Chicago City Ry. Co. v. Smith

• Decision Date: 04 April 1907
• Citation: 226 Ill. 178,80 N.E. 716
• Court: Illinois Supreme Court
• Parties: CHICAGO CITY RY. CO. v. SMITH. CHICAGO & GRAND TRUNK RY. CO. v. SAME.

226 Ill. 178

80 N.E. 716

CHICAGO CITY RY. CO.

v.SMITH.

CHICAGO & GRAND TRUNK RY. CO.

v.SAME.

Supreme Court of Illinois.

Feb. 21, 1907.

Rehearing Denied April 4, 1907.

Appeal from Appellate Court, First District.

Action by Isaiah C. Smith against the Chicago City Railway Company and another. From a judgment of the Appellate Court for the First District (124 Ill. App. 627) affirming a judgment for plaintiff, defendants appeal. Affirmed.William J. Hynes and Watson J. Ferry (Mason B. Starring, of counsel), for appellant Chicago City Ry. Co.

G. W. Kretzinger, for appellant Chicago & Grand Trunk Ry. Co.

Theodore G. Case, Munson T. Case, and Seth F. Crews, for appellee.

This is an action on the case brought by Isaiah C. Smith against the Chicago & Grand Trunk Railway Company (hereinafter called the railway company) and the Chicago City Railway Company (hereinafter called the street railway company) to recover damages for personal injuries received on July 17, 1893, which resulted from a collision between a passenger train on the railway company's tracks and a street car on which Smith was a passenger, at a point on Halsted street near its intersection with Forty-Ninth street, in the city of Chicago. The case was first tried in 1896, and a judgment was rendered against both the appellants. Upon appeal the Appellate Court dismissed the appeal for irregularities in the record. Chicago City Railway Co. v. Smith, 82 Ill. App. 305. The case was then taken to the Appellate Court on a writ of error, and the judgment was reversed and the cause remanded. Chicago City Railway Co. v. Smith, 92 Ill. App. 153. Upon the second trial in the court below a verdict of $35,000 was rendered, upon which the court, after requiring a remittitur of $20,000, rendered judgment. This judgment has been affirmed by the Appellate Court for the First District (124 Ill. App. 627), and both of appellant companies have prosecuted a further appeal to this court.

Forty-Ninth street runs east and west, and is crossed by Halsted street, which runs north and south. There are four railroad tracks in or near Forty-Ninth street at the point where it intersects Halsted street. Two of these tracks are on the north side of the center line of Forty-Ninth street and were being used by the Chicago Junction Railway Company. These two tracks were about 7 feet apart. On the south side of Forty-Ninth street are two other tracks which were being used by the railway company, appellant herein. These two tracks were also about 7 feet from each other, and were from 16 to 30 feet south of the Chicago Junction Railway Company's tracks. The north track of the railway company was used for its west-bound trains, and the south one for its east-bound trains. West of Halsted street these tracks ran straight for a considerable distance. A station house was located west of Halsted street and south of all of the tracks, and a gate tower was located in the space between these two sets of tracks, west of Halsted street. North and south of these four tracks were gates, which were operated from the switch tower, and when lowered stopped the travel over the crossing along Halsted street. The gates were under the control and management of a servant of the railway company, whose duty it was to lower the gates so as to exclude travel over the crossing when a train was approaching from east or west, and to keep them closed until the train had cleared the crossing. The switch tower was about 18 or 20 feet high, thus affording the towerman a commanding and unobstructed view of the railroad tracks. The only indication of the approach of trains provided by the railway company was by closing the gates. The street railway company operated a horse car line in Halsted street. Appellee became a passenger on a south-bound horse car about a mile north of the scene of the accident. Upon reaching the north gate at Forty-Ninth street, the gate being down, the car stopped. At that time there was a freight train standing upon the north track of the railway company, the caboose of which was several feet west of the west sidewalk of Halsted street, thus leaving the street clear, but cutting off the view to the southwest. There were no other obstructions to prevent a person at the north gate from looking along the railway track for more than a mile. The conductor of the street railway car went ahead of the horses and passed the gate, and when it was raised he told the driver to ‘come on.’ The conductor walked a few feet ahead of the horses until he reached the south or last track of the railway company, when he discovered a passenger train coming rapidly from the west along the south track. He called to the driver to stop, but the driver applied the whip to his horses and attempted to cross the south track ahead of the passenger train, but failed to clear the south track, and the car in which appellee was a passenger was struck by the engine of the passenger train, and appellee was severely injured.

The declaration contained three counts, and charged separate acts of negligence against each of the appellants, and averred that appellee's injury resulted from the joint operation of the alleged negligent acts. The negligence charged against the street railway company was a failure to so run, manage, and operate the car upon which appellee was a passenger as to safely carry appellee to his destination without harm or injury, and a failure to take proper precautions at the intersection at the crossing of the railway track to discover whether there was danger from a collision with passing trains upon the railway company's tracks. The negligence charged against the railway company is that of negligently and carelessly running its train at an unreasonable and unsafe rate of speed, and failing to close the gates or give other warning of the near approach of the train at the intersection of the street car lines. Each of appellants filed a plea of not guilty.

VICKERS, J. (after stating the facts).

It is contended that the court erred in giving instructions numbered 3 and 4. These instructions are as follows:

‘(3) The court instructs the jury that, so far as consistent with the practical operation of its road, it is the duty of a railroad company to exercise the highest degree of care and caution for the safety and security of passengers while being transported.

‘(4) Common carriers of persons are required to do all that human care, vigilance, and foresight can reasonably do, consistent with the character and mode of conveyance adopted and the practical prosecution of the business, to prevent accidents to passengers riding upon their trains.’

Instruction No. 3 is objected to by both appellants because it omits to qualify ‘consistent’ with the word ‘reasonably,’ in the first line, and an argument is submitted which attempts to show that the words ‘consistent with the practical operation of the road’ mean something more or less than the words ‘reasonably consistent with the practical operation of the road.’ This objection is without force. The instruction has been approved by this court as a correct proposition of law in West Chicago Street Railroad Co. v. Kromshinsky, 185 Ill. 92, 56 N. E. 1110, and the rule embodied in it has frequently received the sanction of this court. Illinois Central Railroad Co. v. O'Connell, 160 Ill. 636, 43 N. E. 704;West Chicago Street Railroad Co. v. Johnson, 180 Ill. 285, 54 N. E. 334;Chicago, Burlington & Quincy Railroad Co. v. Mehlsack, 131 Ill. 61, 22 N. E. 812,19 Am. St. Rep. 17;Chicago & Alton Railroad Co. v. Byrum, 153 Ill. 131, 38 N. E. 578. While, as a general rule, the approval of an instruction in any given case means no more than that the instruction is not open to the objection there urged against it, where an instruction like the one now being considered announces an abstract proposition of law, and the only objection that can be raised to it is that it is not a correct statement of the law, if the approval of such instruction by this court does not settle the law as contained in the instruction, then there can be no such thing as settling a legal proposition when the same is presented to this court in an instruction. When a clear abstract proposition of law is presented to this court and is approved as a correct statement of the law, it must be assumed that the court has spoken advisedly, and that all objections to the rule as announced have been considered. The instruction now under consideration defines the rule of law as to the degree of care a carrier owes to its passengers. As already shown, the rule has...