Chicago v. Dimick

• Decision Date: 14 September 1880
• Citation: 96 Ill. 42,1880 WL 10076
• Parties: CHICAGO AND NORTHWESTERN RAILWAY CO.v.FAYETTE T. DIMICK, Admr.
• Court: Illinois Supreme Court

96 Ill. 42

1880 WL 10076 (Ill.)

CHICAGO AND NORTHWESTERN RAILWAY CO.

v.FAYETTE T. DIMICK, Admr.

Supreme Court of Illinois.

Filed at Ottawa Mar. 23, 1880.Rehearing denied Sept. 14, 1880.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Rock Island county; the Hon. GEORGE W. PLEASANTS, Judge, presiding.

Mr. B. C. COOK, for the appellant.

Messrs. C. J. & C. C. JOHNSON, for the appellee.

Mr. JUSTICE CRAIG delivered the opinion of the Court:

This was an action on the case, brought by appellee, administrator of the estate of Gilbert H. Dimick, deceased, against appellant, to recover damages for the death of the deceased, caused by the negligence of appellant's servants.

On the trial the jury returned a verdict in favor of plaintiff for $3500, and under the statute then in force several special findings on questions of fact were also returned. The court set aside the general verdict, and rendered judgment in favor of the defendant, on the ground that the special findings were inconsistent with the general verdict. From that decision the plaintiff prosecuted an appeal to this court, where the judgment of the circuit court was reversed and the cause remanded. Dimick v. Chicago and Northwestern Railroad Co. 80 Ill. 338.

After the cause was remanded and placed upon the docket in the circuit court, the court, on motion, rendered judgment in favor of the plaintiff, on the verdict, for $3500. The defendant then entered its motion for a new trial, which was overruled, and an appeal taken.

It appears, from the evidence contained in the record, that on the evening of July 29, 1873, between 6 and 7 o'clock, Gilbert H. Dimick, while attempting to cross appellant's road with his team and wagon, a short distance east of Morrison, collided with a freight train going east, and was killed.

The deceased owned land on each side of the road where the accident occurred; his home was but a short distance away; he was familiar with the crossing and the running of trains over the road, and on the day of the accident he had been hauling grain on a hay rack across the railroad, and when the accident occurred the deceased and one James Doyle were riding on the empty hay rack on the wagon, sitting with their faces turned to wards the east, when the train came from the west.

The negligence relied upon to sustain the verdict, as we understand the record, is, first, that no bell was rung, or whistle sounded on the train when it approached the crossing; second, willow brush was allowed to grow and stand on the right of way near the crossing, which so obstructed the view that a train could not be seen approaching the crossing from the highway.

On the other hand, it is insisted by appellant that the deceased, without looking or listening for the approach of a train, with a full knowledge of the crossing and its surroundings, without any regard for his safety whatever, recklessly drove upon the railroad crossing, and that the accident was the result of his own negligence.

So far as is shown by the testimony in this record there are but two witnesses who are able to speak in regard to the care used by the deceased to avoid danger before driving on the track. The first one, James Doyle, said: “I was riding on the wagon with Dimick, and as the horses stepped upon the crossing the train struck the wagon and threw Dimick into the culvert and killed him. I heard no bell ring or whistle sound, until just as the horses stepped upon the crossing. The regular train passed east a few minutes before we left the house. We were not looking for this train, nor listening for a train. We both sat with our faces to the east and looking in that direction.”

The other witness, one Winters, on cross-examination, said: “I was on west side of highway and north side of railroad standing still by the fence; the train was then close by--one, or two, or three rods from the crossing; I told Dimick to stop, but I can't tell whether he understood me or not; his team was going on a fast step; I said, ‘Stop! Don't go any further. Hold on! Stop! The train is coming. Stop!’ He did not stop; I spoke loud enough so I thought he could hear; he had his face the other way; I saw the cars when I was speaking to Dimick, and heard their noise; when I spoke to Dimick I stood at the rail fence, may be a rod or two from the board fence; Dimick sat on the west side of his wagon, facing east; his servant sat on east side of wagon; was a hay rack on the wagon; no box, I think.”

