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

• Decision Date: 19 June 1901
• Citation: 190 Ill. 478,60 N.E. 818
• Court: Illinois Supreme Court
• Parties: CHICAGO & E. I. R. CO. v. JENNINGS.

190 Ill. 478

60 N.E. 818

CHICAGO & E. I. R. CO.

v.JENNINGS.

Supreme Court of Illinois.

June 19, 1901.

Appeal from appellate court, First district.

Action by George F. Jennings, administrator, against the Chicago & Eastern Illinois Railroad Company. From judgment of the appellate court (89 Ill. App. 335) affirming a judgment for plaintiff, defendant appeals. Reversed.

Magruder, J., dissenting.S. A. Lynde (W. H. Lyford, of counsel), for appellant.

Edward J. Dahms and Wing & Chadbourne, for appellee.

CARWRIGHT, J.

Appellee brought this suit as administrator of the estate of George M. Jennings, who was killed by one of appellant's trains while crossing its tracks at Seventy-Sixth street, in the city of Chicago, to recover damages from appellant for his death. The declaration contains five counts, in each of which it is averred that the defendant received said George M. Jennings upon its premises as a passenger at or upon the intersection and crossing of its railroad and Seventy-Sixth street, and near to its Seventy-Sixth street depot, to be safely carried from thence to its Dearborn street station, in the city of Chicago, upon a train about to arrive at and stop and wait at said Seventy-Sixth street station or depot to receive said George M. Jennings and other passengers, to convey and carry them to their several destinations. Each of said counts also alleges, in substance, that it thereupon became the duty of defendant to have permitted the said George M. Jennings to safely cross over its railroad tracks while going to said depot, and to have allowed and permitted him to safely take and mount said train of cars which was about to arrive and stop at said station, and to have carefully conveyed and carried him to his said destination, but that while he was, with all due care and diligence, walking upon and across said Seventy-Sixth street at said crossing of the same and defendant's railroad, to reach and mount defendant's train, the defendant, by its servants, disregarding said duty, ran another train in a southerly direction upon and over the said crossing, and struck the said George M. Jennings, and killed him. While the counts are substantially alike in making the foregoing allegations, they differ in respect to the character of the negligencecharged as a breach of said duty. In the first there is a general charge that the train which struck Jennings was carelessly, negligently, and improperly driven, managed, and run. The second count charges that said train was carelessly and negligently driven and run at an unlawful rate of speed, in violation of an ordinance of the city of Chicago, set out in that count. The third alleges that the defendant ran the train without maintaining a flagman upon the street crossing to warn said George M. Jennings of trains. The fourth charged defendant with not ringing the bell or blowing a whistle on the engine 80 rods from the crossing, and until the crossing was reached, as was required by the statute. The fifth alleges that defendant failed to ring a bell in its tower or tower house near the crossing, to warn said George M. Jennings of the approach of the train. Each count was based upon the existence of the contract relation of passenger and carrier, and alleged duties arising out of that relation, and charged as breaches of that duty the several acts above stated. There was no count alleging any relation or duty except as carrier and passenger, nor any negligent act except as a breach of such duty, and there was no count of which the averment of that relation was not a necessary element. The defendant pleaded the general issue, and there was a trial, resulting in a verdict for $4,800, and a judgment thereon, which has been affirmed by the appellate court.

