Chicago v. Dougherty
| Decision Date | 31 December 1882 |
| Citation | 12 Bradw. 181,12 Ill.App. 181 |
| Parties | CHICAGO, BURLINGTON AND QUINCY RAILROAD COMPANYv.BRIDGET DOUGHERTY, Administratrix, etc. |
| Court | United States Appellate Court of Illinois |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of LaSalle county; the Hon. J. MCROBERTS, Judge, presiding. Opinion filed February 9, 1883.
Mr. SAMUEL RICHOLSON, for appellant; cited Laws of Ill. 1877, p. 165; Robertson v. Dodge, 28 Ill. 163; C. & A. R. R. Co. v. Becker, 76 Ill. 30; Falson v. Town of Underhill, 36 Vt. 591.
In an action of this kind where there is a want of ordinary care on the part of the plaintiff, contributing directly to the injury, the law will not attempt to measure the degree of such negligence, but will forbid a recovery: Walker v. Westfield, 39 Vt. 252; Deher v. Town of Fitchburg, 22 Wis. 677; C. & A. R. R. Co. v. Gretzner, 46 Ill. 74; C. B. & Q. R. R. Co. v. Lee, 68 Ill. 576; City of Quincy v. Barker, 81 Ill. 300; City of Centralia v. Krause, 64 Ill. 19; Lewis v. B. & O. R. R. Co. 38 Md. 588; C. & N. W. R. R. Co. v. Coss, 73 Ill. 394; Wharton on Negligence, § 133; C. B. & Q. R. R. Co. v. Johnson, 103 Ill. 512; C. & N. W. R. R. Co. v. Sweeney, 52 Ill. 325; Hanover R. R. Co. v. Coyle, 5 Smith, 396; North Pa. R. R. Co. v. Hulman, 13 Wright, 60.
A municipality can have no vested rights in the exercise of the police power of the State, even although it has been delegated by the legislature: State v. R. R. Co. 13 Md. 339; Coles v. Madison Co. Breese, 154; Rankin v. Baird, Breese, 165; Holliday v. The People, 5 Gilm. 216; Dillon on Municipal Corporations, Chap. 18, § 556.
Messrs. LELAND & GILBERT, for appellee; that a railroad company can be held guilty of negligence, even although it run its trains at a less speed than the ten miles provided by statute, cited Wabash R'y Co. v. Henks, 91 Ill. 412.
As to a failure to provide a flagman being negligence: C. & St. L. R. R. Co. v. Knutson, 69 Ill. 166.
The city had power to pass the ordinance in question: C. B. & Q. R. R. Co. v. Haggerty, 67 Ill. 115; St. L. & T. H. R. R. Co. v. Dunn, 78 Ill. 200.
As to rule of comparative negligence: Pa. Co. v. Conlan, 101 Ill. 93; Great West. R. R. Co. v. Haworth, 39 Ill. 353; C. & A. R. R. Co. v. Pennell, 94 Ill. 448.
This suit was brought by the appellee under the statute to recover damages sustained by the death of her intestate, and husband, Bernard Dougherty, alleged to have been caused by the negligence of the appellant.
The deceased was driving a team of horses attached to a lumber wagon, along Columbus street in the city of Ottawa toward his home, and as he was about to cross the track, a passenger train came upon him, and his off horse backing, the side of the engine, or car, struck the tongue of the wagon swinging it suddenly around, killing the near horse and throwing Dougherty forward out of the wagon, and so close to the rail that a passing wheel crushed one side of his head, causing instant death.
A boy about seven years old, by name of Atkinson, was in the wagon with the deceased, and he, also, was thrown out, and severely though not fatally injured. The appellee bases her right of recovery upon the alleged negligence of the appellant in running its train at a high and dangerous rate of speed over the crossing, in not having a flagman stationed there to give warning of the approach of trains, and in failing to sound a whistle, or ring a bell, as required by statute. The appellant claimed that it was free from negligence, and that the proximate cause of the death of Dougherty was his own want of care in attempting to cross the track without taking proper precaution to ascertain whether the train was approaching.
There was evidence introduced tending to prove the claims of the respective parties, and as we feel constrained to reverse this judgment for errors of law, we do not consider it necessary or advisable to express any opinion upon the weight of the evidence in the cause.