These were the only witnesses who seem to have been in a position to state what caution was exercised by the deceased before driving on the track, to guard against danger, and if their evidence be true, he neither looked nor listened for a train, but deliberately drove upon the crossing with his back turned to the direction from which the approaching train came. This court has often decided that it is the duty of a person about to cross a railroad track to look and listen for an approaching train, and it is negligence to omit that duty. St. Louis, Alton and Terre Haute Railroad Co. v. Manly, 58 Ill. 300; Illinois Central Railroad Co. v. Goddard, 72 Id. 568; Chicago, Burlington and Quincy Railroad Co. v. Damerell, 81 Id. 450; Chicago and Northwestern Railway Co. v. Hatch, 79 Id. 137.

If the deceased was guilty of gross negligence the plaintiff could not recover, or if he was guilty of negligence, no recovery could be had unless his negligence was slight when compared with that of the defendant, which was gross.

Now, while there was evidence which tended to show negligence on the part of the deceased, and which might have been regarded by the jury as sufficient to defeat a recovery, the jury were instructed on behalf of plaintiff, in Nos. 1 and 8, that a recovery might be had under the circumstances named in the instruction, leaving out of view entirely any care or caution on behalf of deceased.

The instructions are as follows:

“1. The court instructs the jury, that by the law of the State of Illinois, a bell of at least thirty pounds' weight, or a steam whistle, is required to be placed on each locomotive engine, and to be rung or whistled by the engineer or fireman at the distance of at least eighty rods from the place where the railroad crosses any public street or highway, and to be kept ringing or whistling until such street or highway is reached; and the corporation or owners of the railroad are liable to any party injured for all damages sustained by reason of the neglect to comply with such requirement.”

“8. If the jury should find, from the evidence, that the defendant is guilty of the wrongful act, neglect or default as charged in the plaintiff's declaration, and that the same resulted in the death of Gilbert H. Dimick, then the plaintiff is entitled to recover in this action, for the benefit of the widow and next of kin of deceased, such damages as the jury may deem, from the evidence and proofs, a fair and just compensation for the pecuniary injury resulting from such death to such widow and next of kin, not exceeding $5000.”””

An instruction almost identical with the above was condemned in Chicago, Burlington and Quincy Railroad Co. v. Harwood, 80 Ill. 88. It may be said that the defendant's instructions gave the law on this subject accurately to the jury, but that is not enough. Where a case is close in its facts, the instructions should all state the law accurately. The jury, not being judges of law, are as likely to follow a bad instruction as a good one.

The plaintiff's ninth instruction, which undertook to state the doctrine of comparative negligence, is erroneous and calculated to mislead the jury. It was as follows:

“9. The court further instructs the jury that if they believe, from the evidence, that Gilbert H. Dimick was killed by the defendant's locomotive engine and train while he was traveling upon a highway which crossed the defendant's railroad there, although the jury may believe, from the evidence, that the deceased was himself guilty of some negligence which may have, in some degree, contributed to the injury, yet, if the jury further believe, from the evidence, that the negligence of the defendant was of a higher degree, or so much greater than that of the deceased that that of the latter was slight in comparison, the plaintiff is entitled to recover in this action.”

Where both parties have been guilty of negligence, this court has never held that the mere preponderance against a defendant will render him liable. The rule, as has often been announced, is, that although the plaintiff may have been guilty of some negligence, still, if it is slight as compared with that of defendant, which is gross, a recovery may be had. Chicago and Northwestern Railway Co. v. Clark, 70 Ill. 276.

Without entering upon any discussion of the evidence, we are of opinion that the giving of these three instructions was error. It is true, the jury were fully instructed on behalf of the defendant on every material question in the case, and if this was a case where there was no question in regard to the right of plaintiff to recover, we might not reverse on account of the erroneous instructions, but where a case is as close in its facts as this is, justice demands that all the instructions should be accurate.

It is, however, contended by appellee that the questions presented by appellant can not be considered by the court, for two reasons: First, the motion for a new trial was not made in time; second, that the motion for judgment on the special findings was a waiver of the right to move for a new trial. The statute provides, where either party desires to move for a new trial, that the motion shall be made before final judgment be entered, or during the term it is entered. The motion in this case was made at the term and before final judgment was rendered on the general verdict. It is true, a judgment had been entered at a previous term in appellant's favor on the special findings. At that time appellant did not...