Chicago v. Gretzner

• Decision Date: 30 September 1867
• Citation: 1867 WL 5336,46 Ill. 74
• Parties: CHICAGO AND ALTON R. R. COMPANY.v.CHARLES GRETZNER.
• Court: Illinois Supreme Court

46 Ill. 74

1867 WL 5336 (Ill.)

CHICAGO AND ALTON R. R. COMPANY.

v.CHARLES GRETZNER.

Supreme Court of Illinois.

September Term, 1867.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Cook county; the Hon. ERASTUS S. WILLIAMS, Judge, presiding.

The facts in this case are fully stated in the opinion of the Court.

Mr. A. W. CHURCH and Messrs. MILLER, VAN ARMAN & LEWIS, for the appellants.

Messrs. WARD & STANFORD, for the appellees.

Mr. CHIEF JUSTICE BREESE delivered the opinion of the Court:

This was an action on the case brought in the Superior Court of Chicago, by Charles Gretzner, against the Chicago and Alton Railroad Company, for injuries received by plaintiff by a collision of the train of defendants with the wagon of the plaintiff, by which he was thrown out, and seriously injured, and that the collision was caused by the negligence of the defendants. The declaration contained three counts, the first of which averred negligence generally, on the part of the defendants. The second count charges negligence on the part of the defendants in running their train at a too high rate of speed, and in not having a flagman stationed at the street crossing where the accident occurred; and the third count charges the negligence, in not ringing a bell, in running the train at a too high rate of speed, and in not having a flagman stationed at the crossing.

The cause was tried by a jury on a plea of not guilty, and a verdict rendered for the plaintiff of seven thousand five hundred dollars, on which judgment was entered, the court refusing the defendants' motion for a new trial, and a bill of exceptions taken.

We have examined the testimony in the cause and are satisfied it does not sustain the verdict. The great preponderance of the evidence is in favor of the defendants. It was not attempted by the plaintiff, on the trial, to prove that the bell was not rung, or that the rate of speed of the train was too high, he being content to rest his case, on the alleged absence of the flagman from his post. It was proved, on the part of the defendants, that the bell was rung from the time the train left the freight house, continuously, to the moment of the collision, and that the speed of the train was slackened to the rate of about five miles per hour. As to the presence of a flagman at his post, the plaintiff examined five witnesses who testified they saw the collision, though from different points of view, and they testify they saw no flagman on duty before the collision. One of them, Duffig, says he was excited at the time, and paid no attention to the flagman, and don't know whether there was one or not -- don't recollect. Bohnet says the flagman generally stands in the middle of the street, and if there, he could not see him where he, witness stood -- thought of nothing until the collision occurred, any more than when any one passes. Donlan states he was standing at southwest corner of Van Buren and Canal streets, about half a block from the collision, talking to two young men there. While talking, one of the young men turned around and said “look.” Witness looked and saw just as the car came up and struck the hind part of the wagon; could see down the street; flagman usually stood in the centre of the street; was not there then. On his cross-examination he said, that a good many persons and teams were passing there -- that all he knew about flagman was, that he did not see any. The collision was just on the point of happening when he looked.

Helper states he saw the collision -- had just stepped out of a saloon on the south side of Van Buren street, near the bridge, and plaintiff passed him on a lively trot about one hundred feet from the rail road; witness was going west on Van Buren street, saw plaintiff, when he came near the collision try to turn back but could not, a pile of dirt being in the way; did not see any flagman there just previous to the collision; would probably see flagman if he was there; the train was moving along pretty briskly.

On his cross-examination he says it was in his mind if plaintiff went on, he would probably be struck by the cars; the cars were backing north, and were in the middle of the street when he first noticed them; only saw them a little moment before the collision; noticed nothing before the collision; heard hallooing just before the collision; was excited and did not notice anything in particular before he noticed the collision.

The other witness for plaintiff, John Fairbanks, testified that he crossed Van Buren street just before the collision and there was no flagman then in the middle of the street; did not see any flagman there; had seen him there before; sometimes they stand in the middle of the street, sometimes on a little side-walk built out from the main side-walk in the street; no flagman was there when he crossed over. The cross-examination of the witness should satisfy any jury that he was a sort of witness whose testimony should be received with great caution, as it was shown he testified differently, at a former trial of the cause. His is the only testimony going to the point in controversy.

