Chicago v. Lee

• Decision Date: 30 September 1877
• Parties: CHICAGO, BURLINGTON AND QUINCY RAILROAD COMPANYv.MARY J. LEE, Admx.
• Court: Illinois Supreme Court

87 Ill. 454

1877 WL 9879 (Ill.)

CHICAGO, BURLINGTON AND QUINCY RAILROAD COMPANY

v.MARY J. LEE, Admx.

Supreme Court of Illinois.

September Term, 1877.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Henderson county; the Hon. ARTHUR A. SMITH, Judge, presiding.

Messrs. MILLER & FROST, for the appellant.

Messrs. DOUGLASS & HARVEY, for the appellee.

Mr. JUSTICE WALKER delivered the opinion of the Court:

Since this case was previously before this court, the plaintiff's declaration has been amended, and additional proofs introduced on the last trial. The evidence shows that about the 10th of November, 1869, a collision occurred between an engine of appellant and the team and wagon of Darius B. Lee, whilst being driven by him on a highway crossing appellant's railroad. Lee was killed by the collision, and his administratrix sues to recover for loss, under the provisions of the statute. On a trial in the court below, as on each of the previous trials, plaintiff recovered a verdict, and the court, after overruling a motion for a new trial, rendered a judgment on the verdict, and the company appeals.

When the first and second trials were had, the only negligence averred in the declaration was, the failure to sound a whistle or ring a bell at the crossing where Lee was killed. In the counts since filed the additional negligence averred is, that the company permitted a building to stand upon its grounds near the track, and suffered weeds and brush to grow and stand upon its grounds, so as to obstruct the view of deceased as he approached the road, and that the train was run at an unusually high rate of speed, and no bell was rung or whistle sounded, and that deceased was killed by reason of such negligence.

On the last trial, there were three additional witnesses, who testified they were in a position to hear, and had an opportunity to hear, a whistle sound or a bell rung, but did not, and they believe no such signal was given.

From the entire evidence, we are clearly of opinion the train was behind time, and was running at a very high rate of speed when the accident occurred; and there seems to be no doubt the view of the approaching train was obstructed by the house, brush and weeds, until a person was almost on the track; and the evidence was conflicting as to whether the bell was rung or the whistle sounded until the instant the collision occurred. The jury found the signal was not given.

The speed of the train, the fact that it was behind its regular time, and the obstruction to the view by the house, brush and weeds, if not conceded, are established, we think, beyond doubt; and the principal disputed fact is, whether the signal was given. We are satisfied the evidence, as it stands in this record, warranted the jury in reaching the conclusion that it was not given.

The policy of our system of jurisprudence is, that, as the jury system was established and is maintained for the finding of disputed facts at common law, it is the province of the jury to do so, uncontrolled by the court, if the evidence tends to support their finding. It is only by force of our statute that we have power to review their finding, and, under long established practice, we will not, unless compelled from the want of evidence, or its too manifest weakness and insufficiency to sustain the finding, reverse because the finding is against the evidence. Here are three juries who have concurred in finding negligence on the part of appellant. If there was any inherent weakness in the evidence, we could hardly presume that such a number of ordinarily intelligent men would all have failed to detect it. Even if it appeared to us to be slight, still that does not require a reversal. We will not lightly disturb the finding of a jury, whose province it is to find facts, and the circuit judge who heard the evidence and approved the finding by refusing to set aside the verdict. Hence, we must refuse to set aside the verdict because it is not sustained by the evidence.

There is no error in the instructions. They announce the law correctly, and this leaves it purely a question of fact for the determination of the jury, and we must decline to interfere.

We find the law clearly and well stated in the case of The Continental Improvement Co. v. Stead, U. S. Supreme Court, 5 Otto, 161. It was said: “If a railroad crosses a common road on the same level, those traveling on either have a legal right to pass over the point of crossing, and to require due care of those traveling on the other to avoid a collision. Of course, those mutual rights have respect to other relative rights subsisting between the parties. From the character and momentum of a railroad train, and the requirements of public travel by means thereof, it can not be expected that it shall stop and give precedence to an approaching wagon to make the crossing first. It is the duty of the wagon to wait for the train. The train has the precedence and right of way, but it is bound to give due warning of its approach, so that the wagon may stop and allow it to pass, and to use every exertion to stop if the wagon is inevitably in the way. Such warning must be reasonable and timely, but what is reasonable and timely warning may depend on many circumstances. It can not be such, if the speed of the train be so great as to render it unavailing. * * * The speed of a train at a crossing should not be so great as to render unavailing the warning of its whistle and bell; and this caution is especially applicable when the sound is obstructed by winds and other noises, and when intervening objects prevent those who are approaching the railroad from seeing a coming train. In such cases, if an unslackened speed is desirable, watchmen should be stationed at the crossing.

We think the judge was perfectly right, therefore, in holding that the obligations, rights and duties of railroads and travelers upon intersecting highways are mutual and reciprocal, and that no greater degree of care is required of the one than of the other; for, conceding that the railroad train has the right of precedence of crossing, the parties are still on equal terms as to the exercise of care and diligence in regard to their relative duties. The right of precedence referred to does not impose upon the wagon the whole duty of avoiding a collision. It is accompanied with, and conditioned upon, the duty of the train to give due and timely warning of approach. The duty of the wagon to yield precedence is predicated upon this condition, and both parties are charged with the mutual duty of keeping a careful lookout for danger.”

And in the same case the court below was asked to instruct for the company, that “the undisputed testimony in the case shows that the plaintiff was acquainted with the character of the crossing; that he had frequently traveled it, and, on some previous occasions, had stopped to look and listen before going on the track; that upon this occasion he went with his team and wagon on the track without taking any precaution to ascertain whether a train was coming from the north...