Chicago v. Mcgaha

• Decision Date: 31 December 1885
• Citation: 19 Ill.App. 342,19 Bradw. 342
• Court: United States Appellate Court of Illinois
• Parties: CHICAGO, BURLINGTON & QUINCY RAILROAD CO.v.ABIGAIL MCGAHA.

19 Ill.App. 342

19 Bradw. 342

CHICAGO, BURLINGTON & QUINCY RAILROAD CO.

v.ABIGAIL MCGAHA.

Appellate Court of Illinois, Second District.

December Term, 1885.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Knox county; the Hon. A. A. SMITH, Judge, presiding. Opinion filed December 4, 1885.

Messrs. WILLIAMS & LAWRENCE and Mr. O. F. PRICE, for appellant.

Mr. A. M. BROWN, for appellee.WELCH, J.

This is one of those actions, now so frequent, for injuries caused by negligence, in which the principal questions are whether there was ordinary care used by the plaintiff, and whether the defendant was guilty of gross negligence.

The plaintiff in her declaration alleges in the first count that she was driving along a highway, using due care. That defendant's servants so carelessly ran a locomotive engine and train, in not ringing a bell or blowing a whistle, that said locomotive ran so close upon the plaintiff's horse that it became frightened and whirled round upsetting her carriage and injuring plaintiff.

The second count alleges that defendant owned a certain right of way, and was so negligent in allowing trees and brush and weeds to grow thereon as to prevent persons, using ordinary diligence, from discovering the approach of trains; by means whereof an engine ran near plaintiff when on the highway and frightened her horse so that he suddenly whirled and threw plaintiff out of the carriage, to her great injury. There was also a count alleging general negligence upon the part of the defendant. Plea of not guilty. Trial and verdict for plaintiff for the sum of $750. Motion for new trial--motion overruled and judgment, from which this appeal is taken. It is insisted upon the part of the appellants that there was a want of ordinary care on the part of the appellee, in the manner in which she approached the crossing; while on the other hand it is insisted that there was no want of ordinary care on the part of appellee, but that there was gross negligence on the part of appellant in not ringing a bell or sounding a whistle, and in allowing trees, brush and weeds to be standing and growing on its right of way, so as to hinder and prevent persons, using ordinary care, from discovering the approach of trains, etc.

In the case of the Galena & Chicago Union R. R. Co. v. Dill, 22 Ill. 264, Justice Walker says: “The question of negligence is one of fact which must be left to the determination of the jury. It depends to so great an extent upon the surrounding circumstances of each case that unless it is gross no rule can be adopted. The jury must necessarily determine, from the situation of the parties and all of the surrounding circumstances, whether there has been negligence on either part, or whether the occurrence was purely accidental and without the fault of either party. On the part of the appellee it was shown that the horse was gentle; that within a few rods as she approached the crossing she stopped, looked and listened, to hear and see if there was an approaching train, and that not hearing or seeing any she started to cross the track, and that when within a few feet of the track the train dashed by, her horse was frightened, and suddenly turning upset the buggy, threw her out and seriously injured her; that there was a curve in the road, which makes it dangerous for one coming from the south; that there were weeds some eight feet high between the hedge fence and the track, which together with the hedge fence obstructed the view of one coming from the south, the direction from which appellee was coming; that no bell was rung or whistle blown. The only precautions she could take were to look and listen. She stopped her buggy within a few rods of the crossing, looked and listened for an approaching train and...