On the part of the defendants, it was proved positively, by the engine driver, by the baggage man, by Michael Curtin, the acting flagman on the day of the collision, and by the switchman, that the flagman was at his post making the required signals. They also proved, by Monday, a carpenter, that he was planking Van Buren street between the railroad and the bridge; saw the plaintiff riding in a butcher's wagon; was eighty three feet; when he passed witness was riding at a fast trot; stooped his head quite carelessly; the man at the crossing hallooed, and when witness heard it he looked towards the track, and saw Michael Curtin; thinks he was waving a red flag towards him, and hallooing: “back, back,” at the same time; heard him distinctly; plaintiff was about eight feet from the track when witness heard the hallooing, but did not slacken his speed; his horse got on the track with forewheels of the wagon, and then he endeavored to run off. One Quaid states he recollected the accident; was on sidewalk on north side of Van Buren street, five or six feet from the railroad; had been filing his saw by the side of the flag house; the first he noticed was Curtin hallooing to a man--waving his flag and hallooing to the man that was hurt; plaintiff was then fifty or sixty feet east of the track, driving on a pretty fast trot; did not slacken until he came to the railroad track, then stopped and tried to turn him off; Curtin was standing in the middle of the street.

These two last named witnesses were employees of other railroads running to Chicago.

When it is considered, that three of the witnesses for plaintiff, Dolan, Bohnet and Helper, were not in a position to have seen the flagman, had he been at his post, and that the attention of no one of the five was directed to that fact, and that not one of them save Fairbanks, swears he was not at his post; whilst all the witnesses for the defence, six in number, swear positively he was at his post making the usual signals required by the occasion; and their testimony, unimpeached and of a character clear and apparently unexceptionable, we are at a loss to perceive on what grounds such a verdict was rendered. The witnesses for the defence had a far better opportunity of being informed as to this fact than those on the other side, and this court has said, and such is the doctrine of all the books, that a jury, in determining the weight of testimony between two witnesses, the preponderance should be given to the one whose advantages for being correctly informed as to the matters in controversy, were the best. Brady v. Thompson, 17 Ill. 270.

Although it may be admitted, that the witnesses for the defence were, a majority of them, in the employment of the party for whom they were called, however far that fact should go to instruct the jury to examine closely their testimony, and receive it with caution, it does not justify the jury in discrediting them to the extent of rejecting their testimony entirely. What is a railroad company to depend upon if they cannot call upon their agents for the facts in their knowledge? And what a hardship it would be, practically, upon them to say, though your agents have done their whole duty, as they have sworn, and no witness has contradicted them, yet, being your agents in your employment, and in your pay, they must be discredited; and the weak and unsatisfactory testimony of others, alien to the corporation, shall prevail over it.

This court has said, that a jury cannot willfully, or from mere caprice, disregard the testimony of an unimpeached witness-- that while they may judge of the credibility of a witness, they must exercise their judgment whilst doing so, and not their will merely. Robertson v. Dodge, 28 Ill. 161. It is true, this court said, in the case of the Chicago, Burlington and Quincy Railroad Company v. Triplett, 38 Ill. 484, and the same company v. Cauffman, ib. 427, where one class of witnesses are apparently free from all bias, and upon another class a very heavy moral responsibility attaches from the burden of which they have the strongest inducements to relieve themselves if possible, by their testimony, a jury is justified in giving more weight to the testimony of the former class; yet, tested by this rule, however grievous the load of responsibility of the engine driver and flagman may have been, there was none resting upon the switchman, or the baggage man, for neither had anything to do with running the train, giving or regarding signals, nor had the two indifferent spectators of the collision, Monday and Quaid, any connection with this road in any capacity. Some weight must be given to the testimony of the responsible persons, that is certain, and if any is given to it, then, if fortified by the testimony of indifferent men, it should have prevailed over the testimony of the...