Chicago & A.R. Co. v. Corson
| Decision Date | 19 June 1902 |
| Citation | 198 Ill. 98,64 N.E. 739 |
| Court | Illinois Supreme Court |
| Parties | CHICAGO & A. R. CO. v. CORSON. |
OPINION TEXT STARTS HERE
Appeal from appellate court, Third district.
Action by Reuben Croson, Jr., as administrator of the estate of Rebecca Corson, deceased, against the Chicago & Alton Railroad Company. From a judgment of the appellate court (101 Ill. App. 115) affirming a judgment for plaintiff, defendant appeals. Affirmed.
Patton, Hamilton & Patton and Wm. Brown, for appellant.
James M. Graham, for appellee.
This is an action on the case, brought by the appellee, as administrator, against the appellant, in the circuit court of Sangamon county, to recover damages for the wrongful killing of Rebecca Corson, his intestate, by being struck by a passenger train of appellant at a highway crossing in said county. The declaration contains two counts, the first of which avers that the deceased was killed at a highway crossing, while in the exercise of due care for her own safety, in consequence of the train being run at an excessive rate of speed; and the second, that, in addition to the train being run at an excessive rate of speed, appellant failed to ring a bell or sound a whistle when approaching said highway crossing, as required by statute, in consequence of which said intestate, while in the exercise of due care for her own safety, was struck and killed by said passenger train. The appellant filed the general issue. The jury returned a verdict in favor of appellee for $4,500, upon which judgment was rendered by the court, which judgment has been affirmed by the appellate court for the Third district, and a further appeal has been prosecuted to this court.
The court instructed the jury, on behalf of the appellant, that, the point at which the deceased was struck and killed being outside of a city or village, it could not be held liable for the rate of speed at which the train was running if it was not otherwise at fault. This instruction was, in effect, a direction to the jury to disregard the first count of the declaration, and the case was submitted to the jury on the second count thereof. The evidence introduced on behalf of the appellee tended to show that on the morning of September 9, 1900, the deceased, a young woman aged 22 years, in company with her brother, aged about 11 years, started with a horse and buggy from their father's residence in the county, half a mile east of the railroad, to go to Ashland to attend Sunday school; that the deceased knew the condition of the crossing and that the train was due about that time but did not know whether it had passed or not. The view of the railroad, as it was approached by the parties, was obstructed by a hedge fence, willow trees, and a field of corn. When within a short distance of the crossing the deceased, who was driving, stopped the horse and listened. Not hearing the train, and the view being obstructed. her brother stood up in the buggy and looked and listened, and, not seeing or hearing the approaching train, they drove rapidly forward to make the crossing. When the horse was within 12 or 15 feet of the track the train was seen approaching from the north, some 300 feet distant, whereupon the deceased struck the horse with the lines in an endeavor to hurry it forward and clear the crossing. The engine struck between the horse and the buggy, throwing the horse on one side of the track and the buggy on the other. The young woman was killed. Her brother escaped without injury. The train was late, and running at from 40 to 50 miles per hour. By reason of growing trees and other obstructions along the right of way the approaching train could not be seen until the parties were within about 30 feet of the track, and no whistle was sounded or bell rung as the train approached the crossing. At the close of the evidence of appellee, and again at the close of all the evidence, the appellant moved the court to peremptorily instruct the jury to return a verdict in its favor, which the court declined to do, and the action of the court in this behalf is mainly relied upon by the appellant for a reversal of this case.
There was a sharp conflict in the evidence as to whether or not the bell was rung or the whistle sounded as the train approached the highway crossing at which appellee's intestate was killed. The jury, the trial judge, and the appellate court having found that issue in favor of the appellee, it is conclusively settled in this court that the appellant failed to ring the bell or blow the whistle upon...
To continue reading
Request your trial