Blanchard v. Lake Shore & M.S. Ry. Co.

• Decision Date: 15 November 1888
• Citation: 18 N.E. 799,126 Ill. 416
• Court: Illinois Supreme Court
• Parties: BLANCHARD v. LAKE SHORE & M. S. RY. CO.

126 Ill. 416

18 N.E. 799

BLANCHARD

v.LAKE SHORE & M. S. RY. CO.

Supreme Court of Illinois.

November 15, 1888.

Appeal from appellate court, First district.

Action by Rollin P. Blanchard, administrator of John W. Riordan, deceased, against the Lake Shore & Michigan Southern Railway Company for damages for the death of plaintiff's intestate, which occurred December 15, 1882. The action was begun August 22, 1883, and an additional count was filed April 20, 1887. Plaintiff appeals.Thomas Dent

and William P. Black, for appellant.

Pliny B. Smith, for appellee.

MAGRUDER, J.

This is an action on the case, brought under the act of February 12, 1853, ‘requiring compensation for causing death by wrongful act, neglect, or default,’ to recover damages for the death of John W. Riordan, alleged to have been caused by the carelessness and improper conduct of the appellee company. The suit was begun in the superior court of Cook county in August, 1883, and after the first trial, which resulted in a verdict for the plaintiff, was appealed to the appellate court by the railroad company, and reversed and remanded. After it was so reversed and remanded, the plaintiff filed an additional count on April 20, 1887, alleging that the defendant ran the engine which caused the death of the deceased at a greater rate of speed than was permissible under the ordinance of the city of Chicago, forbidding passenger trains to run faster than 10 miles an hour and freight trains to run faster than 6 miles an hour within the city limits, and that, when the accident occurred, the defendant was running its engine at the rate of 14 miles an hour, and had no watch or lookout upon the engine, so as to provide for the safety of persons who might be upon the track, etc. The declaration, as originally filed, contained four counts. The first and second charged generally the careless and impropermanagement of the engine; the third alleged the failure to ring a bell or blow a whistle, as required by the statute, when within 80 rods of a street crossing; the fourth charged that the engine was running at the rate of 14 miles an hour, in violation of the ordinance aforesaid. This fourth count is substantially the same as the additional court filed after reversal, except that the latter alleges a failure to keep and maintain a watch or lookout upon the engine, and charges the defendant with a ‘wanton and reckless disregard of its duty,’ and with ‘negligent, unlawful, and wanton misconduct.’ The defendant below pleaded the general issue to all the counts, and also a plea of the statute of limitations of two years to the additional count. The trial court overruled plaintiff's demurrer to the latter plea, and held the plea to be good, to which ruling plaintiff excepted. Judgment was entered for the defendant upon the plea of the statute of limitations, to which also plaintiff excepted. Upon the second trial before a jury, after the plaintiff had introduced his evidence, the defendant orally demurred thereto, and moved for an instruction to the jury to find for the defendant. The court thereupon instructed the jury, in writing, as follows: ‘The jury are instructed that, under the evidence in this case, their verdict must be for the defendant.’ The plaintiff excepted to this instruction, and to the withdrawal of the case from the jury. Verdict was rendered for defendant, judgment entered upon the verdict, and exception taken by the plaintiff. The judgment of the trial court has been affirmed by the appellate court, and the case is brought before us by appeal from the latter court.

Where the jury are instructed to find for the defendant, or, what is the same thing, where a demurrer to the evidence is sustained, such action of the court is the same as holding that the evidence is insufficient in law to sustain the action, even if all that it tends to prove is admitted to be true. Doane v. Lockwood, 115 Ill. 492, 4 N. E. Rep. 500. In order, therefore, to determine whether the court in this case properly instructed the jury to find the issues for the defendant, it becomes necessary to look into the evidence. The deceased was killed on December 15, 1882. He was 16 or 17 years old, and on the day of his death, and for about three months prior thereto was at work in the freight-house of the Chicago & Northwestern Railway Company. This freight-house was located in the west division of the city of Chicago, between Meagher street on the north and Sixteenth street on the south, and between Jefferson street on the east and Union street on the west. Its eastern end fronted on Jefferson street, and it extended westward for about 400 feet towards Union street, it western end being about 125 or 150 feet east of Union street. South of it, and extending from Jefferson street to Union street, was the freight-house of the Chicago, Burlington & Quincy Railroad Company. The next street west of Union was Halsted street. Between Union and Halsted streets was the round-house of the Chicago, Burlington & Quincy Railroad Company, standing to one side, and out of the way of the railroad tracks. Newberry avenue is the street next west of Halsted street, and Johnson street is the next street still further to the west. South of Sixteenth street, and parallel to it, is Seventeenth street, which runs east and west. The deceased lived on Seventeenth street, between Newberry avenue and Johnson street, and nearer to the latter than the former. The two blocks between Jefferson and Halsted streets on the east and west, and Meagher and Sixteenth streets on the north and south, are covered with railroad tracks, there being some 25 or 30 of such tracks. They run from east to west. They cross Jefferson and Union streets. Some of them run between the freight-houses of the two roads. The northern tracks, towards Meagher street, are owned by the Chicago & Northwestern Railroad Company, and the southern tracks, towards Sixteenth street, by the Chicago, Burlington & Quincy Railroad Company. One or two tracks run into the western end of the Northwestern freight-house, and one or more tracks north of it, and one or more south and along-side of it. At Halsted street there is a bridge or viaduct, which is a part of the street. The railroad tracks, and the engines and cars on them, run under this bridge, and the public travel passes on it, above the tracks and trains. At 12 o'clock on December 15th the deceased came out of the western end of the Northwestern freight-house, to go home to his dinner. He went westward, across Union street, upon the Northwestern tracks, to a point between Union and Halsted streets, then turned south to the Chicago, Burlington & Quincy tracks, and was walking along the northern track of the Chicago, Burlington & Quincy road, or diagonally across it, when he was struck and killed by an engine of the appellee, backing ‘tender first’ on the Chicago, Burlington & Quincy track towards the west. The accident occurred at a point about two feet east of the viaduct. The deceased was not struck at a street crossing, but while upon the railroad track between Union street and the Halsted-street viaduct. At Halsted street foot passengers did not cross the tracks as at Union and Jefferson streets, but passed above them, upon the bridge. The proof shows that in this network of tracks, cars and engines are constantly passing and repassing. The tracks do not run along either Meagher or Sixteenth street, but...