Chicago v. Halleck
| Decision Date | 31 October 1883 |
| Parties | CHICAGO, ROCK ISLAND AND PACIFIC RAILWAY CO.v.FRANK HALLECK. |
| Court | United States Appellate Court of Illinois |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of Cook county; the Hon. JOHN G. ROGERS, Judge, presiding. Opinion filed November 16, 1883.
May 8, 1882, appellee's house was being moved westward on Twenty-sixth street, in the city of Chicago, by one Stevens, a licensed house-mover. Twenty-sixth street is intersected by the railroad tracks of appellant's railroad, and while the house was being moved across the tracks, it was run into and injured about 8:20 in the evening by a northern bound freight train of appellant, and the present action was brought by appellee to recover the damages occasioned thereby.
The original declaration contained seven counts, four in case, alleging that the injury was caused by the negligence of the defendant company, and three counts in trespass quare clausum. Subsequently and after one trial had been had, the plaintiff filed by way of amendment as the record states, nine additional counts, all in case, the first, second and ninth of which allege that the injury happened through the negligence and carelessness of the defendant. The other six counts allege that the injury was occasioned by the defendant's willful and wanton neglect of duty, etc.
It appeared in evidence that one W. H. Wood was ticket or station agent at Twenty-second street for the Lake Shore and Michigan Southern, and the Chicago, Rock Island and Pacific railroad companies. Stevens, the house-mover, testified that Wood gave him permission to cross the tracks at any time between 7:30 and 9 o'clock on the evening in question. This was denied by Wood and the telegraph operator, who swear that Stevens was told that he could have from 6:40 to 7:20 if he could get across in that time, but that he was expressly told he could not cross later than 7:30, and if he could not get over by that time, he must wait until the next morning. The evidence tended to show that Stevens on previous occasions had moved buildings across appellant's tracks by permission of Wood.
The plaintiff introduced in evidence the license of Stevens, also the permit from the commissioner of public works, authorizing the removal of the house in question. The permit is made subject to various conditions, among which was the following: “No right to move the building along or across any railroad track is given, unless the consent of the officers of any such railroad to occupy the track shall first be obtained.”
Evidence was also given as to the amount of damages. There was a jury trial resulting in a verdict for the plaintiff with damages assessed at $1,250, for which sum the plaintiff had judgment and the defendant appealed.
Mr. THOS. F. WITHROW and Mr. J. C. HUTCHINS, for appellant; that it was error to refuse the instruction upon the question of the sufficient manning of the train by brakemen, cited Grand Rapids, etc., R'y Co. v. Judson, 34 Mich. 507; C. B. & Q. R. R. Co. v. Gregory, 58 Ill. 278; Galena & C. U. R. R. Co. v. Fay, 16 Ill. 558; I. B. & W. R'y Co. v. Toy, 91 Ill. 474; Tuller v. Talbot, 23 Ill. 361; O. & M. R. R. Co. v. Schiebe, 44 Ill. 460; Burkett v. Bond, 12 Ill. 87; Wharton on Negligence, § 639; I. C. R. R. Co. v. Godfrey, 71 Ill. 500; Frizell v. Cole, 42 Ill. 362; C. B. & Q. R. R. Co. v. Stumps, 55 Ill. 367; C. & A. R. R. Co. v. Gretzner, 46 Ill. 74; C. B. & Q. R. R. Co. v. Dickson, 88 Ill. 431; C. & A. R. R. Co. v. Robinson, 106 Ill. 142.
Mr. W. H. RICHARDSON, for appellee; that the verdict was not against the evidence, cited Booth v. Rives, 17 Ill. 175; Green v. Lewis, 13 Ill. 642; Schwarz v. Schwarz, 26 Ill. 81; Hall v. Sroufe, 52 Ill. 421.
As to instructions: Glickauf v. Maurer, 75 Ill. 289; T. W. & W. R. R. Co. v. Ingraham, 77 Ill. 309; Lycoming Fire Ins. Co. v. Dunmore, 75 Ill. 14; Bank of Montreal v. Page, 98 Ill. 109; Hopkins v. Ind. L. R. R. Co. 78 Ill. 32.
It is only necessary to consider a single question presented by the record in the present case.
Section sixty-three of article five of the city charter confers upon the common council the power to regulate the use of streets, to prevent obstructions upon the same, and to pass all ordinances, rules, and make all regulations proper or necessary to carry into effect the powers granted. By article one of chapter four of the revised ordinances of the city, a department of public works is established, including a commissioner of public works, to whom is committed the power to regulate and control the manner of using the streets, alleys, highways and public places of the city. By another ordinance it is provided that no person but a licensed house-mover shall remove any building within the limits of the city, and he is required to obtain a license therefor from the mayor...
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