Chicago & A.R. Co. v. Pearson

• Decision Date: 19 February 1900
• Citation: 56 N.E. 633,184 Ill. 386
• Parties: CHICAGO & A. R. CO. v. PEARSON.
• Court: Illinois Supreme Court

184 Ill. 386

56 N.E. 633

CHICAGO & A. R. CO.

v.PEARSON.

Supreme Court of Illinois.

Feb. 19, 1900.

Appeal from appellate court, Second district.

Action by C. G. Pearson, administrator of the estate of Ole B. Thompson, deceased, against the Chicago & Alton Railroad Company. From a judgment of the appellate court (82 Ill. App. 605), affirming a judgment of the lower court in favor of plaintiff, defendant appeals. Affirmed.C. C. & L. F. Strawn, Antoinette Funk, M. J. Scrafford, and William Brown, Jr. (C. C. Strawn, of counsel), for appellant.

A. P. Wright, A. C. Norton, and M. E. Wright, for appellee.

CARTWRIGHT, C. J.

On October 2, 1896, the Chicago & Alton Railroad Company, the appellant, operated a railroad running in a southwesterly direction through the village of Odell. Hamilton street in that village ran east and west, and crossed the tracks at about right angles. There were double main tracks and a side track. The west track was a main track for north-bound trains. The next track east was a track for south-bound trains, and east of them was the side track. On that day Ole B. Thompson approached this Hamilton street crossing on foot from the east, as a north-bound freight train was passing over the crossing on the west track,-the furthest track from him. There was a south-bound freight train approaching the crossing from the north on the other main track nearer to him, but he failed to notice it, and, without looking to see whether a train was approaching on that track, walked directly upon it about the time that the way car of the north-bound train in front of him on the other track was at the crossing. Just as he was stepping upon the track the engine struck him, and he was thrown in the air to about the height of the top of a box car, and was projected forward, turning over and over, for about 60 feet, and was instantly killed. He left a widow and six children, and another child was born after his death. Appellee was appointed administrator of his estate, and brought this suit to recover damages to his next of kin occasioned by his death.

The original declaration contained seven counts, and the court sustained demurrers to the first, fourth, and sixth. Eight additional counts were filed, which were substantial repetitions of each other, and the court required plaintiff to designate four of them upon which he would proceed. The plaintiff took the odd numbered ones,-the first, third, fifth, and seventh,-and the rest were struck out. The court then sustained a demurrer to the fifth additional count, and after the evidence was in instructed the jury to find the defendant not guilty on said first, third, and seventh additional counts, so that they were all finally out of the way. The jury returned a verdict of guilty under the second, third, fifth, and seventh counts of the original declaration. Judgment was entered on the verdict, and the appellate court has affirmed the judgment.

The principal complaint is that the court refused to direct a verdict of not guilty as requested by the defendant at the close of the evidence for the plaintiff, and again at the close of all the evidence. This assignment of error raises the question whether there was before the jury evidence fairly tending to establish the ultimate facts necessary to a cause of action. The question whether the jury decided in accordance with the weight of the evidence is one which rests with the trial court and the appellate court, and the decision of the appellate court has settled that question in this case. The counts of the declaration upon which the court refused to direct the verdict of not guilty each charged the defendant with negligence in the operation of the train, and alleged the exercise of due care by the deceased. The second charged negligence and carelessness in the operation of the train, in general terms. The third charged such negligent and careless operation in like manner, and added a charge that the defendant so negligently and carelessly obstructed the view of the tracks by railroad cars, cabooses, and telegraph poles that persons in the exercise of due care and diligence could not see up and down the tracks without stepping upon the tracks. This count was amended upon the trial by adding smoke and steam as negligent obstructions to the view. The fifth charged failure to ring the bell or blow the whistle 80 rods before reaching the crossing. The seventh charged negligence in running the train at the high rate of speed of 30 miles an hour over the crossing, which was alleged to be habitually used as a footway and driveway over the tracks. There was evidence which fairly tended to sustain the charges of negligent operation of the train. It was agreed at the trial that Odell had a population of about 1,000; that the crossing was near the center of the village, and was the one most used; and there was testimony that the train was running about 30 miles an hour. This was controverted at the trial by other testimony, but in considering this question it must be assumed that the jury might rightfully believe the witnesses fixing that rate of speed. There is the further fact that Thompson was thrown into the air, and whirled over and over, for a distance of 60 feet, and everyday knowledge would authorize an inference from that fact as to the speed of the train which struck him. There was also evidence that the statutory signals were not given; and here, again, we cannot consider the testimony in contradiction of such evidence. The evidence of failure to give the statutory signals tended to sustain the negligence charged in the fifth count, and the evidence of the rate of speed also tended to establish a high and dangerous rate under the circumstances, and to sustain the charges of the other counts. There was no evidence which tended to sustain the charge of negligence in the obstruction of the view. Telegraph poles, with the projecting arms for the support of wires, are indispensable to the business of a railroad, and it is no more negligence to have them than it is to have the railroad which could not be carried on without them. So, also, of smoke and steam. There could be no negligence in having a fire to make steam, with the resulting smoke. The train could not be run without smoke and steam. The evidence is that it was a clear, still day, and the smoke and steam from the engine of the north-bound train settled down upon the ground because of the condition of the atmosphere, which defendant was not responsible for. There were cars upon the side tracks, but they were not shown to be unnecessarily or improperly there, and that is the legitimate and proper purpose of a side track. There must be something further than the mere storing of cars on side tracks to constitute...