the cinder path. A long freight train, consisting of more than 50 box cars, was then going north on the north-bound main. They crossed the four switch tracks and the south-bound main, and were standing close to the east rail of that track waiting for the freight train to pass. The limited passenger train from Chicago to New Orleans was due in Kankakee at 8:05 p. m., and was then approaching the station from the north on the south-bound main. Mrs. Bernier said she looked in both directions for moving trains, but saw none, and that she heard no bell or whistle. The freight train was making a very loud, grinding noise, and the smoke of its engine and the curve of the track beyond the viaduct would all tend to prevent the women from seeing or hearing the oncoming passenger train.

An eyewitness testified that the passenger train passed under the viaduct, a block north of the women, at a speed of between 20 and 30 miles an hour. The engineer testified that he entered the north city limits going about 45 miles an hour; that he gradually slowed down, so that he was not going more than 15 miles an hour when he went under the viaduct; and that when he struck the women he was not going more than 10 miles an hour. According to his testimony, the headlight was burning and the bell was automatically ringing. He said that as he went under the viaduct he saw the women approaching the south-bound main from the west, and saw them pass over the east rail of this track. The space between the north-bound and south-bound mains was about 10 feet, giving a clearance of more than 6 feet between the passing trains. He testified that he assumed the women knew of his train, and that they expected to step into the zone of safety between the passing trains. He gave them no warning at this time. He raised his eyes from the women, and looked at his signal board for his orders, and saw that he had a clear board. When he was about 75 feet north of the women he glanced down again, and saw that they were standing too near the east rail for him to clear them. He sounded the alarm whistle and applied the brakes. The women did not move until the engine struck them. Mrs. Bernier was knocked about 30 feet ahead, and deceased about 50 feet; both of them being thrown on the platform between the two mains. The train came to a stop a short distance from the place where the women were struck. After the freight train has passed, depot employees who had been attracted by the alarm whistles picked up the two women. Mrs. Bernier was unconscious and Miss Bernier was dead.

Plaintiff in error asked, and the court gave to the jury, instruction No. 17, as follows:

‘You are instructed by the court that at the time deceased was struck by the locomotive she was upon the property of the defendant and was nothing more than a licensee thereon; that is to say, she was on said tracks at her peril, and the only duty defendant owed to deceased was that, upon discovering she was in danger, the law would require defendant to use every reasonable effort to keep from injuring the deceased.’

By giving this instruction the trial court practically limited a recovery to that count charging a willful and wanton injury. If the jury followed this instruction, we must presume that they found defendant guilty of a willful and wanton injury. It was for the jury to decide at what rate of speed the train approached the station, and whether or not the engineer exercised that degree of care which he was bound to exercise when he saw the women in a place of danger, or whether he wantonly drove his train against them. These are questions of fact, which we are not authorized to determine. The judgment of the Appellate Court has concluded those questions. The issues were properly left to the jury, and two juries have found against plaintiff in error. Lake Shore & Michigan Southern Railway Co. v. Parker, 131 Ill. 557, 23 N. E. 237;Sullivan...