Chicago v. Harwood

• Court: Illinois Supreme Court
• Writing for the Court: SHELDON
• Citation: Chicago v. Harwood, 80 Ill. 88, 1875 WL 8713 (Ill. 1875)
• Decision Date: 30 September 1875
• Parties: CHICAGO, BURLINGTON AND QUINCY RAILROAD CO.v.CLARA M. HARWOOD.

80 Ill. 88

1875 WL 8713 (Ill.)

CHICAGO, BURLINGTON AND QUINCY RAILROAD CO.

v.CLARA M. HARWOOD.

Supreme Court of Illinois.

September Term, 1875.

APPEAL from the Circuit Court of Stark county; the Hon. J. W. COCHRAN, Judge, presiding.

Mr. O. F. PRICE, and Messrs. MCCULLOCH, STEVENS & WILSON, for the appellant.

Messrs. JOHNSON & HEWITT, and Mr. M. SHALLENBERGER, for the appellee. Mr. JUSTICE SHELDON delivered the opinion of the Court:

This was an action on the case, brought by appellee against appellant, to recover for causing the death of her husband at a highway crossing, through the alleged negligence of appellant's servants in charge of a freight train running on the railroad of the appellant, on the 17th of August, 1874. The plaintiff below recovered a verdict and judgment, and the defendant appealed.

This judgment must be reversed for error in giving and refusing instructions.

The court below gave to the jury the following instruction for the plaintiff:

“The jury are instructed that, under the laws of this State, the defendant was bound, by its servants, to ring a bell on the locomotive or sound the whistle eighty rods distant from any highway crossing, and to sound or ring the same continuously until the crossing is reached. And in this case, if the jury believe, from the evidence, that the defendant, by its servants, neglected to ring the bell or sound the whistle continuously for eighty rods before they approached the highway, and that, by reason of such negligence, Riley Harwood was killed, then, in that case, the jury will find for the plaintiff, if they further believe, from the evidence, that the plaintiff is the administratrix of said Riley Harwood, and that their verdict, if they find for the plaintiff, can not exceed the sum of $5,000.”

The accident took place at midday. It appears, from the evidence, that the place where it occurred was a plain crossing, on a level with and at right angles with the railroad. The deceased lived about forty rods east of the crossing, his land extending to the west of the railroad. About forty rods west of the crossing, and on the north side of the highway, is a school house, between which and the crossing was a hedge, some eight feet high, thick set and in full leaf. The hedge extended toward the railroad, to a point fifty feet from the centre of the railroad track. After getting inside of that fifty feet, in coming from the west, there was nothing to obstruct the view of an approaching train from the north. It could be seen anywhere up to the whistling post, eighty rods north of the crossing. The deceased, at the time of the accident, was driving in a wagon, drawn by two horses, from the school house toward his house, along the highway, with the hedge between him and the train, which was approaching from the north. His son Nelson was at the school house when his father passed by. Nelson remained to put up a fence, and the father drove on toward the crossing, on a walk. The son heard the train distinctly. The deceased was not seen again by any witness until he was seen by the engineer, driving up to the track. The engineer gave this testimony: “When between the ringing post and crossing I noticed this man drive along the road; I was about twenty rods away; he was a few rods back; I could see him over the hedge; when I first saw him I blew the whistle; he turned then--turned his face toward the train; I supposed he noticed me, and would stop; he came on until his horses' heads were under the sign board, pretty close to the track, then he made two efforts to back the team up with the lines; he was not on the track at that time; he then raised up off the seat and whipped the horses ahead; they went ahead, and he...