Garland v. Chicago

• Decision Date: 31 March 1881
• Citation: 8 Ill.App. 571,8 Bradw. 571
• Parties: JULIETTE E. GARLANDv.CHICAGO AND NORTHWESTERN RAILWAY COMPANY.
• Court: United States Appellate Court of Illinois

8 Ill.App. 571

8 Bradw. 571

JULIETTE E. GARLAND

v.CHICAGO AND NORTHWESTERN RAILWAY COMPANY.

Appellate Court of Illinois, First District.

March Term, 1881.

OPINION TEXT STARTS HERE

APPEAL from the Superior Court of Cook county; the Hon. JOSEPH E. GARY, Judge, presiding. Opinion filed June 14, 1881.

This was an action on the case, brought by Juliette E. Garland against the Chicago and Northwestern Railway Company, to recover damages for a personal injnry to the plaintiff, caused as it is claimed, by the negligence of the defendant. On the trial in the court below, the jury found the defendant not guilty, and the defendant had judgment for costs. The facts as they were developed at the trial, were briefly as follows:

On the 15th day of August, 1879, the plaintiff, while riding with her husband across the defendant's railway track where it crosses Lee street, in the village of Desplaines, Cook county, was struck by one of the defendant's engines, and received the injury complained of. Desplaines is a village containing from 1,000 to 1,200 inhabitants, and the defendant's railway track runs through the center of the village in a southeasterly and northwesterly direction, crossing Lee street at right angles. The Lee street crossing is three hundred feet westerly from the passenger station, and from a point several hundred feet east of the station to a point a considerable distance west of Lee street; there are two side-tracks running along the southerly side of the main track, the spaces between these several tracks being about nine feet each. The defendant's right-of-way at the point in question is two hundred feet wide; and running along the southerly side of and adjoining the right-of-way is a street fifty feet wide, crossing Lee street; and on the southerly side of this street, and about one hundred and thirty feet east of the corner of Lee street, is the post-office.

At the time of the injury, the middle track west of Lee street was occupied by a freight train headed west, the rear car or caboose standing partly or entirely within the boundaries of the street, but west of the usual line of travel. On the southerly side-track east of Lee street, there were standing five or six freight cars, the westerly car being some ten feet east of the line of the street, and on the middle track about opposite the passenger station was standing an excursion passenger train. About ninety rods easterly from Lee street the maintrack crosses the Desplaines river by a bridge, and a point immediately in front of the post office commands a view of the track in an easterly direction, with occasional intervening obstructions to a considerable distance beyond the bridge.

The plaintiff and her husband had resided about one mile from Desplaines for about nine years prior to the injury, and both were familiar with the tracks and crossing. On the day in question, they rode to the village in a covered market-wagon accompanied by a young lady, a niece of theirs, and at about five o'clock in the afternoon they drove up to the post office, where the plaintiff alighted, her husband and the young lady remaining in the wagon. Presently she returned and got into the wagon, she and her husband occupying the front seat, with the niece sitting behind them, and they then started towards the Lee street crossing on their way home, the husband driving the horse.

The train which caused the injury was the passenger train running from Chicago to Geneva Lake, Wis., and which did not ordinarily stop at Desplaines. The plaintiff testifies that while she was standing on the steps of the post-office, and before getting into the wagon, she looked along the track in an easterly direction to see if a train was coming, and saw none, and that while passing towards the crossing she continued to listen but heard no sound of an approaching train. Her husband also testifies, though in a manner much less definite and satisfactory, that he both looked and listened for trains, but saw and heard none. The niece, who sat so far back in the wagon that she could see out only in front, testifies that she heard a rumbling sound which seemed to her like the cars, but does not remember saying anything about it. After leaving the postoffice, the plaintiff's husband drove towards the crossing, and without pausing or stopping to listen, and without looking any farther for an approaching train, crossed the first and second side-track, and drove directly on to the main track, where they were struck by the engine of the passenger train, and all three thrown out and severely injured.

There is some evidence, mostly of a negative character, tending to show that no bell was rung or whistle sounded as the engine approached the crossing in question; but a large number of witnesses, including the engineer and fireman in charge of the engine, and various persons who were in the vicinity and in such position as to be able to hear, testify positively that a bell was rung and whistle sounded. There is some conflict in the evidence as to the rate of speed at which the plaintiff's husband drove from the post-office to the crossing. His testimony is that his horse was walking, while three witnesses, Fanny Grey, the niece who was riding with him in the wagon, Leonard Quail, a brakeman on the train who happened to be looking out of a window of the rear coach just as the horse was crossing the side-track, and John Thompson, a resident of Desplaines, who at the time was passing near the place of the accident, testify that the horse at the time of the collision was being driven on a trot. Some question is also made as to the speed at which the train was running. The plaintiff insists, chiefly from calculations based upon the time usually occupied by the train in making the trip from Chicago to Geneva Lake, that it must have been running at the rate of forty miles per hour, while the engineer swears that he applied the air-brake and reduced the speed to not exceeding twenty-five miles per hour.

