Chicago & A.R. Co. v. Smith

• Decision Date: 19 June 1899
• Citation: 54 N.E. 325,180 Ill. 453
• Court: Illinois Supreme Court
• Parties: CHICAGO & A. R. CO. v. SMITH.

180 Ill. 453

54 N.E. 325

CHICAGO & A. R. CO.

v.SMITH.

Supreme Court of Illinois.

June 19, 1899.

Appeal from appellate court, Fourth district.

Action by F. C. Smith, administrator of the estate of Morris Rodgers, deceased, against the Chicago & Alton Railroad Company. From a judgment of the appellate court affirming a judgment for plaintiff (77 Ill. App. 492), defendant appeals. Affirmed.

Wise & McNulty, for appellant.

M. Millard, for appellee.

WILKIN, J.

Appellee sued appellant in the circuit court of Madison county for negligently causing the death of his intestate. The declaration was of four counts. The first charged that the train by which deceased was killed was negligently run; the second, that deceased was struck by one of its trains at a highway crossing, and that no bell was rung or whistle sounded; the third, that the train was being run at a rate of speed in violation of an ordinance of the village of Madison, and then and there struck and killed the deceased; the fourth, that it carelessly allowed the planking at the crossing to be so far from one of the rails as to leave a space of four inches, thereby rendering it unsafe for those passing over the same, whereby the foot of the deceased was caught and held, and he struck by the train and killed. The only plea filed was, ‘Not guilty.’ The jury returned a verdict for the plaintiff, fixing the damages at $1,000. Judgment was entered on the verdict, which has been affirmed by the appellate court.

At the close of the evidence the defendant asked the court, in writing, to instruct the jury to return a verdict of not guilty, which was refused, and one of the errors of law assigned in this court is that refusal, the contention being that the evidence, with all its reasonable intendments, was insufficient to authorize the verdict. It is not claimed that the testimony introduced on behalf of the plaintiff did not fairly tend to prove negligence on the part of the defendant, as charged in one or more of the counts of the declaration. In fact, it could not fairly be insisted that there was not some evidence tending to prove the allegations of each and every count, in so far as they charge the defendant with acts of negligence; and whether or not the weight of the testimony was to that effect is now conceded to be immaterial. It is, however, contended that the evidence wholly failed to prove due and reasonable care by plaintiff's intestate for his own safety previous to and at the time of the accident. This point was urged in the appellate court as a ground of reversal, the question then being, of course, merely as to the preponderance of the testimony; but that court, after a full statement of the circumstances of the killing, and a review of the evidence, found there was no want of reasonable care on his part. We concur in that finding. The evidence was conflicting on that point, but the most that the defendant could fairly claim would be that the weight of the evidence preponderated in its favor; and even this, we think, could not be so held. As said by the appellate court, if the testimony of the engineer and fireman is accepted as true, the deceased willfully remained upon the track with suicidal intent, and also with the intent to destroy the life of the boy who was with him, by trying to prevent him from escaping the danger. This, under all the circumstances, is unreasonable, and it is explained by the evidence on behalf of plaintiff, to the effect that the foot of the deceased was caught in the opening between the plank and the rail, and that his effort was to push the boy off the track, rather than to attempt to hold him upon it. Nor do we think it can be said, with fairness, that the attempt of the deceased to cross the track in front of the approaching train was negligence per se. As the train approached, he was standing between the track and another train passing in the opposite...