Chicago & A.R. Co. v. Wise

• Decision Date: 16 December 1903
• Citation: 206 Ill. 453,69 N.E. 500
• Court: Illinois Supreme Court
• Parties: CHICAGO & A. R. CO. v. WISE.

206 Ill. 453

69 N.E. 500

CHICAGO & A. R. CO.

v.WISE. ^*

Supreme Court of Illinois.

Dec. 16, 1903.

Appeal from Appellate Court, Second District.

Action by Dennis Wise against the Chicago & Alton Railroad Company. From a judgment for plaintiff, affirmed by the Appellate Court (106 Ill. App. 174), defendant appeals. Affirmed.

C. W. Brown, for appellant.

John W. D'Arcy (C. B. Garnsey, of counsel), for appellee.

Jackson street, in the city of Joliet, runs east and west, and is crossed at about right angles by the tracks of four railroad companies. On the east is the track of the Elgin, Joliet & Eastern, then in order on the west come three tracks of the Lake Shore, five tracks of the Chicago & Alton, and then five tracks of the Chicago, Santa Fé & California. At the time of the occurrence upon which this action is based there was an existing ordinance of the city providing that every railroad corporation, or other corporation operating or using by steam power any railroad track within the limits of said city, should erect, maintain, and operate, at its own expense, gates at every public street or avenue crossed by such track and specified by ordinance, and station flagmen at street crossings not provided with gates; that it should be the duty of the persons who operated said gates, and the flagman stationed at street crossings, to pay diligent attention and use every effort to notify and inform all teams, vehicles, and all and every person or persons, by means of flags by day and colored lights by night, and, if directed by ordinance, by the ringing of a bell a prescribed size and weight, of the approach to said crossings of any locomotive engine, car, or train of cars, ‘and, in case of gates, to lower them, so as to obstruct the approach along said streets to said railroad track or tracks.’ The ordinance further provided that appellant should erect and maintain at its own expense, at all times, both day and night, gates, with tenders to operate the same, at the point where its tracks crossed Jefferson, Cass, and Jackson streets, provided ‘that, inasmuch as the tracks of the Chicago & Alton, the Chicago, Santa Fé & California, and the Elgin, Joliet & Eastern Railways cross Jackson street in close proximity to each other, said companies may unite in the erection and maintenance of gates at said crossing, provided said gates are operated from a tower.’ To conform to the provisions of said ordinance, gates were erected by the three companies mentioned at the Jackson street crossing, the east gate being located on or near the east line of the right of way of the Elgin, Joliet & Eastern Railway Company, and the west gate about on the west line of the right of way of the Chicago, Santa Fé & California Railway Company, being about three feet west of the most westerly rail of the tracks of said company. These gates were operated from a tower, which stood on the north side of the street, between appellant's west two tracks. The lower side of the windows of the tower were 19 1/2 feet above the ground, thus giving the operator an unobstructed view of the street in both directions.

Appellee had been employed by appellant for about two years. He was foreman of a switch gang, consisting of an engineer, fireman, two switchmen, and himself. On June 27, 1900, at about 6 o'clock a. m., appellee, with his crew, started with a small switch engine on one of appellant's tracks north towards Jackson street. He and his two switchmen were riding on the footboard in front of the engine, appellee being on the west end of it. Their view, as they approached the Jackson street crossing, was obstructed on the west by cars standing upon the tracks there located. The whistle was not sounded nor the bell rung as the engine advanced, and just before the crossing was reached one of the switchmen, Glenn, saw a horse, drawing an open wagon, coming easterly along the street from behind the cars. Glenn called out to the others to jump, and jumped off the engine himself. Appellee attempted to jump off on the west side of the engine, which was then running at the rate of six to eight miles an hour, but was caught between the horse and wagon and the engine, and severely injured. The injuries suffered by him were to his right leg, the thigh being fractured, and the muscular tissues bruised and lacerated. Some of the muscles had to be removed, and appellee's leg was thus shortened about 2 1/2 inches. The horsewithwhich the engine came in collision at the time appellee was injured was driven by one E. L. Graves, who was engaged in delivering meat shipped into Joliet by rail. He had loaded his wagon at a car on the tracks of the Chicago, Santa Fé & California, south of Jackson street, and had then started north on a roadway between two of the said tracks to Jackson street. When he reached the street crossing he was on the right of way of the latter road and within the west gate. This gate was up, and Graves turned east on the street. He had gone but a short distance when the collision occurred.

The evidence shows that the man at the tower, who had charge of the gates, was not attending to his duties. He claims that the east gate was down; that there were some teams on the east side of that gate; that switching was being done on the tracks near that gate, and that he was watching the gate for the purpose of letting the teams across when an opportunity should occur; that by reason of his being so occupied he failed to see the approach of the engine until after the accident. He is contradicted by three witnesses, who swear that the east gate was up, and that there were no teams east of it. There is also proof in the record that he was not in sight in his tower before the accident. He failed to give the warning of the approach of the engine, which the ordinance required he should do.

Appellee brought suit against appellant and others, but afterwards dismissed his suit as to all but appellant. Upon the trial the jury returned a verdict in favor of appellee for $8,500, and, a motion for a new trial having been overruled, judgment was entered by the court for that amount. This judgment has been affirmed by the Appellate Court for the Second District, and the defendant below appeals to this court.

SCOTT, J. (after stating the facts).

The statement of facts contained in the opinion of the Appellate Court in this cause is, we think, substantially correct. We have made such alterations therein as we deemed proper, and as so altered the same is above set forth and adopted as our statement of facts.

The question is properly presented here whether, as a matter of law, the evidence for the plaintiff below, with the reasonable inferences to be drawn therefrom, is sufficient to warrant a verdict for the plaintiff. Appellant attempts to excuse the failure of the towerman to lower the west gate on Jackson street by reasoning that under the terms of the ordinance the company was required to obstruct the approach to the tracks by the use of the gates, and that it was not required to lower them as a warning, and that, even if it could be held that one about to go upon the tracks had the right to expect a warning by the gates being lowered, such right existed only for the benefit of persons approaching the railroad tracks from without the gates, and that Graves, who came upon Jackson street from the south, driving between two tracks of the Santa Fé road, was not within that class of persons that was entitled to notice of the approach of trains by the lowering of the gates. We think this entirely too strict a construction to be placed upon the ordinance. It provides: ‘And it shall be the duty of the persons who operate said gates, and the flagmen so stationed, * * * to pay diligent attention, and use every effort to notify and inform all teams, vehicles, and all and every person or persons, by means of flags by day and colored lights by night, * * * of the approach to said crossings of any locomotive engines, car or train of cars, and in case of gates, to lower them, so as to obstruct the approach along said streets to said railroad track or tracks.’ We think it a fair construction of this ordinance that the gates...