Chicago v. Dickson

• Decision Date: 31 January 1878
• Citation: 1878 WL 9901,88 Ill. 431
• Parties: CHICAGO, BURLINGTON AND QUINCY RAILROAD COMPANYv.LAURA A. DICKSON.
• Court: Illinois Supreme Court

88 Ill. 431

1878 WL 9901 (Ill.)

CHICAGO, BURLINGTON AND QUINCY RAILROAD COMPANY

v.LAURA A. DICKSON.

Supreme Court of Illinois.

January Term, 1878.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Fulton county; the Hon. LYMAN LACEY, Judge, presiding.

Messrs. JUDD & WHITEHOUSE, for the appellant.

Messrs. SHOPE & GRAY, for the appellee.

Mr. JUSTICE DICKEY delivered the opinion of the Court:

This is an action, brought by Laura A. Dickson (wife of Uriah W. Dickson), to recover damages for injuries sustained by her from being thrown from a buggy in the village of Prairie City, on the 12th of August, 1870.

Certain facts of the transaction are not seriously disputed, if at all. The railroad of appellant passes through this village on a line bearing some 22 1/2 degrees east of north. The streets of the village, with the exception of a narrow lane mentioned hereafter, are laid out, so far as shown in this case, at right angles, and run east and west and north and south. Centre street runs north and south, and intersects the track of the railroad at an acute angle, at a point south of and about 180 rods from the depot or railway station in that village. At this point, and a few rods east of the railroad, a small street or public highway branches to the right from Centre street, and runs along the east side of the railroad, and parallel to it, through a lane about forty feet wide, and within three rods of the railroad track. This lane was opened by the town authorities, and at that time was traveled every day. This road is about 43 rods long, and communicates with and terminates in the west end of Louisa street, which begins three rods from the railroad track, and at the north end of this narrow lane, and runs then eastward.

On the 12th of August, 1870, Uriah W. Dickson and his wife (the appellee) were traveling in an open buggy, drawn by two horses, driven by Mr. Dickson. They came from the south, on Centre street, to a point very near the intersection of that street by the railway, and there turned to the right, entering this narrow lane, intending to pass through it and thence east on Louisa street, without crossing the railroad. When they entered this lane, a passenger train of appellant was approaching the village from the south. This train had not then reached the crossing at that point, but was some 20 to 50 rods to the rear of the team. Soon after the team entered the lane, and before it was half way through the lane, the horses took fright, became unmanageable, ran away, and as they made the turn to the right into Louisa street, at the north end of the lane, the buggy was capsized, and Mr. and Mrs. Dickson were both thrown violently to the ground. They were both seriously injured, but the injuries of Mrs. Dickson were much the most serious. As the team ran, the train continued its course, and at the time of the disaster was very nearly, if not exactly, opposite the place of injury.

As to the circumstances thus far stated, the proof is clear and without contradiction, and about these facts there seems to be no dispute. Mr. Dickson, who drove the team, testifies that he had no knowledge or suspicion that a train was near until after he had turned to the right into the lane. He also testifies that his team was gentle, and had been accustomed to be driven close to passing trains and locomotives, and had shown no signs of fright under such circumstances.

There is nothing in the evidence tending to contradict these statements. Uncontradicted evidence shows, also, that the whistling post, at which the whistle was usually sounded as a signal for the approach to that station of a train from the south, stands at a point on the railroad 25 rods southward from the crossing at the south end of the narrow lane, 68 rods south of the place where the buggy was overturned, and 205 rods south of the station, and that the only street crossings on the road between the whistling post and the station were the crossing of Centre street (at the south end of the lane), and two other crossings, one about twenty rods north of the place where the buggy capsized, and another about twenty rods farther north.

The proof also shows, without contradiction, that on the day of the disaster there was nothing on the track calling for the sounding of an alarm whistle. The testimony of Mr. Dickson, who drove the team, and that of the engineer who managed the engine, concur substantially in showing that the ordinary station whistle was sounded a little before the train reached the whistling post, and that at about that time the team entered the lane; that the team started to run away at a point from 10 to 17 rods from the south end of the lane. The engineer testifies, that when he first saw the team the horses were running away, and were then from one-quarter to one-third through the lane, and that the train was then between the whistling post and the south end of the lane, and that when the buggy turned over the train was just passing the team. Mr. Dickson testifies, he first saw the train just after he entered the lane, and at that time it was south of the whistling post; that the horses began to jump a few rods farther on, and at within five rods of the middle of the lane they began to run away, and when the buggy was thrown over at the north end of the lane the train passed on the railroad track. About all these facts there is no material conflict in the testimony. The gist of this controversy rests elsewhere.

In the first count of plaintiff's declaration, the specific wrong charged as the cause of the injury to plaintiff is contained in the allegation, that while the train was approaching from the rear, defendant's servants caused the whistle to be sounded in...