Hawthorne v. New York Cent. R. Co.
| Decision Date | 10 May 1954 |
| Docket Number | No. 54-F-7,54-F-7 |
| Citation | 119 N.E.2d 516,2 Ill.App.2d 338 |
| Parties | HAWTHORNE v. NEW YORK CENT. R. CO. et al. |
| Court | United States Appellate Court of Illinois |
Frank Bonan, McLeansboro, for appellant.
Kern & Pearce, Carmi, for appellees.
This is an appeal from a judgment of the Circuit Court of White County which followed direction of a verdict in favor of defendants, New York Central Railroad Company, a corporation, and John Franklin, the engineer on the train, and as against Ernest Hawthorne, administrator of the estate of Robert Walter Hawthorne, deceased.
The action arose by reason of a suit filed by the administrator for damages occasioned by the death of Robert Walter Hawthorne, and the loss of the automobile of the deceased. The complaint originally was filed against the railroad and certain employees of the train crew, including the fireman, the conductor, and the engineer. The complaint charged that the defendants had been guilty of negligence, which in essence charged excessive speed, failure to ring a bell at a crossing, failure to blow a whistle at a crossing, and permitting brush and vegetation to grow on the right-of-way to obstruct visibility.
On the trial of the case plaintiff offered evidence as to the location and condition of the crossing. The only evidence on the question of due care of the deceased was established by evidence of reputation of the deceased as to careful habits, on the theory that there were no eyewitnesses. At the close of the evidence by the plaintiff, the defendants filed separate motions, praying dismissal of the three members of the train crew on the basis of the contention that there was no evidence to establish any negligence as to them. The motions as to the fireman, John Robert Williams, and the conductor, were granted, but the motion as to the engineer was denied. After the Court granted the motion dismissing the fireman from the case, the defendant railroad and the defendant engineer tendered the fireman as an eyewitness, and moved that the evidence as to the reputation of the decedent as to careful habits be stricken. The Trial Court hearing the evidence which the fireman proposed to give, in absence of a jury, found him in fact to be an eyewitness and also found that since he had been dismissed from the action he was competent to testify. The Court thereupon granted the motion to exclude the evidence as to reputation for careful habits. Plaintiff refused the tender of the eyewitness and defendants then moved for a directed verdict on the ground there was no evidence to support the allegations in the complaint that plaintiff's intestate was in the exercise of due care and caution for his own safety and the safety of his property. Ruling on such motion was reserved until the close of all the evidence for the defendants, and at that time the Court granted the motion and directed a verdict in favor of the defendants.
On appeal in this Court it is contended by the plaintiff that since the defendants were joint tortfeasors, the Trial Court erred in dismissing certain defendants, and in permitting one of the defendants to testify as an eyewitness, and consequently erred in directing a verdict as against the plaintiff. Defendants, however, contend that while it is permissible for plaintiff to join the train crew and members thereof as defendants, the failure to show any breach of duty or negligence on part of any individual member of the train crew entitles such defendant to a dismissal, and if such dismissal occurred while the trial was proceeding, the defendant then became a competent witness.
In all actions of the character before us it must be alleged and proven that the plaintiff's intestate was in the exercise of due care and caution for his own safety and that of his property at and immediately prior to the time of the accident in question, Prater v. Buell, 366 Ill.App. 533, 535, 84 N.E.2d 676; Follett v. Illinois Central R. Co., 288 Ill. 506, 513, 123 N.E. 592. Testimony relating to the habits of the deceased and tending...
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