Hecker v. Illinois Cent. R. Co.

• Decision Date: 06 February 1908
• Citation: 231 Ill. 574,83 N.E. 456
• Parties: HECKER v. ILLINOIS CENT. R. CO.
• Court: Illinois Supreme Court

231 Ill. 574

83 N.E. 456

HECKER

v.ILLINOIS CENT. R. CO.

Supreme Court of Illinois.

Dec. 17, 1907.

Rehearing Denied Feb. 6, 1908.

Error to Appellate Court, Second District, on Appeal from Circuit Court, Du Page County; L. C. Ruth, Judge.

Personal injury action by Katie Hecker against the Illinois Central Railroad Company. From a judgment of the Appellate Court for the Second District reversing a judgment for plaintiff, plaintiff brings error. Affirmed.

This is a writ of error to review the judgment of the Appellate Court for the Second District reversing, without remanding, a judgment for $5,000 rendered in favor of the plaintiff in error, against the defendant in error, in an action on the case for a personal injury. The Appellate Court in its judgment found, from the evidence, that the defendant was not guilty of the negligence charged in the declaration. The only question argued, except questions of fact, is whether there was a variance between the third count of the declaration and the evidence introduced in support of it.Knight & Hoyne, Hiram Blaisdell, and Charles H. Wayne (Oliver R. Barrett, of counsel), for plaintiff in error.

D. B. Sherwood and W. S. Kenyon (J. M. Dickinson, of counsel), for defendant in error.

DUNN, J.

The injury of plaintiff in error occurred in Chicago, where Halsted street is crossed by the railroad tracks of the defendant in error and the Chicago & Alton Railroad Company. A train of the latter company ran over and cut off the arm of the plaintiff in error, who alleges that she was placed in a dangerous position and lost her arm by the negligence of the defendant in error. The third count sets out an ordinance of the city of Chicago limiting the rate of speed of passenger trains to 10 miles an hour, but districting the city, and providing that within the first district a greater rate of speed than 20 miles per hour shall be unlawful. It is alleged that the place of the accident is within the first district; that the ordinance provides for the erection and maintenance, at street crossings, of gates and signal bells; and that it is further provided that the section limiting the rate of speed to 10 miles an hour shall remain in force until the gates and appliances above provided for should be constructed and in operation. The count then alleges that there were no such gates or appliances constructed or in operation, and that the defendant in error negligently ran its cars across Halsted street at a rate of speed in excess of 10 miles an hour, viz., 11 miles an hour. It does not allege that the consent of the mayor or commissioner of public works was required to entitle the defendant to avail itself of the provisions of the ordinance in regard to the rate of speed, or that such consent was not obtained, or that the gates, towers, and other erections and appliances constructed were not in accordance with the requirements of the ordinance in all respects. The evidence shows that the gates and tower, with signal bell, had been constructed, and were in operation before the accident, for a period of 6 months or longer, but the operation of the gates had been abandoned, and for 6 months immediately preceding the accident they had not been operated. Under the ordinances as set forth in that count, when the gates and appliances provided for had been constructed and put in operation, the section limiting the rate of speed to 10 miles per hour ceased to be any longer in force, and it would not be revived by the negligence of the defendant in error in failing to operate the gates. The negligence charged in this court being a violation of the section of the ordinance limiting the rate of speed to 10 miles an hour, and the evidence showing that that section was not in force, the court properly excluded all the evidence so far as that count was concerned.

The arguments, except on the question just considered, are directed entirely to questions of fact arising on the evidence. When the Appellate Courts were established, the practice act was amended by providing that the Supreme Court should re-examine cases brought to it by appeal or writ of error as to questions of law only, and that no assignment of error should be allowed calling in question the determination of the inferior or Appellate Courts upon controverted questions of fact in any except certain enumerated cases. Laws 1877, p. 153, § 89. Accordingly this court has not, since the adoption of that amendment, reviewed judgments of the Appellate Court in cases of this character on controverted questions of fact. Wallace v. Goold, 91 Ill. 15;Chicago & Alton Railroad Co. v. Flaherty, 202 Ill. 151, 66 N. E. 1083. By an act passed June 3, 1907 (Laws 1907, p. 444), the practice act was revised, and there were added to the exceptions from the provision that the Supreme Court should reexamine cases as to questions of law only, amongst others, actions at law where the Appellate Court reverses the judgment of the trial court without awarding a trial de novo, as the result, wholly or in part, of finding the facts different from the finding of the trial court, in which cases both the facts and the law shall stand for review in the Supreme Court as in the Appellate Court.

This amendment gives an appeal, on the facts, to the appellee, if judgment goes against him because of the facts, and denies such appeal to the appellant under the same circumstances. In an action of the character of this, if the plaintiff appeals from a judgment against him, and the Appellate Court affirms the judgment, thus finding the facts the same as the trial court, he cannot have...