Chicago v. Carroll

• Decision Date: 31 October 1879
• Citation: 5 Bradw. 201,5 Ill.App. 201
• Parties: CHICAGO AND NORTHWESTERN RAILROAD COMPANYv.JEREMIAH CARROLL.
• Court: United States Appellate Court of Illinois

5 Ill.App. 201

5 Bradw. 201

CHICAGO AND NORTHWESTERN RAILROAD COMPANY

v.JEREMIAH CARROLL.

Appellate Court of Illinois, First District.

October Term, 1879.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Cook county; the Hon. JOHN A. JAMESON, Judge, presiding. Opinion filed, February 4, 1880.

Mr. B. C. COOK, for appellant; that amendments of pleadings by defacing them is not proper, cited Stanberry v. Moore, 56 Ill. 472; Teutonia Life Ins. Co. v. Mueller, 77 Ill. 22.

There was a fatal variance between the allegations and proofs: Ill. Cent. R. R. Co. v. McKee, 43 Ill. 119; T. W. & W. Ry. Co. v. Foss, 88 Ill. 551; C. & A. R. R. Co. v. Howard, 38 Ill. 414; Camp Point Mfg. Co. v. Ballou, 71 Ill. 417; T. W. & W. Ry. Co. v. Morgan, 72 Ill. 155; Ry. Co. v. Beggs, 85 Ill. 81; T. W. & W. R. R. Co. v. Jones, 76 Ill. 311.

Where amendments change the issues after the jury are sworn, they should be re-sworn to try the case: Kestler v. Raymond, 10 Ind. 200; Miles v. Vanhorn, 17 Ind. 245.

An amendment which changes the issue should not be allowed after the evidence and arguments are closed: Hoot v. Spade, 20 Ind. 326; R. R. Co. v. State, 16 Ind. 456; Blazingham v. Blazingham, 34 Ind. 87; Holcraft v. King, 25 Ind. 332; Landry v. Durham, 21 Ind. 232.

A railroad company is not bound to provide seats for all passengers in cases of emergency. In such cases if there is standing room within the car, and a person voluntarily stands upon the platform, he does so at his own risk: Quinn v. Ill. Cent. R. R. Co. 51 Ill. 495; R. R. I. & St. L. R. R. Co. v. Coultas, 67 Ill. 398; Goldstein v. C. M. & St. P. R. R. Co. 8 Reporter, 253; G. & C. U. R. R. Co. v. Rae, 18 Ill. 488; Wharton on Negligence, § 627.

Plaintiff was bound to use reasonable caution to prevent an injury; C. & A. R. R. Co. v. Randolph, 53 Ill. 510; P. C. & St. L. R. R. Co. v. Krouse, 30 Ohio St. 222.

The instruction that if plaintiff took position on the car by request of an employe of the road, he may recover, was improper because there was no evidence on which to base it: Herrick v. Gary, 83 Ill. 85; Bradley v. Parks, 83 Ill. 169; Reinbach v. Crabtree, 77 Ill. 182; Andreas v. Ketcham, 77 Ill. 377; Ind. & St. L. R. R. Co. v. Miller, 71 Ill. 463; American v. Rimpert, 75 Ill. 228.

Negligence is not to be presumed: Wharton on Negligence, § 421.

Messrs. SCATES, HYNES & DUNNE, for appellee; as to right to make amendments, cited Beesley v. Hamilton, 50 Ill. 88; Parmalee v. Fischer, 22 Ill. 212; Laber v. Cooper, 7 Wall. 565, Rev. Stat. 1874, 137; Smith v. Vanderburg, 46 Ill. 34; Cogshall v. Beesley, 76 Ill. 445; Ill. Cent. R. R. Co. v. Simmons, 38 Ill. 242; Lakebrink v. Bœhmer, 11 Chicago Legal News, 76.

Going to trial by consent without issues being made up, a judgment will not be reversed for want of them: Kelsey v. Lamb, 21 Ill. 559; Brazzle v. Usher, Breese, 35; Ill. Cent. R. R. Co. v. Simmons, 38 Ill. 242.

Defendant should have declined to receive more passengers than it had capacity to accommodate: G. & C. U. R. R. Co. v. Rae, 18 Ill. 488.

BAILEY, P. J.

This was an action on the case, brought by Jeremiah Carroll against the Chicago and Northwestern Railway Company, to recover damages for a personal injury received by the plaintiff, as he claims, by means of the negligence of the servants and employes of the defendant. The injury was received on the 30th of May, 1877, while the plaintiff was being carried on one of the defendant's passenger trains from Chicago to Calvary, a station situated about ten miles north of the defendant's depot at Chicago. The day was being observed as ““Decoration Day,” and a very large number of persons presented themselves to the defendant for transportation from Chicago to the two cemeteries situated respectively at Rose Hill, eight miles north of Chicago, and at Calvary.

