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

• Decision Date: 24 October 1904
• Citation: 211 Ill. 446,71 N.E. 1050
• Court: Illinois Supreme Court
• Parties: CHICAGO & E. I. R. CO. et al. v. SCHMITZ.

211 Ill. 446

71 N.E. 1050

CHICAGO & E. I. R. CO. et al.

v.SCHMITZ.

Supreme Court of Illinois.

Oct. 24, 1904.

Appeal from Appellate Court, First District.

Action by Appollonia Schmitz against the Chicago & Eastern Illinois Railroad Company and others. A judgment was rendered in favor of two of defendants, and from a judgment of the Appellate Court affirming a judgment in favor of plaintiff against defendants Chicago & Eastern Illinois Railway Company and another they appeal. Affirmed.Calhoun, Lyford & Sheean, for appellants.

Richolson & Levy (C. Stuart Beattie, of counsel), for appellee.

This is an appeal from a judgment of the Appellate Court affirming a judgment of the superior court of Cook county against appellants. The action, which was in case to recover damages for personal injuries sustained by appellee on September 26, 1900, was originally brought against the two appellant companies, the Chicago & Eastern Illinois Railroad Company and the Chicago & Western Indiana Railroad Company, and also the Chicago & Grand Trunk Railway Company and the Wabash Railroad Company. At the close of the plaintiff's case peremptory instructions were given to find the Grand Trunk and the Wabash Companies not guilty, and a verdict and judgment were entered accordingly. The case then proceeded to verdict and judgment for appellee against the two appellant companies. There was no decision by the Appellate Court, as one of the justices had presided at the trial below and took no part in the proceedings, and the two remaining justices were unable to agree upon the case as presented for review, so that judgment was affirmed by operation of law.

The accident which caused the injuries happened in Chicago at a point where Twenty-Fourth Place, running east and west between Twenty-Fourth and Twenty-Fifth streets, crosses eight railroad tracks running north and south. The easterly four of these tracks are the Pennsylvania or Ft. Wayne tracks. The westerly four are the Chicago & Western Indiana Railroad Company's tracks. The two sets of tracks are separated by a space 12 or 15 feet wide, and in this space was the tower house occupied by the operator of the crossing gates. On the night of the accident plaintiff left her house, which was about 2 1/2 blocks from the tracks, a little before 8 o'clock, and was proceeding along the south sidewalk of Twenty-Fourth Place going west. She passed over four tracks of the Pennsylvania System, and approached near to the east track of the four tracks, controlled by the Western Indiana Railroad Company. She says that when she came to the tracks she looked north and saw nothing. She stopped and stood under the tower house while a freight train on the fourth or westerly track of the Western Indiana tracks passed to the south. She says that she heard the rattling of the engine of the freight train. According to her statement, when the last car of the freight train cleared the sidewalk, she saw the gate west and in front of her go up, and she moved forward; but as she stepped upon the Western Indiana tracks, looking south, she saw the light of an engine, and was struck, according to her statement, on the first track-that is, the easternmost track of the four Wabash Railroad tracks-by a locomotive going north. The testimony of appellants tended to show that the locomotive which struck the appellee, or plaintiff below, was a locomotive of the appellant the Chicago & Eastern Illinois Railroad Company. After being struck, appellee was assisted by two men from the place of the accident to a church, to which she was on her way when she was struck, and after staying there a few minutes until she recovered from a fainting spell was assisted to her home by some women. She was confined to her bed about four months, and to her home about nine months. She was injured in her side, hip, and shoulder, and has since been troubled with dizziness and vomiting spells, and has been lame and obliged to use a crutch. She was at the time of the accident 52 years old, and weighed about 135 pounds, and at the time of the trial weighed 121 pounds.

