Chicago & A.R. Co. v. Kelly

• Court: Illinois Supreme Court
• Writing for the Court: PER CURIAM.
• Citation: Chicago & A.R. Co. v. Kelly, 182 Ill. 267, 54 N.E. 979 (Ill. 1899)
• Decision Date: 19 October 1899
• Parties: CHICAGO & A. R. CO. v. KELLY

182 Ill. 267

54 N.E. 979

CHICAGO & A. R. CO.

v.KELLY

Supreme Court of Illinois.

Oct. 19, 1899.

Appeal from appellate court, Third district.

Action by Katie C. Kelly, as administratrix of George J. Kelly, deceased, against the Chicago & Alton Railroad Company. From a judgment for plaintiff, defendant appealed to the appellate court, and from a judgment of affirmance (80 Ill. App. 675) defendant appeals. Affirmed.

Appellee, as the administratrix of George J. Kelly, brought this suit against appellant for negligently causing the death of her intestate. A trial by jury resulted in a verdict and judgment against appellant for $5,000, from which it appealed to the appellate court, where the judgment has been affirmed. The present appeal is from such judgment of affirmance. Appellee's intestate, at the time he was killed, was in the employ of the United States as transfer mail clerk at Bloomington, it being his duty to transfer mail to and from various trains arriving and departing from the Union Depot; the railroads intersecting at this point being two branches of appellant, with double track, the Big Four and Lake Erie & Western. On the night Kelly was killed the regular mail train for St. Louis was due at the station at 1:25 a. m., and upon its arrival upon the east track a freight train also arrived from the south upon the west track, and the two trains thus came to the station at the same time, the latter at a speed of from 10 to 25 miles per hour. The deport is situated on the west side of the two tracks, and between the tracks was a small platform where the mail from the south-bound trains was usually placed to be taken by the transfer clerk. To reach this platform from the depot, it was necessary to cross the west track upon which the freight train was approaching, and in attempting to do this Kelly was struck by the engine of the freight train, and instantly killed.

John E. Pollock and Wm. Brown, for appellant.

Fifer & Barry, Frank Gillespie, and A. M. Conard, for appellee.

PER CURIAM.

In deciding this case, the appellate court delivered the following opinion:

‘The case was before us at a former time, and was then reversed, and the cause remanded, for reasons stated in the opinion of the court. 75 Ill. App. 490. So far as concerns the assignment of error by which the negligence of the appellant is brought in question, and the action of the trial court in refusing the peremptory instruction to find a verdict for appellant, we must accept the verdict of two juries, and our former opinion relative to these questions, as decisive of these points. The facts established by the evidence, relative to the alleged negligence of appellant by which the death of Kelly was occasioned, are not substantially different in the present record from those appearing in the former. When the case was before us in the first instance we said: ‘The running of a freight train at a high rate of speed past a station where a passenger train is receiving and discharging passengers is so plainly negligent as not to require comment. It is equally negligent to so run a freight train just as the passenger train is pulling into the station, and more especially when the track upon which the freight train is moving is between the depot and the track on which the passenger train is moving.’ Accepting this quotation from our former opinion as binding authority in this case upon the point in question, as we think we must, under section 17 of the appellate court act, we come to consider the remaining question of fact presented by the assignment of errors and argument or counsel, whether the deceased was in the exercise of ordinary care for his own safety at the time he received his injuries, whereby his death was occasioned.

‘To properly determine this question, it should be borne in mind that the appellee's intestate had been a transfer clerk in the United States mail service, at this junction, for more than a year before his death. It is reasonable to infer from his length of service he was acquainted with the rules of appellant in respect to the running of its trains, and that he would, in the exercise of ordinary care, conform his actions in respect thereto. The following rules were in force at this station at the time of the accident in question:

“Rule 13. Passenger Trains Standing at Stations on Double Track. Trains approaching a station where a passenger train may be standing, receiving, or discharging passengers must be stopped before reaching the passenger train, and must not be started before the passenger train moves forward. When two passenger trains, running in opposite directions, arrive at a station on double track at or about the same time, the train having the right of the road (on single track) will have the right to go to the station platform first, and the other train must stand back until the opposite train has discharged its passengers and departed.'

“Rule 26. The speed of trains must not exceed six (6) miles per hour through incorporated cities and towns on the line.'

‘If, as contended by counsel for appellant, the deceased was notified that the freight train which killed him was coming, as well as the passenger train from which he was to receive mail, he had the right to rely upon appellant complying with its rule in this respect, and, relying upon it, he knew that the freight train would be stopped before reaching the passenger train, and that he could with safety do as he did. The freight train was not stopped as the rule required,...