Chicago Terminal Transfer R. Co. v. Schmelling

• Decision Date: 19 June 1902
• Citation: 64 N.E. 714,197 Ill. 619
• Parties: CHICAGO TERMINAL TRANSFER R. CO. v. SCHMELLING.
• Court: Illinois Supreme Court

197 Ill. 619

64 N.E. 714

CHICAGO TERMINAL TRANSFER R. CO.

v.SCHMELLING.¹

Supreme Court of Illinois.

June 19, 1902.

Error to appellate court, First district.

Action for personal injuries by Robert Schmelling against the Chicago Terminal Transfer Railroad Company. From a judgment of the appellate court (99 Ill. App. 577) affirming a judgment in favor of the plaintiff, the defendant brings error. Affirmed.Jesse B. Barton, for plaintiff in error.

Kickham Scanlan and Edgar L. Masters, for defendant in error.

This is an action on the case, brought by Robert Schmelling, defendant in error, against the Chicago, Burlington & Quincy Railroad Company and plaintiff in error, the Chicago Terminal Transfer Railroad Company. Some of the allegations of negligence in the two counts of the declaration were joint as to both defendants and also several as to each of them. A plea of not guilty was filed by each defendant. At the close of the plaintiff's evidence he entered a nonsuit as to the Chicago, Burlington & Quincy Railroad Company. Subsequently the trial resulted in verdict and judgment in favor of the defendant in error. Upon appeal to the appellate court, the judgment of the superior court of Cook county was affirmed. The present appeal is prosecuted from such judgment of affirmance.

On August 8, 1898, appellee boarded an early morning train of the appellant, as a passenger, at Fifty-First street, in Chicago, for the purpose of riding to Twenty-Sixth street in that city. Plaintiff in error's train, upon which appellee was thus a passenger, consisting of about four cars besides the engine, was what was called a ‘workingmen's train,’ used for the purpose of carrying workingmen early in the morning to their work. The train arrived at its stopping place at Twenty-Sixth street a few minutes after 6 o'clock, and, in dismounting from the train at that point, appellee was struck by the engine of a freight train upon the track of the Chicago, Burlington & Quincy Railroad, and suffered the injury for which the present suit is brought. For some 70 or 75 feet south from the point where the defendant in error was struck, the track of the plaintiff in error and the track of the Chicago, Burlington & Quincy Railroad Company run parallel and directly south; but, when this distance of 70 or 75 feet is reached, both tracks make a curve to the west. The westerly rail of the westerly track of the Chicago, Burlington & Quincy Railroad was distant toward the east from the easterly rail of the easterly track of the plaintiff in error, about 1 1/2 or 2 feet according to some of the testimony, about 6 feet according to other evidence, 7 or 8 feet according to some of the witnesses, and as much as 8 or 9 feet in the opinion of one of the witnesses. The evidence tends to show that the appellee, when he went upon the train, paid his fare and took his seat in the first car. When the car reached Twenty-Sixth street, the conductor called out the station, known as ‘Twenty-Sixth Street,’ at the back door in the rear end of the car. Defendant in error, when he heard the announcement of the conductor, got up and walked out upon the front platform, and he says: ‘The train stopped, and I got off.’ If the train had not actually stopped when defendant in error got off, it was ‘slowing up’ to make the stop. He alighted from the easterly front platform of the front car of the train, and moved directly east. He was in the habit of going to work on that train in the morning, and had been in the habit of doing so for nearly a year and a half. He worked at that time in a lumber yard east from the Twenty-Sixth street station, to reach which he would go one block to Western avenue, and then up Blue Island avenue to the lumber yard. The step of the platform where he dismounted, was about 18 inches or 2 feet from the ground. He walked two steps, and was about to step upon the track of the Chicago, Burlington & Quincy Railroad Company, when some one called to him, and he turned around toward the north, and was struck by a locomotive of the Chicago, Burlington & Quincy Railroad Company, about two or three minutes, as he says, after the time when he jumped off the platform. It is admitted that trains on the road of the plaintiff in error regularly stopped at Twenty-Sixth street, that there was a railroad crossing just south of the line of Twenty-Sixth street, that every train going north stopped close up to the crossing, that every train going south stopped close up to Twenty-Sixth street, that the train that morning stopped at the usual place of stopping to let on and off passengers going north, and that this stopping place is advertised as such on the company's time-tables. Just east of the track of plaintiff in error, from which defendant in error alighted, are two more tracks of the Burlington & Quincy Railroad Company, and east of them a switch track of the same company. Just west of the track of the plaintiff in error, on which the car in which defendant in error was a passenger stood, are another track of the plaintiff in error and also a side or switch track of the same company. Just north of the place of the accident, two tracks of the Santa Fé road run at right angles across the tracks of the plaintiff in error and the Chicago, Burlington & Quincy Railroad. Just north of the Santa Fé track is Twenty-Sixth street, but there is no sidewalk on the south side of Twenty-Sixth street. In the middle of Twenty-Sixth street are two tracks, on which run electric cars east and west. The business of defendant in error was that of a bricklayer. At this Twenty-Sixth street stopping place plaintiff in error had no depot or platform of any kind or description. The ground between the track of plaintiff in error and the track of the Chicago, Burlington & Quincy Railroad was between five and seven inches below the level of the tracks. It was not boarded, but composed of stone and sand. Just how much space there was between the train of plaintiff in error, as it stood at the time of the accident, and the Chicago, Burlington & Quincy train, as it passed, is not altogether clear from the evidence. One of the witnesses says that there was just enough room for a man to stand. The freight train of the Chicago, Burlington & Quincy Railroad Company consisted of some 16 or 18 empty stock cars and one way car. The tender of the engine of the latter train was in front. The train of the plaintiff in error going north overtook the Chicago, Burlington & Quincy train and passed it, but immediately began slowing up, so that it had ‘slowed up’ and stopped for the Santa Fé crossing, while the Chicago, Burlington & Quincy train was passing it. It is admitted that the place where the train of plaintiff in error stopped was not only a regularly advertised stopping place of the train in question, but was a statutory stopping place.

