Fowler v. Chicago & E.I.R. Co.

• Decision Date: 18 June 1908
• Court: Illinois Supreme Court
• Parties: FOWLER v. CHICAGO & E. I. R. CO.

234 Ill. 619

85 N.E. 298

FOWLER

v.CHICAGO & E. I. R. CO.

Supreme Court of Illinois.

June 18, 1908.

Appeal from Appellate Court, First District, on Appeal from City Court, Chicago Heights; Homer Abbott, Judge.

Action by Henry Ades Fowler, administrator, against the Chicago & Eastern Illinois Railroad Company. From a judgment of the Appellate Court affirming a judgment for plaintiff, defendant appeals. Reversed.Calhoun, Lyford & Sheean (E. H. Seneff, of counsel), for appellant.

B. J. Wellman, for appellee.

This is an appeal by the Chicago & Eastern Illinois Railroad Company from a judgment of the Appellate Court for the First District affirming a judgment for the sum of $4,500 recovered by Henry Ades Fowler, administrator of the estate of Cordie L. Wall, deceased, the appellee, against appellant, in the city court of Chicago Heights, in an action on the case for damages for personal injuries alleged to have been caused through the negligence of appellant, resulting in the death of appellee's intestate. At the time of his death the deceased was 12 years of age, and left surviving him his parents, with whom he resided, three brothers, and one sister.

During the forenoon of February 1, 1906, deceased was run over and killed by a train of cars attached to a switch engine in charge of a switching crew in the employ of the appellant while he was attempting to cross the tracks of that company over Twenty-Sixth street, in the city of Chicago Heights. The train that struck the deceased consisted of an engine and three box freight cars, and at the time of the accident it was being backed north, with the cars north of the engine, over appellant's south-bound track, which ran parallel to and immediately west of its north-bound track. Immediately west of the south-bound track were three storage tracks belonging to appellant, the nearest of which was about eight feet away from the south-bound track. The tracks ran north and south and crossed the street at right angles. At the time the boy was killed these storage tracks were filled with cars extending south from Twenty-Sixth street for several blocks, which obstructed his view of the approaching train until he had passed the cars on the east storage track. The string of cars on the east storage track extended north of the south line of Twenty-Sixth street almost to the center of that street, which was 60 feet in width. When the accident occurred, the deceased was going east, and had just passed the north end of this string of cars. He was moving at a ‘dog trot,’ and was going to his home, which was just east of the tracks. After he had passed the cars on the east storage track, he could have seen the train coming from the south had he looked in that direction, but apparently he did not see that train, and just as he was stepping over the west rail of the south-bound track, with his face turned to the north or northeast, he was struck by the train moving north on the south-bound track, and killed. At the close of all the evidence the court denied appellant's motion for a peremptory instruction. The declaration charged appellant with negligence in the operation of its train; in failing to sound a whistle or ring a bell, as required by statute; and in permitting freight cars to stand in Twenty-Sixth street, thereby obstructing the boy's view of the approaching train. It is insisted here by appellant (1) the trial court erred in refusing to direct a verdict in its favor; (2) the court erred in passing on instructions.

SCOTT J. (after stating the facts as above).

In arguing that the court should have directed a verdict, appellant concedes that there is evidence in the record tending to show negligence charged by the declaration, but it is insisted that there is no evidence tending to show that the deceased was in the exercise of ordinary care for his personal safety at and immediately preceding the time of the accident. This contention is based upon the fact that it does not appear that the boy looked to the south before going upon the track upon which he was injured, and upon the fact that had he so looked to the south when he was crossing the space, six or seven feet in width, immediately west of the west rail of the track on which the accident occurred, he could have seen the approaching train and avoided injury. The boy lived with his parents in a house on Twenty-Sixth street, just east of this crossing, and he was going towards his home at the time of the accident. The evidence shows that he frequently ran errands for grocers in the city of Chicago Heights, and that this crossing was between his home and the business part of the town. It is apparent that he must have been familiar with this crossing, and, to some extent at least, familiar with the manner in which trains were operated over it. The track upon which he was injured was a track ordinarily used for south-bound traffic. He came upon the track from such a direction and with his head so turned that he could readily have seen, and avoided injury from, a south-bound train. The train that struck him was coming from a direction from which a train would not ordinarily be expected to come. Under these circumstances we think the question whether or not he was guilty of contributory negligence in passing upon that track was one for the jury, even though the evidence does not show whether he looked to the south before going upon that track. We consider the case a...