The following facts were proved by the plaintiff, and not disputed by the defendant, but are conceded: The defendant owns and operates a railroad in the city of Chicago, with a station at the corner of Polk and Dearborn streets. It also has a station at Seventy-Sixth street. That street runs east and west, and the tracks run north and south, crossing it at right angles. At that place there are four tracks, and the depot is on the east side of them, and north of the street. The two easterly tracks nearest the depot are used for passenger trains. The first track to the east is No. 1, and the trains running on that track are north-bound passenger trains. The second track from the east is No. 2, on which south-bound passenger trains run. The two tracks to the west of these are for north and south bound freight trains. There is a sidewalk running east and west on the north side of Seventy-Sixth street, and east of all the tracks there is a wooden platform running north from the sidewalk, about 100 feet. At the north end the platform is 10 feet wide, and at the south end it runs over to the depot, and is probably 18 feet wide. Between the passenger tracks Nos. 1 and 2 there is another platform, 8 feet wide, running north from the sidewalk 100 feet. These platforms are level and even with the top of the rails, and are for the use of passengers. The street crossing is planked in the usual manner entirely across the tracks. In 1894 there was a train which went north from this station at 7:37 in the morning, and George M. Jennings was in the habit of taking that train, and other passengers were in the habit of taking trains at that station for down town every morning. On the morning of April 16, 1894, Mr. Jennings walked across lots from his home west of the railroad to take this train. He came to the Seventy-Sixth street crossing, and walked along the sidewalk over the freight-car tracks. The train going north which he intended to take was on the further track, just drawing up to the station, and was entirely stopped, or was in the act of stopping. He was looking to the east or southeast towards that train, and away from a passenger train, which was approaching from the north on track No. 2. As he reached track No. 2, on which the south-bound passenger train was coming, and had stepped one foot over the west rail, he was struck by that train, and killed. He had not reached any platform provided for passengers, or a point where such platform connected with the sidewalk that he was on, or any place where passengers were accustomed to get upon the train. He had a commutation ticket in his pocket, which was still good for one ride.

The charges of negligence and the allegation of due care on the part of Jennings were in controversy at the trial, but the bill of exceptions shows that the principal dispute was as to whether Jennings had become a passenger on defendant's railroad. On that question the defendant asked the court to give to the jury five instructions as to what facts were necessary to prove the averment that Jennings was a passenger, and four of them required proof of that averment to authorize a recovery under the declaration. The general purport of these instructions was that Jennings would not become a passenger, or be received by the defendant as a passenger, until he should have reached the station or platform for the purpose of taking such train, or the point where passengers were in the habit of getting on such train; and the fifth was as follows: ‘The plaintiff in this case has alleged in his declaration that Jennings was received by the defendant as a passenger, and in order to recover under this declaration the plaintiff must prove, by a preponderance of the evidence, that the relation of passenger and carrier existed between Jennings and the defendant when he was struck by the defendant's engine. As a matter of law, the court instructs the jury that a person does not become a passenger until he has in some way placed himself under the care and control of the carrier, and has been expressly or impliedly received as a passenger by the carrier, and that the fact, if it be a fact, that Jennings was on his way to defendant's station, for the purpose and with the intention of taking the defendant's train into the city, is not sufficient to make him a passenger and create the relation of passenger towards the defendant, and that relation would not commence, and he would not be received as a passenger, until he should reach the defendant's station or platform or point where he intended to take its train.’ The court refused to give any of these instructions, and did not give any which covered the same ground, or give the jury any information as to what proof was required to sustain the averment that Jennings had become a passenger. The jury were left without any guide as to the law on that subject.

What facts will create the contract relation of carrier and passenger is a question of law, and, when the existence of such relation is in controversy, it is the duty of the court to give a proper instruction, presented by a party, informing the jury what facts will be sufficient evidence of the contract. Peculiar duties and liabilities on the part of the carrier arise out of, and are based on, the existence of such contract. There is a wide difference between the liability of a railroad company to persons on street crossings or on its premises who are not passengers and its liability to its passengers. A railroad company owes to its passenger the highest practicable degree of care in transporting him and in the management and operation of its trains, and slight negligence is such a breach of that duty as will render it liable. If Jennings was a passenger the defendant owed to him the highest degree of care and prudence to carry him to his destination, to protect him from injuries from its servants and trains, and to afford him a reasonable opportunity to leave the train with safety. Pennsylvania Co. v. McCaffrey, 173 Ill. 169, 50 N. E. 713. The responsibility for this degree of care, and the liability for a failure to exercise it, begin when the contract relation begins. It is not necessary, to create the...