MAGRUDER, C. J. (after stating the facts).

If the acts of negligence charged in the declaration against the Chicago, Burlington & Quincy Railroad Company alone be eliminated, the acts of negligence charged in the declaration against the plaintiff in error are that it did not provide a suitable platform or other means for passengers to safely alight from its cars at Twenty-Sixth street, and failed to keep its railroad at a safe and suitable distance from that of the Chicago, Burlington & Quincy Railroad Company, and also failed to provide means for crossing the Chicago, Burlington & Quincy Railroad in safety.

1. The first point made by the plaintiff in error is that the trial court erred in overruling its motion to take the case from the jury at the close of all the evidence, and in refusing to give its instruction, then asked and offered in writing, directing the jury to find it not guilty. This instruction was properly refused, if there was evidence tending to show the right of the defendant in error to a recovery, because in such case there must be a submission to the jury. Landgraf v. Kuh, 188 Ill. 484, 59 N. E. 501;Railway Co. v. Baddeley, 150 Ill. 328, 36 N. E. 965; Railroad Co. v. Filler, 195 Ill. 9, 62 N. E. 919. The plaintiff in error contends that there is no evidence tending to show that at the time of the injury the defendant in error was in the exercise of ordinary care for his own safety. As we understand the argument of counsel upon this branch of the case, his contention is that defendant in error was guilty of negligence, as matter of law, upon two grounds. The first ground is the charge that the defendant in error alighted from the car while it was in motion. In support of this position authorities are referred to holding, in substance, that it is negligence for a passenger to alight from a moving train of cars, the motive power of which is steam. Railway Co. v. Meixner, 160 Ill. 320, 43 N. E. 823,31 L. R. A. 331, and cases cited. In the case at bar there was evidence to the effect that, when the defendant in error alighted from the car on which he was riding, the train had stopped. There is other testimony tending to show that, while the train had not actually stopped, it was moving very slowly. One of the witnesses testifies that the train of the plaintiff in error, on which the defendant in error was riding, stopped about 7 feet south of the Santa Fé tracks, so that there were 7 feet clear between the front of the engine and the Santa Fé tracks; and at the same time he states that the train was about 10 or 15 or 20 feet south of the Santa Fé tracks when the defendant in error was struck. It follows that the train moved a distance only of from 3 to 13 feet northward before it stopped after defendant in error alighted from it. It must, therefore, have been moving very slowly. But whether he alighted from the train after it stopped, or while it was ‘slowing up’ for the purpose of stopping, was a question of fact for the jury to determine. The judgment of the trial court, and the judgment of the appellate court affirming it, settle...