The evidence shows that on Decoration Day the previous year, only about three thousand persons were carried over the defendant's road from Chicago to these two cemeteries. On the occasion in question, the officers of the company had made, as they supposed, liberal provisions for the accommodation of all who might wish to go, basing their estimate mainly upon the experience of the previous year; but as it turned out, a very much larger number than was anticipated came, and as a consequence, the cars were greatly crowded. Some sixty passenger coaches had been provided, each having seats for fifty-six or fifty-eight persons, and by returning a portion of them, and using them a second time, over one hundred coaches composed the trains actually run. It appears that six thousand persons in all, which was double the number of the preceding year, were carried.

The evidence shows that four trains were run during the forenoon, two of them being regular trains, and two extras. Which of the four was the one on which the plaintiff took passage, does not distinctly appear, except that at least one train, if not two, followed it. He seems to have reached the depot at about eight o'clock in the morning. At the time of his arrival, a large number of cars were standing in readiness, all of which were crowded with passengers when he got there.

After obtaining from the defendant a ticket to Calvary and return, he went to the cars and found them all crowded and packed full, even to the platforms. He thereupon remarked to a friend who was with him that they would have to ride on the platform, but as the day was fine, it would do them no harm, and so he took a seat on the steps of the platform of one of the cars, and remained there until the train reached Rose Hill. The train consisted of some forty-two coaches and two engines, and carried, as was estimated, from twenty-five hundred to three thousand passengers. From one-third to one-half of said passengers were on their way to Rose Hill, and left on arriving at that station. As the cars were being started after said passengers were discharged, the draw-bar at the rear end of one of the cars near the center of the train pulled out so as to break the train in two. The platform on which the plaintiff was sitting was in the rear of and immediately adjacent to the disabled car, and the plaintiff and others about him, on hearing the noise occasioned by the pulling out of the draw-bar, fearing some accident, jumped off on to the ground. At this time no one was injured. The plaintiff, instead of returning to the car on which he had been riding, or of seeking some place inside of that or some other car vacated by the passengers who had left, got on to the disabled car. On his direct examination he claims to have done this for fear of being left behind, but on cross-examination, he testifies that he does not know why he took that car, only as he had a ticket, he had as good a right to get on that as on any other car. He admits that he knew that the disabled car was about to be set out of the train and left behind, and such must have been the fact, since it appears that before starting, the employes in charge of the train notified and required the passengers to vacate said car, so that it might be left, and that in pursuance of such requirement, the passengers, the plaintiff included, passed through to the next car in front.

The evidence is conflicting as to the number of passengers in the last mentioned car, after the disabled car had thus been vacated, but there is evidence tending to show that it was very much crowded, and that the plaintiff, who seems to have been the last one to leave the other car, was only able to find standing room on the platform. The forward section of the train was thereupon run north a little distance to a switch, after reaching which it was backed slowly down the side-track, and before it came to a halt, the car to be set out was detached, whereupon the usual signal was given to the engineer to stop. Immediately thereafter, and as the disabled car had separated from the train a few feet, according to the testimony of the plaintiff and several of his witnesses, a jar or jerk of the train of considerable violence was felt, and by means thereof, as the plaintiff claims, he was thrown from the platform down between the rails, and had one of his legs so crushed and broken as to require amputation, and also had one of his hands so injured as to permanently impair its use.

On the trial in the court below, the plaintiff recovered a verdict for $4,750, for which sum and costs, the court, after denying the defendant's motion for a new trial, rendered judgment for the plaintiff.

Complaint is made of various rulings of the court below in giving and refusing instructions to the jury. The questions thus raised we will now consider, as far as we deem them necessary to a proper determination of the case.

The second instruction given at the instance of the plaintiff was as follows:

“The court instructs the jury that if they find, from the evidence, that the plaintiff had purchased a ticket from defendant, over defendant's railroad to Calvary, on the 30th day of May, 1877, to be used on that day, it was the duty of defendant to provide safe and sufficient accommodations for the conveyance of said plaintiff.”

The rule of diligence incumbent on the defendant is here stated too broadly. It should be observed that the only negligence complained of in the declaration to which this instruction can apply did not consist in furnishing cars in any degree defective or unsafe, but of failing “to furnish sufficient cars with seats therein for the accommodation of all its passengers, so that they might safely and comfortably ride therein.”

Undoubtedly if the cars furnished had been defective in any particular which could have been obviated by the exercise of the highest care...