Coulter v. Illinois Cent. R. Co.

• Decision Date: 07 October 1914
• Docket Number: No. 9383.,9383.
• Citation: 106 N.E. 258,264 Ill. 414
• Parties: COULTER v. ILLINOIS CENT. R. CO.
• Court: Illinois Supreme Court

264 Ill. 414

106 N.E. 258

COULTER

v.ILLINOIS CENT. R. CO.

No. 9383.

Supreme Court of Illinois.

June 16, 1914.

Rehearing Denied Oct. 7, 1914.

Error to Appellate Court, Third District, on Appeal from Circuit Court, Macon County; Wm. C. Johns, Judge.

Action by Fannie Coulter, administratrix, against the Illinois Central Railroad Company.From a judgment of the Court of Appeals(184 Ill. App. 208), affirming a judgment for plaintiff, defendant brings error.Affirmed.Hugh Crea and Hugh W. Housum, both of Decatur (John G. Drennan, of Chicago, of counsel), for plaintiff in error.

Whitley, Fitzgerald & McLaughlin, of Decatur, for defendant in error.

VICKERS, J.

This case was removed to this court by a certiorari directed to the Appellate Court for the Third district.Defendant in error, as administratrix of her deceased husband's estate, brought an action in the circuit court of Macon county, and recovered a judgment for $10,000 damages for the alleged negligent killing of her husband, James B. Coulter.The Appellate Court for the Third district required a remittitur of $3,000, and affirmed the judgment for $7,000.

Plaintiff in error owned and operated a line of railway through the city of Decatur, with five tracks running north and south across Wood street and one track extending to Wood street.These tracks are described by numbers, from [264 Ill. 416]1 to 6, from the west toward the east.The railroad right of way at Wood street is 200 feet wide.The street car company, by which defendant in error's intestate was employed as a conductor, operated a line of street railway in Wood street.About 8 o'clock in the evening of November 4, 1910, defendant in error's intestate had charge of a street car running west on Wood street.The street car was stopped a short distance before track No. 6 of the Illinois Central railroad was reached.The deceased conductor got off of his car and walked west, crossing tracks Nos. 6, 5, and 4.While he was between tracks Nos. 4 and 3, near the rails of track No. 4, he signaled to the motorman upon the street car to cross the tracks, giving the usual signal to indicate that the crossing was clear.The motorman started the car in obedience to the signal received, and the conductor remained standing near the north rail of the street car line to await the coming of his car.As the street car approached track No. 4 the motorman discovered a string of coal cars on track No. 3 being pushed across Wood street.Not having time to stop his car and avoid a collision, the motorman threw on all of his power for the purpose of trying to get his car over track No. 3 before a collision would occur.The coal cars struck the street car about the third window from its front end, and the impact threw it from the track and pushed it north 25 or 30 feet.The street car was thrown over upon its side and caught defendant in error's intestate under it, and so injured him that he died in a short time thereafter.Neither the motorman nor any of the passengers were injured.The string of cars that collided with the street car consisted of 16 coal cars which were being pushed by an engine on track No. 5.TrackNo. 5 was connected with track No. 3 by a switch a short distance south of Wood street.This explains how the engine was on track No. 5 and a portion of the cut of cars being pushed were on track No. 3.

The original declaration consisted of four counts, and two additional counts were after wards filed, known as the first and second additional counts.The first original count charged that the plaintiff in error negligently and suddenly caused the cars to be backed up at a high and dangerous rate of speed without any warning to defendant in error's intestate or to persons in charge of the street car at said crossing.The second count charged a violation of the statute requiring the railroad company to have a good and sufficient brake attached to the rear or hindmost car of the train, and to have a trusty and skillful brakeman standing upon said car, and to have brakes upon the car efficiently operated by power applied from the locomotive.The jury were instructed to disregard the second count, and, since there are no cross-errors assigned, no further attention need be paid to this count.The third count charged the violation of an ordinance of the city of Decatur, requiring every locomotive engine, railroad car, or train of cars running in the nighttime to have, and keep while so running, a brilliant and conspicuous light upon the front end, and, while backing, a brilliant and conspicuous light on the rear end of such locomotive, car, or train of cars.The negligence set out in the fourth count is the alleged violation of an ordinance of the city of Decatur which provides that a bell shall be constantly rung upon every locomotive engine while the same is in motion in the city of Decatur, and that a locomotive shall not be started without first sounding the whistle or ringing the bell, and that the deceased was injured as a result of the failure to comply with this ordinance.The first additional count charged a violation of the statute in regard to ringing a bell or blowing a whistle within 80 rods of a street crossing, and charged that plaintiff in error did not keep a whistle blowing or a bell ringing, as required by the statute, until the crossing was reached.The second additional count charged that the railroad company suddenly and negligently and without warningswitched and backed the train of cars against said street car at a high and dangerous rate of speed, without having any light or illumination of any kind upon the rear or hindmost car or cars of said train, and without any signal or warning whatever, and that it was a dark, cloudy, and foggy night.

Plaintiff in error insists upon a reversal for the following reasons: (1) Because the court below erred in refusing to direct a verdict for the railroad company on the ground that defendant in error's intestate was guilty of contributory negligence as a matter of law; (2) because the trial court erred in its rulings upon the evidence; (3) because of alleged misconduct upon the part of counsel for defendant in error; and (4) because of errors committed in the giving and refusal of instructions.

[1] The servants of plaintiff in error in charge of the cut of cars were clearly guilty of negligence.The evidence is not disputed that this cut of coal cars was being backed onto the street crossing on a dark, foggy night without any light on the rear car, and without a brakeman thereon.There is no proof that a bell was being rung or whistle sounded.The negligence charged in the declaration is not seriously controverted.

[2][3] The first contention of plaintiff in error is that defendant in error's intestate was guilty of contributory negligence as a matter of law, and that the trial court erred in not directing a verdict for that reason.If we may judge from the amount of space devoted to a discussion of this question in the brief of plaintiff in error as compared to that devoted to other questions, we would be justified in concluding that plaintiff in error regards this as the paramount issue involved.Regarding defendant in error's intestate merely as a traveler crossing the tracks of the railroad company, it could not be seriously contended that his failure to observe the approach of the cut of cars was, under the circumstances, contributory negligence on his part.The evidence shows that the night on which the accident occurred was very dark, misty, and foggy; that there were cars standing on some of the tracks near the crossing, which had a tendency to make the crossing darker than it otherwise would have been; that there were no lights burning at the crossing, except two small lights some distance away at the gasworks, and these did not light the tracks of the railroad to any percentible extent except directly north of the crossing; that there was no light on any of the cars that were being backed.There was a light on both ends of the engine, but the engine was 800 feet away, on track No. 5.There was no signal or warning of any kind given at the crossing.Defendant in error's intestate went onto the railroad tracks at the crossing for the purpose of ascertaining whether the crossing was clear, and it was his duty to use his senses in endeavoring to discover whether there were any cars or train approaching, and it is to be presumed that he discharged this duty; in other words, that he did look in both directions before signaling the motorman to come on.This presumption is strengthened by the evidence, which tends to prove that the conductor looked both north and south before he told the motorman to come on.It could not be reasonably contended that the deceased was guilty of contributory negligence unless he was required to use a higher degree of care than is required of pedestrians in crossing railroad tracks on a public street or highway.Plaintiff in error contends that by reason of special circumstances hereinafter stated the deceased was required to do something more than would be required of an ordinary pedestrian crossing such railroad tracks for his own convenience.

An ordinance was in force in the city of Decatur at the time of...