Chicago & E.I.R. Co. v. Randolph

• Decision Date: 25 October 1902
• Citation: 199 Ill. 126,65 N.E. 142
• Court: Illinois Supreme Court
• Parties: CHICAGO & E. I. R. CO. v. RANDOLPH.

199 Ill. 126

65 N.E. 142

CHICAGO & E. I. R. CO.

v.RANDOLPH.

Supreme Court of Illinois.

Oct. 25, 1902.

Appeal from appellate court, Third district.

Action by Francis F. Randolph against the Chicago & Eastern Illinois Railroad Company.From a judgment in favor of plaintiff, affirmed by the appellate court(101 Ill. App. 121), defendant appeals.Affirmed.

H. M. Steely and W. H. Lyford, for appellant.

Isaac A. Love and W. R. Jewell, Jr., for appellee.

BOGGS, J.

The judgment in the sum of $1,500, awarded the appellee against the appellant company in the circuit court of Vermilion county as damages for personal injuries sustained by the appellee through the alleged negligence of the appellant company, was affirmed by the appellate court for the Third district, and the record thereof is before this court by the further appeal of the railway company.The appellee, while endeavoring to pass over the tracks of the appellant company at a public crossing in Germantown in a buggy, was run upon by the tender of a locomotive, which servants of the appellant company were moving with a backward motion over and across the public crossing.

Counsel for the appellant company concede the evidence was such as to present to the jury as a question of fact whether the company was guilty of negligence as charged in the declaration.Counsel, however, contend it appeared in the evidence, without dispute, that the appellee, in going upon and attempting to cross the tracks of the railroad company, deliberately calculated upon the chances of driving across the tracks before the engine would reach the crossing, and voluntarily took the risk of reaching and clearing the crossing before the engine could strike him, and that for this reason the court, in passing upon the motion entered by the appellant company for a peremptory verdict in its favor, should have held as matter of law the appellee was guilty of contributory negligence, and should have directed a verdict for the company.The engine which struck the appellee had been engaged for 15 or 20 minutes in switching cars back and forth across the public crossing, and during that period of time had obstructed the crossing.The appellee was waiting to cross, and the evidence tended to show that the engine was put in rapid motion toward the south, with every appearance that the work of switching had been finished there, and that the engine was going away from the locality of the crossing to work elsewhere, and that he believed he could cross with entire safety.He therefore attempted to pass along the highway over the railway crossing.His view of the engine was obstructed by a freight car.Without any warning whatever the motion of the engine was suddenly reversed, and it was moved rapidly backward over the crossing, and thus ran upon and injured the appellee.The trial court correctly regarded it as a question of fact, under the proof, whether the appellee exercised reasonable care for his own safety in attempting to cross the tracks.The question was not, as counsel for appellant argue, whether the appellee was free from even the slightest negligence, but whether he acted with that degree of care which a reasonably prudent and cautious person would have exercised under like conditions.Railroad Co. v. Hutchinson, 120 Ill. 587, 11 N. E. 855.Slight negligence is not incompatible with due and ordinary care, and if one has proceeded with ordinary care, though slightly negligent, he has observed the degree of care required by law.Railway Co. v. Hessions, 150 Ill. 546, 37 N. E. 905;Railway Co. v. Dinsmore, 162 Ill. 658, 44 N. E. 887.

Complaint is made that the appellee, in order to enhance his damages, was permitted to prove that his wife rendered services to him as a nurse and that he agreed to pay her therefor.In this same connection we may consider the further complaint that the court erred in so framing an instruction given to the jury on the motion of the court as to warrant the inclusion of the value of the services of the wife in assessing the damages to be awarded to the appellee.The testimony having reference to the sevices of the wife in nursing the appellee was given by the appellee.It was, in substance, that he required care and nursing; that his wife and son and others, his neighbors, waited upon and nursed him; that he agreed to pay his nurses, including his wife, for their labor; that he was waited upon and nursed for 13 weeks; and that the total expense for such services was $10 per week.Counsel for appellant did not object to this testimony, ask that it be excluded or that the jury be instructed to disregard it, or in any way ask the court to rule as to its admissibility; nor...