Dukeman v. Cleveland, C., C. & St. L. Ry. Co.

• Decision Date: 15 December 1908
• Court: Illinois Supreme Court
• Parties: DUKEMAN v. CLEVELAND, C., C. & ST. L. RY. CO.

237 Ill. 104

86 N.E. 712

DUKEMAN

v.CLEVELAND, C., C. & ST. L. RY. CO.

Supreme Court of Illinois.

Dec. 15, 1908.

Appeal from Appellate Court, Third District, on Appeal from Circuit Court, Coles County; E. R. E. Kimbrough, Judge.

Action by James Dukeman, administrator of Cynthia Dukeman, deceased, against the Cleveland, Cincinnati, Chicago & St. Louis Railway Company. From a judgment of the Appellate Court affirming a judgment for plaintiff, defendant appeals. Affirmed.

George B. Gillespie (H. A. Neal, Hamlin, Gillespie & Fitzgerald, and L. J. Hackney, of counsel), for appellant.

J. H. Marshall, for appellee.

VICKERS, J.

This is an action on the case brought by James Dukeman, as administrator of the estate or Cynthia Dukeman, deceased, against the Cleveland, Cincinnati, Chicago & St. Louis Railway Company, for wrongfully causing the death of plaintiff's intestate. The declaration contains four counts. The first alleges careless and improper operation of the train. The second, that the train was running in excess of the limit of the speed ordinance of the city of Charleston. The third is a common-law count upon the operation of the train at a dangerous rate of speed. The fourth charges a failure to ring the bell and blow the whistle for the crossing where the accident occurred. The jury found the defendant guilty, and assessed plaintiff's damages at $1,200. The judgment rendered by the court upon this verdict has been affirmed by the Appellate Court for the Third district. By its further appeal the railroad company brings the record to this court, and insists upon a reversal for the following reasons: First, because the court refused, at the conclusion of all the evidence, to direct a verdict in favor of appellant; second, because the court erred in giving and refusing instructions upon the question of damages, and in holding that appellee was entitled to recover more than nominal value; third, because the court erred in giving, refusing, and modifying instructions upon the question of negligence.

The negligence charged in the second count of the declaration is not controverted. The engineer of appellant's train testifies that the train was running 35 miles an hour at the time of the accident. Another witness, who timed the train with a stop-watch, testifies that the train was running 68 miles an hour. There is no contention on the part of appellant that the speed of the train was within the 10 mile per hour limit fixed by the ordinance of the city of Charleston.

Appellant's contention in support of the error assigned upon the refusal of the court to direct a verdict is limited to the alleged contributory negligence of appellee's intestate. It is not the province of this court to weigh the evidence and determine, as a matter of fact, whether appellee's intestate was guilty of contributory negligence. The affirmance of the judgment of the Appellate Court is conclusive of all controverted questions of fact. The question of contributory negligence only becomes a question of law when the evidence is so clearly insufficient to establish due care that all reasonable minds would reach the conclusion that there was such contributory negligence. Hoehn v. Chicago, Peoria & St. Louis Railway Co., 152 Ill. 223, 38 N. E. 549;Beidler v. Branshaw, 200 Ill. 425, 65 N. E. 1086;Chicago & Eastern Illinois Railroad Co. v. Crose, 214 Ill. 602, 73 N. E. 865,105 Am. St. Rep. 135.

On October 25, 1905, the deceased, Cynthia Dukeman and her husband, George Dukeman, aged, respectively, about 65 and 72 years, were driving north on E street, in the city of Charleston, about 3 o'clock in the afternoon. The appellant's railroad runs east and west, and E street north and south. The evidence tends to show that up to a point within 35 or 40 feet south of the railroad crossing on E street the view to the west along appellant's track was obscured by a coal shed and by a row of peach trees which at that time had not shed their foliage, but further north and nearer the railroad track there was an unobscured view of the railroad track westward for a considerable distance. Clyde Ely, a boy 11 years of age, and the only witness who testifies to having seen the deceased and her husband as they drove along E street before the crossing was reached, testifies that he was playing in a lot on the west of that street, south of the right of way, and that he saw the deceased and her husband as they drove north on that street; that the mules were being driven by the husband of the deceased at a slow trot. He testifies that the deceased and her husband appeared to be reading something which he thought was soap wrappers, as he saw soap on the lap of the deceased. He says that the speed of the mules was not increased as they approached the crossing, and that neither the deceased nor her husband appeared to notice the approach of the train until about the time the train struck the buggy, when he saw the deceased throw up her hands. This witness does not testify that the deceased did not look to see whether the train was approaching. His inference that the deceased was reading is shown to be incorrect by the fact that the deceased was illiterate and unable to read, and James Morris, who sold the deceased some soap 15 or 20 minutes before she was killed, testifies that he wrapped the soap up in wrapping paper that he had no printed matter on it. The evidence does not show that the deceased failed to look or listen for the approach of the train, and, if it did, such failure would not be negligence per se. A failure to look and listen cannot be said to be negligence as a matter of law, since there may be many circumstances excusing such failure. Chicago & North-western Railway Co. v. Hansen, 166 Ill. 623, 46 N. E. 1071;Chicago & Alton Railroad Co. v. Pearson, 184 Ill. 386, 56 N. E. 633;Elgin, Joliet & Eastern Railway Co. v. Lawlor, 229 Ill. 621, 82 N. E. 407. The deceased had a right to presume that appellant would not run its train in violation of the ordinance of the city, and contributory negligence could not be imputed to her for a failure to anticipate that appellant would approach this crossing at a rate of speed prohibited by the ordinance. In connection with the other circumstances surrounding the accident, the natural instinct prompting to the preservation of life and the avoidance of injury, and consequent suffering and pain, may also enter into the consideration of the jury in determining the question of the due care of the deceased. Chicago & Eastern Illinois Railroad Co. v. Beaver, 199 Ill. 34, 65 N. E. 144. We are not prepared to say, as a matter of law, that the deceased was guilty of such contributory negligence as to preclude a recovery. We think this question was properly submitted to the jury as one of fact.

It is next insisted by appellant that the court erred in refusing the following instruction:

‘Nominal damages mean one dollar or one cent, or some such nominal sum, merely sufficient to carry a judgment for costs against the defendant; and in this case you are instructed that there can be no recovery of more than nominal damages, although you may find the issues in favor of the plaintiff.’

The contention of appellant is that there is no evidence of pecuniary damage to the next of kin, and for that reason the court erred in not instructing the jury as...