The engineer testifies, and in this he is not contradicted, that he was at his post on the right-hand side of the engine, looking out in front, but that the horse, approaching as he did from the left-hand, did not come within his view until the instant of the collision, and that after he saw the horse it was impossible by any means he had at command, to avoid the collision. The remaining facts are sufficiently stated in the opinion of the court.

Mr. B. C. COOK and Mr. A. M. HERRINGTON, for appellee, upon petition for rehearing; that the negligence of the party in charge of the team was the negligence of those in company with him, cited L. S. &. M. S. R'y Co. v. Miller, 25 Mich. 275; Railway Co. v. Hart, 87 Ill. 529.

Nothing can relieve a person from the duty of exercising due care in crossing a railway track: Railway Co. v. Jones, 76 Ill. 311; T. W. & W. R. R. Co. v. McGinnis, 71 Ill. 346; Ill. Cent. R. R. Co. v. Hetherington, 83 Ill. 510; Ill. Cent. R. R. Co. v. Godfrey, 71 Ill. 500; C. &. R. I. R. R. Co. v. Still, 19 Ill. 500; C. & N. W. R'y Co. v. Sweeney, 52 Ill. 325; Peoria Bridge Asso'n v. Loomis, 20 Ill. 236; St. L. A. & T. H. R. R. Co. v. Manly, 58 Ill. 300; Bellefontaine R. R. Co. v. Hunter, 33 Ind. 364.

Where plaintiff is guilty of negligence a recovery cannot be had unless the conduct of the defendant was such as showed a reckless disregard of the safety of the public, or an intent or willingness to cause the injury complained of: C. R. I. & P. R. R. Co. v. Houston, 95 U. S. 697; T. W. & W. Ry. Co. v. McGinnis, 71 Ill. 346; Ill. Cent. R. R Co. v. Hetherington, 83 Ill. 510; Ill. Cent. R. R. Co. v. Godfrey, 71 Ill. 500.

If the use of his senses would apprise a person about to cross a railroad track, of danger, he is bound to use them, and no circumstance will excuse him for not doing so: C. & N. W. R'y Co. v. Hatch, 79 Ill. 137; C. B. & Q. R. R. Co. v. Damerell, 81 Ill. 450; Ill. C. R. R. Co. v. Goddard, 72 Ill. 567; C. R. I. & P. R. R. Co. v. Mc Keen, 40 Ill. 218; Gorton v. Erie R'y Co. 45 N. Y. 660; Havens v. Erie. R'y Co. 41 N. Y. 296; Bellefontaine R'y. Co. v. Hunter, 33 Ind. 364; Penn. R. R. Co. v. Beale, 73 Penn. St. R. 509; C. R. I. & P. R. R. Co. v. Houston, 95 U. S. 697; Harlan v. St. L. K. & N. R'y Co. 64 Mo. 482.

Error in instructions will not always reverse: Hardy v. Keeler, 56 Ill. 152; T. P. & W. R. R. Co. v. Ingraham, 58 Ill. 120; Graves v. Shoefelt, 60 Ill. 462; C. B. & Q. R. R. v. Dickson, 63 Ill. 151; Daily v. Daily, 64 Ill. 329; Burling v. Ill. Central R. R. 85 Ill. 20; Gilchrist v. Gilchrist, 76 Ill. 281; Lodge v. Gatz, 76 Ill. 272; St. L. A. & T. H. R. R. Co. v. Funk, 85 Ill. 460.

It was the duty of the driver to stop before attempting to cross: Penn. R. R. Co. v. Beale, 73 Pa. St. 509; N. Penn. R. R. Co. v. Heilman, 13 Wright, 68; C. & N. W. R. R. Co. v. Hatch, 79 Ill. 137; Reeves v. R'y Co. 6 Casey, 464; R. R. Co. v. Damarell, 81 Ill. 450; Railroad Co. v. Jacobs, 63 Ill. 178.

Messrs. MILLER & FROST, and Mr. H. L. LEWIS, for appellant; upon the doctrine of comparative negligence, cited C. & N. W. Ry. Co. v. Sweeney, 52 Ill. 325; C. B. & Q. R. R. Co. v. Payne, 49 Ill. 499; C. & A. R. R. Go. v. Gretzner, 46 Ill. 74; C. & A. R. R. Co. v. Gregory, 58 Ill. 226; C. B. & Q. R. R. Co. v. Lee, 87 Ill. 450.

Running a train at a high rate of speed through a village, is in itself negligence: T. W. & W. R. R. Co. v. Miller, 76 Ill. 278; C. H. & R. R. R. Co. v. Becker, 84 Ill. 484; C. & A. R. R. Co. v. Engel, 84 Ill. 398; P. P. & J. R. R. Co. v. Siltman, 88 Ill. 532; Wabash R. R. Co. v. Henks, 91 Ill. 413; Continental Ins. Co. v. Stead, 5 Otto, 161.

Omitting to give signals upon the approach to a crosssing, is negligence: St. L. V. & T. H. R. R. Co. v. Dunn, 78 Ill. 197; Dimick v. C. & N. W. R. R. Co. 80 Ill. 338; C. & A. R. R. R. Co. v. Elmore, 67 Ill. 176; Snyder v. Pittsburg R. R. Co. 11 W. Va. 14.

Instructions not based on evidence should not be given. The evidence should be fairly...