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

• Decision Date: 24 October 1905
• Citation: 217 Ill. 500,75 N.E. 515
• Court: Illinois Supreme Court
• Parties: HEWES v. CHICAGO & E. I. R. CO.

217 Ill. 500

75 N.E. 515

HEWES

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

Supreme Court of Illinois.

Oct. 24, 1905.

Appeal from Appellate Court, First District.

Action by Raymond G. Hewes against the Chicago & Eastern Illinois Railroad Company. Judgment for defendant was affirmed by the Appellate Court, and plaintiff appeals. Affirmed.

Brandt & Hoffmann, for appellant.

Calhoun, Lyford & Sheean, for appellee.

HAND, J.

This was an action on the case, commenced in the superior court of Cook county by the appellant against the appellee to recover damages for an injury to his person, alleged to have been sustained on October 11, 1892, in consequence of the negligence of the appellee in constructing a cattle guard so near its tracks that, as the car upon which he was a passenger was passing said cattle guard, his body came in contact with said cattle guard, and he was thrown from the train to and upon the ground. The declaration contained three counts, and the general issue was pleaded. At the close of the plaintiff's evidence the court peremptorily instructed the jury to return a verdict in favor of the defendant, which was done accordingly, and judgment was rendered on the verdict in favor of the defendant. The Appellate Court for the First District, upon appeal, affirmed the judgment of the superior court, and, a certificate of importance having been granted, a further appeal has been prosecuted to this court.

The sole question raised in this court is, does the evidence introduced on behalf of the plaintiff, when taken to be true, together with all legitimate inferences which may be drawn therefrom in favor of the plaintiff, tend to support the cause of action set out in his declaration? The evidence shows that the defendant, at the time of the injury, owned and operated a double-track railroad which ran north and south through Columbia Heights, a suburb of Chicago; that its south-bound trains ran on the west and its north-bound trains upon the east track; that its passenger depot at that place was located upon the east side of the tracks; that about 200 feet north of the depot, between the tracks, a cattle guard 4 1/2 or 5 feet high, in the form of an inverted letter V with the top cut off, was located; and that the east side of the body of a passenger car going south, in passing said cattle guard, would come within 6 inches thereof. At about 7 o'clock on the evening of the injury the plaintiff, who was then 17 1/2 years of age and employed in a piano factory at Chicago Heights, took a south-bound train of defendant at that place to go to his home at Crete. Columbia Heights is about midway between Chicago Heights and Crete. The train upon which he took passage consisted of a passenger, smoker, baggage car, and an engine and tender. He was late, and in company with a companion mounted the rear platform of the rear car of the train. He was smoking, and upon looking into the passenger car through the open door he saw his uncle, who was a minister, and his wife, sitting in the car, and, not desiring to be observed by them with a lighted cigar in his possession, he dodged back, and remained standing upon the platform east of the car door until the engineer commenced to slacken the speed of the train for the stop at Columbia Heights. As the train slackened its speed he stepped down upon the first step, took hold of the handholds with both hands, and swung his...