Chicago v. Hutchinson

• Decision Date: 12 May 1887
• Citation: 120 Ill. 587,11 N.E. 855
• Court: Illinois Supreme Court
• Parties: CHICAGO, ST. L. & P. R. CO. v. HUTCHINSON.

120 Ill. 587

11 N.E. 855

CHICAGO, ST. L. & P. R. CO.

v.HUTCHINSON.

Supreme Court of Illinois.

May 12, 1887.

Appeal from appellate court, First district.

Willard & Driggs, for Chicago, St. L. & P. R. Co., defendant and appellant.

Burke & Hallett, for appellee.

SHOPE, J.

Appellee brought suit in the superior court of Cook county to recover of appellant damages for personal injuries sustained by him in consequence of having the vehicle in which he was riding run into by a backing passenger train on appellant's railroad at its intersection with Jefferson street, in the city of Chicago. A trial in that court resulted in a verdict and judgment thereon for $5,000. On appeal to the appellate court of the First district, this judgment was affirmed, and appellant prosecutes this further appeal.

The plaintiff in his declaration alleges due care and caution on his part in crossing the railroad track; negligence on the part of servants of appellant in the management of the train; in the failure to give signals as provided by law; in running the train at a greater rate of speed than permitted by law, and the ordinance of the city of Chicago; in the failure of appellant to employ a flag-man at the crossing, as required by the ordinances of said city; and in negligently permitting the flag-man to be absent from his post, etc. It is conceded that it was the duty of appellant to keep a flag-man at the crossing in question to warn all persons attemptingto cross of the approach of trains on its railroad, and that the speed of passenger trains was by ordinance of the city limited to 10 miles an hour. The jury having found the facts favorable to appellee, and the appellate court having affirmed the judgment of the superior court upon such finding, we are precluded from a consideration of the facts, except in so far as it may be necessary to determine the correctness of the ruling of the court in giving or refusing instructions.

In that respect it will be material to say that the evidence relating to the occurrence resulting in plaintiff's injury is conflicting, and wholly irreconcilable. That introduced by appellee shows that he approached the crossing driving a single horse hitched to a light wagon; that he stopped when within 30 feet of the crossing, and looked for the flag-man, who he knew was required to be stationed there, but no flag-man was in sight, nor was any signal of danger given or displayed; that he then looked in each direction for a train, and could neither see nor hear one approaching; he then drove upon the crossing, when a train backing at the rate of speed of from 20 to 25 miles per hour struck the hind wheel of his wagon, throwing him a considerable distance, whereby he was seriously and permanently injured; that no notice or signal by ringing the bell or otherwise was given by the approaching train; that he did not discover the train until about on the crossing; and that he could have passed safely then but for the great speed at which it was driven. It is further shown that the view was obstructed in the direction from whence the train approached, and that the flag-man was at the time a considerable distance away attending to a switch. On the other side, it was shown that the train was backing down to the depot, on time, and being driven at a speed not exceeding six miles per hour; that the bell was ringing, and a man was stationed on the rear platform as lookout, who, as soon as he saw appellee, signaled the engineer, and everything was done that could be to stop the train; that the flag-man was on the crossing doing his duty, and signaled the approach of his train, and endeavored, by shouting, waving his flag, and by running towards appellee, to apprise him of the danger, but that appellee, disregarding the approach of the train, without stopping at all upon approaching the track, put whip to his horse, and drove immediately in the way of the slowly-backing train; that he was so close to it that he had to drive off the plank forming the crossing proper, and over the exposed rails of the railroad track.

Two instructions were asked by the appellant, and refused by the court, as follows: ‘(1) The jury are instructed that it was the duty of the plaintiff, before crossing the track on which the collision in question occurred, to look in both directions for the approach of any train. It was also his duty to observe any warning given of the approach of any train; and if he had any notice that a train was near, and about to pass along in front of him, it was his duty to stop, and wait until the same had passed. (2) If the jury believe from the evidence that the plaintiff was negligent, and thereby failed to observe the near approach of a train along one of the tracks in front of him, or if the jury believe from the evidence that by reason of negligence or inattention on his part he did not observe any signals of the approach of the train in question, and that such negligence caused or materially contributed to the injury in question, then he cannot recover.’

The refusal of these instructions was not erroneous. A vice common to each of them is that they assume that ‘warning’ or ‘signals' of the approach of the train was given. We have seen that this was one of the controverted facts of the case. The instructions, if given, would have a tendency to mislead the jury, and exclude from consideration the case made by appellee. We are aware of expressions by this court when passing upon the law and fact, and of like expressions by other courts of the highest respectability, that the failure of one approaching a railroad crossing to pause and look for the approach of trains was such negligence as would, in the case there under consideration, preclude a recovery. But we are not prepared to say, as a matter of law, that a person approaching a railroad crossing when there is nothing apparent to warn him of danger, and at which he knows a flag-man is stationed, whose known duty it is to warn all persons of danger from running trains, is required to look elsewhere than to the flag-man. The flag-man's duty is to know of the approach of trains, and to give timely warning to all persons attempting to cross the railroad track, and the public have a right to rely upon a...