Chicago & A.R. Co. v. Lewondowski

• Decision Date: 18 April 1901
• Citation: 190 Ill. 301,60 N.E. 497
• Parties: CHICAGO & A. R. CO. v. LEWONDOWSKI.
• Court: Illinois Supreme Court

190 Ill. 301

60 N.E. 497

CHICAGO & A. R. CO.

v.LEWONDOWSKI.¹

Supreme Court of Illinois.

April 18, 1901.

Appeal from appellate court, First district.

Action by Anton Lewondowski against the Chicago & Alton Railroad Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Lee & Hay (William Brown, of counsel), for appellant.

Seth F. Crews and Ralph Crews, for appellee.

HAND, J.

This is an action on the case, brought by the appellee against the appellant in the circuit court of Cook county, to recover damages for a personal injury inflicted upon him while crossing the railroad tracks of the appellant on a public street in the village of Lemont, in said county, by being struck by a locomotive engine pulling a freight train. The declaration contained four counts, the last of which the court instructed the jury to disregard. The first count charged negligence in general terms; the second, in running said engine and cars at a greater rate of speed than allowed by the ordinances of said village; and the third, in failing to ring a bell or sound a whistle. The defendant filed the general issue; also a special plea, in which was set up a release by the plaintiff to the defendant of the cause of action declared on. To the additional plea the plaintiff, by leave of court, filed two replications, in the first of which he averred that he was under the age of 21 years when said release was executed, and that he had offered to return to the defendant the money paid him at the time of the execution thereof; and, in the second, that he did not receive said sum of money in full satisfaction and discharge of the cause of action declared on in his declaration,-to which the defendant filed a general denial. This case has been tried four times, resulting each time in a verdict for the plaintiff. At the last trial the verdict was for $10,500, upon which the court rendered judgment after overruling a motion for a new trial, which judgment has been affirmed by the branch appellate court for the First district upon the appellee entering a remittitur in that court of $4,500, and a further appeal has been prosecuted to this court.

Special interrogatories were submitted to the jury, upon which it returned, with its verdict, special findings, as follows: ‘Q. Did a car or cars of the train that came from Joliet, going to Chicago, run over the plaintiff's left foot? A. No. Q. Did a car or cars of the train that came from Chicago run over the plaintiff's foot? A. Yes. Q. Did the engine and cars of the train that came from Chicago run over the plaintiff's left foot? A. Not the engine, but the cars. Q. How old was the plaintiff on September 11, 1889? A. Twenty years, three months, twenty-eight days. Q. At what rate of speed did the train that came from Chicago cross Stevens street? A. Twenty-three miles per hour. Q. Did the engine on the train that came from Chicago ring a thirty-pound bell continuously for at least eighty rods before reaching Stevens street? A. The bell on the engine, we believe, was ringing. Q. Did the engine on the train that came from Chicago sound a whistle at least eighty rods before reaching Stevens street? A. We believe that the only whistle blown was at the mile post. Q. Was the plaintiff struck by the train that came from Chicago at Stevens street? A. Yes. Q. Did the smoke from the train that was going to Chicago prevent the plaintiff seeing the train that came from Chicago? A. Yes.’ At the close of the plaintiff's testimony, and again at the close of all the testimony, the defendant moved the court to instruct the jury to find for the defendant, which the court declined to do, to which ruling of the court in that behalf the defendant excepted.

The appellant's railroad, in running south from Chicago towards Joliet, passes through Lemont, a village of about 5,000 or 6,000 inhabitants. There are two tracks, running side by side, passing through the village, which at Stevens street are located on Main street, and run in an easterly and westerly direction. The north track is used by trains going east, and the south track by trains going west. The depot is located on State street, south of the tracks, and about two blocks west of Stevens street. Stevens street crosses the tracks almost at right angles, and is the main street in the village, the principal business district of the village being located thereon north of the railroad. The accident happened on the evening of the 11th of September, 1889, at about 7:40 o'clock. The appellee lived on the south side of the tracks, and, desiring to go to a drug store on the north side thereof, he approached the Stevens street crossing from the south as an east-bound freight train was passing over the crossing on the north track, the further track from him. There was a west-bound freight train approaching the crossing from the east, on the south track. He waited until the way car of the east-bound train had passed the crossing, looked up and down the track, and listened to ascertain whether or not a train was approaching from the east. Seeing or hearing nothing, he stepped upon the track, when the engine from the west-bound train struck him, and he was thrown some 30 or 40 feet to the west. His left foot was crushed, necessitating amputation below the knee; his right ankle and right elbow were fractured, two ribs broken, and a severe injury inflicted upon his head.

It is contended on behalf of appellant that appellee was guilty of such contributory negligence as to prevent a recovery in this case. The evidence tended to show that it was dark at the time of the accident; that the train which injured appellee was running down grade, with the steam shut off, and making little noise, at a high and prohibited rate of speed, over the most public traveled street of said village; that the only whistle sounded was at the mile post; that the plaintiff's view of the approaching train was obscured by the smoke and dust of the train which had just passed; that, if a bell was rung, by reason of the sound of the passing train he did not hear it, nor did he, or others in the immediate vicinity, see a headlight upon the approaching locomotive, if the same was lighted. The question whether appellee exercised ordinary care for his own protection was dependent upon all the surrounding circumstances. In this case the facts are such that reasonable men of fair intelligence might readily draw different conclusions therefrom. The question of negligence was therefore properly submitted to the jury.

In Railroad Co. v. Fell, 182 Ill. 523, 55 N. E. 554, which was an action against a railroad company to recover for personal injuries sustained at a public crossing (on page 524, 182 Ill., and page 555, 55 N. E.), we say: ‘Whether she [the plaintiff] looked or listened, or otherwise observed proper caution to ascertain whether a train was approaching, before she stepped upon the track; and whether her view was obstructed, and the noise of the train drowned by other noises proved; and whether the trainmen in charge of the engine were observing a proper lookout to avoid collisions at such public crossing, and were or not running the train at a speed prohibited by the ordinances of the city; and whether or not the bell was rung or whistle sounded, as required by the statute,-were all questions of fact controverted on the trial, and finally settled before the case reached this court.’ In Railway Co. v. Hansen, 166 Ill. 623, 46 N. E. 1071, it was held not to be negligence, in every case and under all circumstances, for a person whose view is obstructed by smoke and dust from a train passing on one track to step upon a parallel track before his view becomes unobstructed; that, where the facts are such that reasonable men of fair intelligence may draw different conclusions, the question of contributory negligence should be submitted to the jury. And in Railroad Co. v. Pearson, 184 Ill. 386, 56 N. E. 633 (on page 390, 184 Ill., and page 635, 56 N. E), we say: ‘The killing of Thompson by the train was admitted, and the remaining question is whether the court could say, as matter of law, that he was not in the exercise of ordinary care for his own safety. There was no dispute at the trial as to the manner in which he walked upon the track where he was struck and killed. After he crossed the side track, he could have seen the approaching train, if he had looked. It was in plain sight for a long distance, and he did not look in the direction from which it was coming, or give any attention to it. A traveler upon a highway approaching a crossing is required by the law to use such care as a person of ordinary prudence would exercise under the same circumstances. This ordinarily demands the use of his faculties, and sight and hearing are the senses by which he may discover whether there is a trian approaching or not. It was a necessary element of plaintiff's case to prove the exercise of such care; and the conduct of the deceased, with all the surrounding circumstances, was placed before the jury. The evidence showed that the north-bound train was passing on the further track, with the usual noise attendant upon a freight train, and it is evident that the attention of the deceased was...