The declaration consisted of one original and two additional counts. The original count charges that the Western Indiana Company was owning and controlling a certain right of way with a certain railway and certain tracks and gates and other appurtenances thereon across a certain public highway, to wit, Twenty-Fourth Place, and that the Chicago & Eastern Illinois Railroad Company, Wabash Railroad Company, and Grand Trunk Railroad Company, by agreement with the Chicago & Western Indiana Railroad Company, were using said right of way, etc., and said defendants so carelessly, negligently, and wrongfully operated and managed said railway and the gates and other appurtenances thereon that by and through the carelessness, negligence, and wrongful conduct of the defendants plaintiff was injured. The first additional count charges that the Western Indiana Railroad Company ‘owned, controlled, and operated a certain right of way,’ etc., with tracks and gates, and the defendants ‘used said right of way, tracks, etc., in pursuance of their business for the running of trains, etc., and that the defendants so carelessly, negligently, improperly, and wrongfully ran, drove, operated, managed, and controlled their said locomotives, engines, etc., that the plaintiff was injured.’

The second additional count charges that the defendants controlled and operated a certain other right of way and certain tracks and gates and appurtenances thereon, with a certain railway, and that said defendants ‘used said right of way, railway tracks, and other appurtenances in the pursuance of their business of running trains, engines, etc.; that they so negligently, carelessly, etc., operated, managed, and controlled their engines that plaintiff was injured.’

The plea was the general issue to the entire declaration. At the close of the plaintiff's case, and again at the close of all the evidence, each of the appellants requested the court to give a peremptory instruction to the jury to find a verdict of not guilty. Such instructions were refused as to the present appellants, and exceptions were preserved. A special interrogatory, at the request of the appellants, was submitted to the jury, which was: ‘Could the plaintiff, by the exercise of ordinary care, have discovered the approach of the engine or train in time to have avoided the accident by the exercise of ordinary care on her part?’ To this special interrogatory the jury answered ‘No.’

MAGRUDER, J. (after stating the facts).

1. Appellants contend that the peremptory instructions to find them not guilty should have been given upon the alleged ground that the only conclusion to be drawn from the evidence is that appellee was guilty of contributory negligence. It will be noted that the contention of the appellants is, not that the evidence tends to show that appellee was guilty of contributory negligence, but that, as matter of fact, the appellee was guilty of contributory negligence. The objection so made by counsel seems to impose upon this court the task of passing upon the weight of the evidence. Such is not the province of this court in a case of this kind. It cannot be denied, under the facts of this case, that there was evidence tending to show that appellee was in the exercise of due care for her own safety when she was injured, and that appellants were guilty of such negligence as caused the injury. Appellee says that when advancing west on Twenty-Fourth Place towards the four easterly tracks of the Pennsylvania Company the gate on Twenty-Fourth Place on the east side of those tracks was open, and, as it was open, she advanced through the gate across the four tracks of the Pennsylvania Company to the space between them and the Western Indiana tracks, where she took her stand under the tower house. The tracks in question ran north and south on Stewart avenue across a public highway, to wit, Twenty-Fourth Place, and therefore, if the eastern gate was up or raised, she was justified in advancing west upon the south sidewalk of Twenty-Fourth Place across the Pennsylvania tracks. The testimony of the appellants tends to show that the eastern gate was down, or closed, and that the appellee passed through the space between the end of the gate and the fence. Appellee is sustained in her statement that the gates were up by the testimony of another witness. But it was for the jur to say whether or not the eastern gate was raised or whether it was closed.

While standing under the tower house in the space 12 feet wide between the Pennsylvania tracks on the east and the four Western Indiana tracks on the west, appellee saw a freight train pass south on the fourth or westernmost track of the Western Indiana Railroad Company's tracks. The bell of the freight train was ringing, and she heard it. As soon as this freight train passed across Twenty-Fourth Place to the south, she says that the western gate on the west side of the Western Indiana tracks was raised, and that, seeing the gate open, she started upon Twenty-Fourth Place to the west. As we understand the evidence, there is nothing to contradict her statement that the gate on Twenty-Fourth Place west of the Indiana tracks was thus raised or open when the freight train had passed. She syas that before she started west across the first or easternmost track of the Western Indiana tracks she looked north, and saw nothing, and that she was unable to see towards the south on account of a post which stood there, but that, as soon as she started across the first track an engine coming from the south towards the north struck her, and as she was struck she saw its headlight.

The fact that the gates on the west side of the Western Indiana tracks were raised after the passage of the freight train to the south, operated as an invitation to her to proceed west. Whether she was justified in doing so, and whether she...