On the trial, the plaintiff was allowed to introduce in evidence an ordinance of the city of Ottawa, limiting the speed of all trains within the limits of the city to five miles per hour, and as the proof, even upon the part of the defendant below, shows that the train was running at least eight miles per hour, it is urged that the negligence of the defendant was clearly proven. When the city granted the right of way to the Ottawa, Oswego & Fox River Valley Railroad Company, the lessor of the appellant, through the city in 1867, one section of the ordinance permitted trains to be run at a speed of five miles only per hour, subject to such ordinances as the city council should from time to time pass regulating the speed and motive power within said city.
At the time this ordinance was passed, there was no statute, prescribing the rate of speed that should be incorporated in such ordinance. It may be conceded that the ordinance, at the time it was passed, was authorized by the general powers of the city to regulate the police of the municipality: C. B. & Q. R. R. v. Haggerty, 67 Ill. 113, and by implication, at least, by the statute of 1865, Sess. Law, page 103, but this statute was subsequently amended by inserting a proviso, that no ordinance should limit the speed of the trains to less than four miles per hour. But at the time of the accident in this case, the statute in force provided that, “Whenever any railroad corporation shall, by itself or agents, run any train, locomotive engine, or car, at a greater rate of speed in or through the incorporated limits of any city, town, or village, than is permitted by any ordinance of such city, town or village, such corporation shall be liable to the person aggrieved for all damages done the person or property of such person by such train, locomotive engine or car; and the same shall be presumed to have been done by the negligence of said corporations or their agents; Provided, that no such ordinance shall limit the rate of speed, in case of passenger trains to less than ten miles per hour, nor in any other case to less than six miles per hour.” Laws of 1877, page 165, and all the other acts in conflict therewith, were expressly repealed. The ordinance was but a police regulation for the safety of persons and property and as such it was competent for the legislature to limit its operation as it might deem proper for the public good, or to entirely withdraw the power to pass such municipal laws. Cities have no such vested right in the powers conferred upon them for civil, political or administrative purposes, as to deprive the legislature of the power to regulate such matters by subsequent enactment, when in its wisdom the public good demands a change of policy.
For an ordinance of this character to have the effect of raising the presumption under the statute, that an injury results from the negligence of the railroad company in running its trains at a rate of speed prohibited by it, the provisions of the ordinance should conform to the statute in that regard. The statute creates the presumption of negligence in favor of parties injured in person or property when an ordinance of the city limiting the rate of speed to ten miles per hour has been violated, and while the railroad is thus violating it an injury occurs; but as the statute declares that no such ordinance shall limit the rate of speed of passenger trains to less than ten miles per hour, we are of the opinion that one that does, can not be competent evidence in a suit between the railroad company and a third party claiming to recover for injuries alleged to be caused by negligence. It can have no bearing upon the question of negligence of the respective parties since its provisions are not such as the statute makes essential in order that the statutory effect shall follow from its violation. An ordinance limiting the rate of speed to a less degree than that named in this section of the statute must, if any effect is to be given to it, be treated as existing under the general powers of the city, without regard to this special provision of the statute, and not intended by the city as a means by which to establish the fact of negligence against such railroad company in favor of third parties.
Whether the city of Ottawa can enforce this ordinance against any railroad company to the extent of recovering the penalty prescribed for its violation, is a question not raised by this record, and we wish to be understood as only holding upon the point under consideration that this plaintiff can not avail of its provisions as evidence to raise the statutory presumption of negligence by the defendant, or as an excuse for the want of proper care by her intestate, it not being sufficient for such purpose under the statute; the fact of defendant's negligence must be established as at common law.
At the same time it must be understood that the statute does not license a speed of ten miles per hour if that rate, under the circumstances, would be negligence. As was said in the case of Wabash Co. v. Henks, 91 Ill. 406, it is a misapprehension to treat the statute as a license to run at the rate of speed not exceeding ten miles per hour. Proportioned to the danger to persons and property in running trains through populous localities, and at crossings of streets and highways where persons may reasonably be expected to be passing, must be the care exercised to avoid injury.
We conclude that the ordinance in question was improperly introduced in...
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