Burling v. Ill. Cent. R.R. Co..

• Decision Date: 31 January 1877
• Citation: 85 Ill. 18,1877 WL 9468
• Parties: ALICE BURLING, Admx.v.ILLINOIS CENTRAL RAILROAD COMPANY.
• Court: Illinois Supreme Court

85 Ill. 18

1877 WL 9468 (Ill.)

ALICE BURLING, Admx.

v.ILLINOIS CENTRAL RAILROAD COMPANY.

Supreme Court of Illinois.

January Term, 1877.

OPINION TEXT STARTS HERE

WRIT OF ERROR to the Circuit Court of Marion county; the Hon. SILAS L. BRYAN, Judge, presiding.

Mr. B. B. SMITH, Mr. W. R. HUBBARD, and Mr. GEORGE O'MELVENY, for the plaintiff in error.

Mr. GEORGE W. WALL, for the defendant in error.

Mr. JUSTICE WALKER delivered the opinion of the Court:

Appellant, as administratrix of Wm. Burling, brought this action against the railroad company, for negligently running an engine and train on and killing her husband, whereby she has sustained damage.

It appeared that deceased was employed by the company as a fence builder, and that he lived at Kinmundy; that he was permitted to use one of the hand cars of the company on the railroad track, in going to and from his work, at his discretion; that on the morning of the 6th day of August, 1870, he, on the hand car, went up the road to his work, and sometime after nine o'clock of the night of that day he left Edgewood to return home, by the road, on the hand car. He was killed on the road almost nine and a half miles south of Edgewood, some time after midnight.

The evidence shows that about three o'clock of that day it commenced raining, and did not clear up until about ten o'clock at night, at about which time, we infer from the evidence, Burling left Edgewood for home. The engine-driver testifies that he neither saw him on the track nor felt any jar on the train on coming in collision with the hand car, nor did he know of the accident until informed of it the next or two days after.

It appears, from the evidence, that Burling knew the time of the trains on the road. We also think it was proved that the engine which ran upon and killed him had no headlight, nor did deceased have a light on his hand car. On these facts the jury found, under instructions given in the case, for the defendant, and the court rendered judgment on the verdict, from which plaintiff prosecutes error.

It is urged that the defendant's erroneous instructions misled the jury to find against the weight of evidence. On the other side, it is claimed that the verdict is right, notwithstanding there may be error in the instructions, and the judgment should be affirmed.

Where a verdict is shown, by the evidence, to be so clearly right that, had it been otherwise, the court should have set it aside, such verdict will not be disturbed merely for the...