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

• Decision Date: 21 February 1902
• Citation: 195 Ill. 9,62 N.E. 919
• Court: Illinois Supreme Court
• Parties: CHICAGO & E. I. R. CO. v. FILLER.

195 Ill. 9

62 N.E. 919

CHICAGO & E. I. R. CO.

v.FILLER.

Supreme Court of Illinois.

Feb. 21, 1902.

Appeal from appellate court, First district.

Action by Armsted T. A. Filler against the Chicago & Eastern Illinois Railroad Company and another. From a judgment of the appellate court affirming a judgment in favor of plaintiff, defendant railroad company appeals. Affirmed.Kenesaw M. Landis and Sol Rosenblatt (W. H. Lyford, of counsel), for appellant.

Stirlen & Dickson, for appellee.

This is an action in case, commenced in the superior court of Cook county on Autust 20, 1898, by the appellee against the appellant railroad company and the Union Stock Yards & Transit Company to recover damages for a personal injury to the appellee. Both defendants filed pleas of the general issue. Subsequently, however, the pleadings were amended by discontinuing the suit as to the Union Stock Yards & Transit Company, and it proceeded against the appellant company alone. The trial resulted in finding the appellant company guilty, and assessing appellee's damages at the sum of $2,000. Motions for new trial and in arrest of judgment were overruled, and judgment was entered upon the verdict. An appeal was prayed and allowed to the appellate court. In the appellate court, appellee having remitted $1,000 from the judgment of the superior court, that judgment for the sum of $1,000 was affirmed by the appellate court, and the costs were taxed against appellee.

The material facts, as stated by the appellate court, are as follows: ‘Appellee, at the time of the accident, which occurred after dark between five and six o'clock on the evening of December 11, 1897, was thirty-three years of age, and engaged in the business of buying and selling stock at the stock yards in Chicago. He, with a companion named Waugh, had left their places of business, and had walked east therefrom through the entrance to the Union Stock Yards. This entrance was a roadway about twenty or twenty-five feet wide, and a short distance to the east of the stock yards it is crossed by four railroad tracks of the Union Stock Yards & Transit Company, which tracks were at the time in question, and before, commonly used by different railroad companies that did business at the stock yards. As appellee, with Waugh, proceeded eastward from the stock yards entrance, they found the crossing of the roadway obstructed by a freight train of appellant standing upon the easterly of the four tracks, some twenty cars of which, with the engine attached, were to the north of the crossing, and some eight or ten cars were to the south. Quite a number of other people, variously estimated by the witnesses at from one hundred to two hundred persons, had, at the time appellee came out of the entrance, congregated about and near the railway crossing, waiting to pass to the east, the train having obstructed the crossing some two or three minutes prior; and this was about the time of day when the business houses of the stock yards closed down, and the employés engaged there were on their way home. Appellee and Waugh were in a hurry to get home, and made their way through the crowd to a point very near or next to the train. Just as appellee got near to the train, one of the train brakemen pulled a coupling pin from the coupling between two cars, so as to open the crossing and allow the crowd to pass through; and as he did so the cars of the train on or near the south edge of the crossing separated from three to six feet, and as they did so appellee started through the opening thus made, and before he could get to the other side of the train the forward or northerly part of the train came back, and he was caught between the drawbar and the link attached to the other drawbar, and quite seriously bruised in his legs,’ etc.

MAGRUDER, J. (after stating the facts).

1. At the close of all the evidence the defendant below (the appellant company here) asked the court to give to the jury a written instruction, instructing them to find their verdict for the defendant on the entire evidence introduced in the case. The court refused to give this instruction, to which ruling exception was duly taken. The refusal of this instruction is the first error called to our attention in the brief of appellant's counsel. Whether or not the court erred in refusing to instruct the jury to find for the defendant depends upon the question whether there was any evidence in the case tending to support the cause of action. If there was evidence tending to show the plaintiff's right to recover, it was the duty of the court to submit the case to the jury. Landgraf v. Kuh, 188 Ill. 484, 59 N. E. 501, and cases cited. In order to entitle the appellee to a recovery, it was necessary to show that he was in the exercise of reasonable care for his own safety at the time the injury was received, and also that the appellant was guilty of such negligence as caused the injury. The first question, therefore, which arises, is whether or not the evidence tends to show that the appellee was in the exercise of ordinary or reasonable care when he was injured. Running from the gate of the stock yards eastward across the railroad tracks was a passageway or road, called by some of the witnesses a ‘highway.’ This passageway or highway was planked for a certain distance between the railroad tracks. It was used by persons passing from the gate of the stock yards eastward across the tracks. Just before the accident occurred, appelleeand some 100 or 200 other persons were standing in frout of the gate, and opposite a freight train of appellant upon the fourth track, waiting for an opportunity to cross to the eastward. The evidence tends to show that a train brakeman of the appellant, named Blade, who was near the crossing, pulled a coupling pin, so as to separate the train into two parts. The object of doing this was to clear the crossing and enable the crowd to pass through. The pulling of the coupling pin by the brakeman did separate the train into two parts. Some of the testimony tends to show that the northern part of the train, consisting of the engine and some 20 cars, was moved northward, and that some 8 or 10 cars on the south end of the train moved southward. Other evidence tends to show that the northern part of the train stood still, while only the cars at the rear end of the train moved. But whether the northern portion of the train was in motion or was standing still, the evidence shows that an opening was produced by this separation of the freight train into two parts. Appellee and a man named Waugh, with him, being in front of the waiting crowd, advanced eastward through the opening thus made for their passage. The action of the trainman in uncoupling the train and separating it into two parts was an invitation to those standing there to cross through the opening. After the appellee had proceeded about halfway through the opening, the northern or forward part of the train backed against the southern or hindmost part of the train, and the appellee was caught between the two portions of the train thus coming together. It is charged that the...