Chicago & A.R. Co. v. Byrum

• Decision Date: 30 October 1894
• Citation: 38 N.E. 578,153 Ill. 131
• Court: Illinois Supreme Court
• Parties: CHICAGO & A. R. CO. v. BYRUM.

153 Ill. 131

38 N.E. 578

CHICAGO & A. R. CO.

v.BYRUM.¹

Supreme Court of Illinois.

Oct. 30, 1894.

Appeal from appellate court, Third district.

Action on the case by Sarah J. Byrum against the Chicago & Alton Railroad Company. Plaintiff obtained judgment, which was affirmed by the appellate court. Defendant appeals. Affirmed.Blinn & Hoblit, for appellant.

Beach & Hodnett, for appellee.

BAKER, J.

Appellee brought case against appellant in the circuit court of Logan county, and recovered judgment upon a verdict for $3,000. This is an appeal from the judgment of the appellate court for the Third district affirming that judgment. Appellant was declared against as a common carrier of passengers for reward. The declaration alleged damages to appellee, who was a passenger on one of appellant's trains between the villages of Broadwell and Elkhart, in consequence of injury to her person caused by the negligence of appellant, in that, upon the arrival of appellant's said train at Elkhart, and while appellee, in the exercise of due care and caution, was about to alight therefrom, appellant carelessly and negligently caused said train to suddenly and violently start and move, and thereby appellee was thrown with great violence from said train to the platform; that said train was not stopped at Elkhart a sufficient length of time to allow appellee to safely alight therefrom, and while she, in the exercise of due care and caution, was about to alight from the train, appellant carelessly and negligently allowed said train to be started and moved, causing appellee to be thrown with great force and violence upon the platform; and that appellee was attempting to alight from said train as fast as she could do so after the train stopped at Elkhart, and while she was on the steps of the car, attempting to alight upon the platform of the depot, the appellant, through its agents and servants, negligently caused the train to be moved, and the speed of the train was suddenly and greatly accelerated, by means whereof appellee was thrown, without any fault or negligence on her part, violently from the steps of the car upon the platform, her right arm broken, etc. The facts in the case, as found by the appellate court, and which we are forbidden to review, are, briefly, as follows: That on the morning of October 28, 1890, appellee was a passenger on appellant's train, returning from Broadwell to her home, in Elkhart, where the train arrived shortly after daylight. She occupied a seat in the rear or north end of the chair car, which was crowded. When the brakeman announced the station, and as the train slowed up, she started with her valise in hand to go down the car, and out by the forward door, but was somewhat impeded by others coming in. The train stopped but a short time. Appellee got out upon the platform as soon as she could, and then perceived that the train had started, but was moving so slowly that she thought she could step off without danger. When she made the attempt to alight, the train had moved only about two-thirds the length of the car, or 40 feet. In stepping off, she was thrown down upon the platform by the motion of the car, her right arm was broken, and she was otherwise bruised, cut, and injured.

Appellant's first objection-that there ia a variance between the proof and the declaration-is not well taken. The objection was not interposed to the admission of the evidence on the trial. Moreover, it was not among the reasons assigned in writing in support of the motion for a new trial. The objection, in order to have availed appellant, should have been specifically made at the time the testimony was offered in evidence. Had it been so made, the objection could have been obviated by amendment of the declaration. Society v. Fietsam, 97 Ill. 474; Railroad Co. v. McMath, 91 Ill. 104.

Appellant contends that there was error in giving instructions numbered 4 and 6 in behalf of appellee, which were as follows: (4) ‘The court instructs the jury that common carriers of persons are required to do all that human care, vigilance, and foresight can reasonably do, consistently with the character and mode of conveyance adopted and the practicable prosecution of the business, to prevent accidents to passengers riding upon their trains, or alighting therefrom.’ (6) ‘It is the duty of common carriers to do all that human care, vigilance, and foresight can reasonably do under the circumstances, and, in view of the character of the mode of conveyance adopted, reasonably guard against accidents and consequential injuries; and, if they neglect so to do, they are to be held strictly responsible for all consequences which flow from such neglect; that, while the carrier is not an insurer for the absolute safety of the passenger, it does, however, in legal contemplation, undertake to exercise the highest degree of care to secure the safety of the passenger, and is responsible of the slightest neglect resulting in injury to the passenger, if the passenger is at the time of the injury exercising ordinary care for his or her own safety; and this care applies alike to the safe and proper construction and equipment of the road, the employment of skillful and...