Chicago & A.R. Co. v. Dillon

• Decision Date: 20 January 1888
• Citation: 15 N.E. 181,123 Ill. 570
• Court: Illinois Supreme Court
• Parties: CHICAGO & A. R. CO. v. DILLON.

123 Ill. 570

15 N.E. 181

CHICAGO & A. R. CO.

v.DILLON.

Supreme Court of Illinois.

January 20, 1888.

Appeal from appellate court, Fourth district.

John Dillon brought this action against the Chicago & Alton Railroad Company to recover damages for personal injuries sustained while driving over a crossing. Judgment for plaintiff, Defendant appeals.Luke H. Hite

and Brown & Kirby, for appellant.

W. H. Bennett and Dill & Schaefer, for appellee.

MULKEY, J.

On the twentieth of November, 1882, John Dillon, the appellee, in attempting to cross the railway tracks of the National Stock-Yards, in or near East St. Louis, at their intersection with Avenue F, received a serious permanent injury, caused by the vehicle in which he was riding being struck by a passing locomotive engine owned and operated by the Chicago & Alton Railroad Company. The horse he was driving was killed outright, the wagon shattered to pieces, and Dillon himself was thrown a considerable distance, with such force as to cause a serious rupture, partially disabling him for life, and totally disabling him for several months. In 1883 he commenced an action on the case in the circuit court of St. Clair county against the Chicago & Alton Railroad Company, the appellant herein, to recover damages for the injuries thus received by him, which were laid in the declaration at $25,000. The record before us does not appear to contain a transcript of all the proceedings which have occurred in the case from its inception, yet we are able to gather from it that the cause has been tried three times, each trial resulting in a verdict for the plaintiff. In one of them the jury assessed the plaintiff's damages at $875, in another at $4,000, and in the last at $3,500.

The case has been heard twice in the appellate court. On the first hearing the judgment of the court below was reversed, and the cause remanded for further proceedings. On the last hearing that court affirmed the judgment of the trial court, and the present appeal is from the judgment of affirmance.

The avenue upon which the plaintiff was dirving runs in a north-westerly and south-easterly direction, and the railway tracks by which it is intersected at the place of collision run nearly east and west. On the westerly side of the avenue, and immediately south of the track, is a large log-house, having many compartments, the east end of which is bounded by the avenue. This structure is from 60 to 100 feet in width, and extends westerly upon the line of the tracks its full length, about the eighth of a mile. It was so high and closely built that no one in the avenue south of the crossing could see a train or engine coming from the west. The engine which occasioned the injury was coming from that direction, and the plaintiff was approaching the crossing from the south-east, but, as his view of it was entirely cut off by the log-house on his left, he consequently could not judge of the safety in crossing except by means of hearing. The large amount of business done at the stockyards, as is shown by the evidence, necessarily leads to a great deal of travel back and forth over the crossing by those like the plaintiff doing business there.

In view of the circumstances stated, the duty of the defendant to operate its train at a moderate rate of speed, and to give the usual signal of its approach by ringing the bell or sounding the whistle, or both, become the more imperative. Of this there can be no question. The negligence imputed to the defendant in the declaration, and on account of which a recovery was had below, is the alleged failure of the defendant to do either of these things. It is averred in the declaration that the defendant neither rang the bell nor blew the whistle; also that the train was being run at a high rate of speed. This is denied by the defendant's plea, and the cause was tried on these issues.

If the statements of the witnesses on the part of the plaintiff be accepted as true, all three of these averments in the declaration were sufficiently proved on the trial. If, on the other hand, the defendant's witnesses are to be believed, the defendant was guilty of no negligence whatever; but that injury complained of was the result of plaintiff's own imprudence and negligence. Of course, these questions are not before us, they having been definitely and finally settled by the appellate court adversely to the appellant. It only remains to consider whether any errors of law have intervened of sufficient gravity to require a reversal of the judgment.

Several of appellee's witnesses were permitted to state on the trial, against the objections of the defendant, that they were near the crossing at the time of the accident, but did not hear any bell or whistle, and that, in their opinion, if the bell had been rung or the whistle sounded, they would have heard it, and this is assigned for error. We perceive no valid objection to the ruling of the court upon this subject. Questions of this character are constantly permitted by the most enlightened trial judges, and we are aware of no authority questioning the propriety of allowing them. The cases of Hopkins v. Railroad Co., 78 Ill. 32;Railroad Co. v. Moranda, 108 Ill. 576; and Railroad Co. v. Conlan, 101 Ill. 93,-cited by appellant's counsel as sustaining the contrary view,-do not, so far as we are able to discover, even look in that direction. Such questions are permitted as matter of convenience, and to avoid prolixity in the examination. When a witness says he was near enough and would in his opinion have heard or seen a given signal had it been given, he, in effect, says there was nothing to prevent his seeing or hearing it, as the case might be. The permitting of these questions to be asked, obviated the necessity of asking a great many others to prevent certain unfavorable inferences that might be urged if not asked; such as, whether their hearing was good, and, if not, to what extent injured; if good, whether their attention was attracted to any thing else at the time; whether there was any noise or confusion which might have caused them not to observe or note the fact that...