Chicago v. Mclallen

• Decision Date: 30 September 1876
• Citation: 84 Ill. 109,1876 WL 10450
• Parties: CHICAGO, BURLINGTON AND QUINCY RAILROAD CO.v.WILLIAM H. MCLALLEN, Admr. etc.
• Court: Illinois Supreme Court

84 Ill. 109

1876 WL 10450 (Ill.)

CHICAGO, BURLINGTON AND QUINCY RAILROAD CO.

v.WILLIAM H. MCLALLEN, Admr. etc.

Supreme Court of Illinois.

September Term, 1876.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Du Page county; the Hon. H. H. CODY, Judge, presiding.

Messrs. DEXTER & SMITH, and Mr. B. F. PARKS, for the appellant.

Mr. J. C. SHERWIN, and Mr. H. F. VALLETTE, for the appellee.

Mr. JUSTICE DICKEY delivered the opinion of the Court:

This was an action on the case, brought by appellee, against appellant, to recover damages for the benefit of the next of kin of deceased, for the loss of his life in a collision of trains upon appellant's road, which occurred on the 5th of August, 1873.

The declaration alleges, in different counts, and in several forms, that the death of Briggs was caused by the negligence of appellant. Appellant pleaded not guilty. The issue was tried by a jury, and found for appellee, and judgment was rendered against appellant for damages $4500, and for costs.

On the trial, divers exceptions were taken to the rulings of the court on questions relating to the competency of evidence offered. Exceptions were also taken to the rulings of the court, in giving and refusing instructions to the jury, and, after verdict, a motion for a new trial, made by appellant, was overruled, and appellant excepted. All the evidence is preserved in a bill of exceptions taken by appellant.

As a ground for reversing this judgment, it is insisted that it appears from the proofs that Briggs, the deceased, was guilty of negligence, which was the cause of his death, or which contributed to that result to such a degree as to forbid a recovery in this action. That question was fairly submitted to the jury, and they have found the facts against appellant. This finding must not be disturbed, unless it be clearly against the weight of the evidence.

Briggs was a conductor in the employment of appellant, and on that morning was in charge of a freight train of thirty-eight loaded cars, chiefly loaded with cattle. This was not one of the regular trains mentioned on the time card, but was an extra train, commonly called a wild train, such as were run by special orders from the assistant superintendent.

At 4:37 A. M., on the 5th of August, 1873, Briggs, being at Aurora with his train, received an order saying: “Run to Chicago as a wild train. Keep fifteen minutes behind No. 46 until fog rises.” No. 46, mentioned in this order, was a regular freight train mentioned on the time card. By the card, its regular time to leave Aurora was 3:15 A. M., its reglar time to pass Naperville was 4 A. M., and its regular time to pass Downer's Grove was 4:35 A. M. It is nine miles from Aurora to Naperville, and seven and one-half miles from Naperville to Downer's Grove.

At the time Briggs received this order, 4:37 A. M., No. 46 was standing at Aurora, and was then an hour and twenty-two minutes behind time, and started from Aurora at 4:38, an hour and twenty-three minutes behind time. By the printed rules, a freight train may, when behind time, make up lost time, but must in no case run faster than one mile in four minutes, and there is no printed rule requiring a freight train to run faster than is called for by its card time. Briggs, under his order to keep fifteen minutes behind No. 46, had the right to assume that No. 46 would run at the rate of its card time. This would have brought No. 46 to Naperville in forty-five minutes after it left Aurora, that is to say at 5:23, and Briggs, of course, should, by his order, have reached Naperville at 5:38.

On the card was a passenger train due at Aurora at 5:12, and at Naperville at 5:32, and at Downer's Grove at 5:48. Briggs had the right to infer from his order that this passenger train was behind time and would not reach Naperville until after 5:38.

It is true, train No. 46 had the right, if it could, to make up time at speed not exceeding one mile in four minutes, and if it made this maximum speed on every mile, and spent no time at Naperville, it might reach Naperville at 5:14, and Downer's at 5:43. This was possible, but not probable, for there was an upgrade out of Aurora liable to cause a delay of at least two minutes, and an up-grade going east out of Naperville, which usually caused a delay of from three to six minutes. It was not at all probable that train 46 could leave Naperville before 5:16, or reach Downer's before 5:50 to 5:52, and she could not be regarded as behind her time under her order if she had left Naperville at 5:23 and reached Downer's at 5:58.

It must be remembered that Briggs saw No. 46 leave Aurora at 4:38, and had heard nothing from that train since, and had no knowledge of her position, except what he was bound to take notice of from the rules and the time card. He had the right to assume, unless otherwise informed, that No. 46 was making her card time. If this had been so, No. 46 would have left Naperville at 5:23, and if Briggs kept less than fifteen minutes behind No. 46, he did so in violation of orders. He, therefore, could not properly, under his order received at Aurora, leave Naperville until 5:38. At 5:30, or soon thereafter, while at Naperville, he received another order, which ran thus: “Run to Downer's Grove ahead of No. 10.”

To Briggs' mind this order in no manner modified his order to keep fifteen minutes behind No. 46. He had the right to assume that both orders could be obeyed. This last order did modify the printed rule which required him to keep off the track on the time of the passenger train No. 10. By the card, that train was due at Naperville at 5:32, and Briggs had backed in on a side track at that station to let No. 10 go by. This order to run to Downer's Grove ahead of No. 10 implied that No. 10 was behind, and so far behind that Briggs could safely proceed to Downer's, without violating any of his orders, or any of the rules, except those relating to his keeping out of the way of No. 10. He had the right to assume that this required no especial care, for his order indicated none. He had the right to assume that No. 46 had passed Naperville at her card speed, that was at 5:23, and that, hence, in the execution of his last order, he should leave Naperville at 5:38, and reach Downer's Grove at 6:13. He did leave Naperville at 5:38, according to the testimony of Dean, the engineer of his train, and was run into by No. 10 not later than 5:49, at a point only six miles from Downer's Grove, and at a time when he had still 24 minutes to make that point. Upon this view of the case, he was not behind time at all when the collision occurred.

Let us now suppose that it was the duty of Briggs to assume that No. 46, being behind time, would make up lost time at the utmost speed possible under the rules....