Ill. Cent. R.R. Co. v. Middlesworth

• Decision Date: 31 January 1868
• Citation: 46 Ill. 494,1868 WL 7337
• Parties: ILLINOIS CENTRAL RAILROAD COMPANYv.ABRAM MIDDLESWORTH.
• Court: Illinois Supreme Court

46 Ill. 494

1868 WL 7337 (Ill.)

ILLINOIS CENTRAL RAILROAD COMPANY

v.ABRAM MIDDLESWORTH.

Supreme Court of Illinois.

January Term, 1868.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Shelby county; the Hon. A. J. GALLAGHER, Judge, presiding.

The opinion states the case.

Mr. CHARLES EMERSON, for the appellants.

Messrs. MOULTON & CHAFFEE, for the appellee.

Mr. CHIEF JUSTICE BREESE delivered the opinion of the Court:

This was an action on the case for negligence in so running the railroad train of appellants, that twenty-one mules of appellee were killed. There were a verdict and judgment for the plaintiff, a new trial having been refused. The points made here are, that the verdict was against the evidence and should have been set aside, and a new trial granted, and that certain instructions given for the plaintiff were improper, and one asked by the defendants and refused, should have been given.

We have examined the evidence with great care, as it appears in the bill of exceptions, and are satisfied it supports the charge of great negligence, even to recklessness on the part of the employees of the appellants. The weight of the evidence is strong to the point, that it was in the power of the driver of the engine, by the exercise of ordinary care, to have seen such a number of mules in time to have stopped the train before they were reached. With a good head light properly trimmed, and luminous, on a straight road, it is impossible, if he was not asleep, which these drivers sometimes are, when on duty, and on the usual look-out, that he should not have seen them. Even if he had other duties to perform,-- such as attending to the pumps or other parts of the machine, he has always time to make such observations, and provide against accidents. It is not unfrequent, and it has been charged against these drivers, that they, intentionally, rush their machines into a crowd of animals, with no other thought but to see how many they can kill, like a sportsman shooting into a flock of quails, and boast of their skill afterwards; and that they are sometimes asleep at their posts, is an asserted fact. A spirit of recklessness seems to have been engendered among them, resulting not only in loss to the companies employing them, but in life and property, to a fearful extent. We are not to suggest a corrective, but it would seem, by the united action of these most powerful and necessary corporations, some system might be devised by which none but the most careful men should receive employment from them in such responsible positions, a prompt discharge immediately following exhibition of negligence. It may be said, these corporations must take men as they find them, and none are perfect; yet, there is a vast difference in the qualities of men engaged in the same pursuit, and all proper means should be used to provide the best. There is always a choice, and it ought to be incumbent on railroad companies to make the best choice, without regard to compensation, of men, to whom the public are obliged to entrust their property and lives and all that is dear to them.

It is in vain to say, in the face of the testimony in this record, that a careful driver, on the look-out, could not see a gang of mules on a level, when there was no curve in the road, and stop the train in time, although it was running at the rate of thirty miles an hour. With the patent brake now in general use a passenger train, as this was, running at the rate of thirty or forty miles an hour, can be “broke up” and brought to a stop in one hundred and fifty or one hundred and seventy-five yards, and such a crowd of animals can be seen much farther than that.

This, the driver of appellant's engine could have done, but he chose rather, to run recklessly into the herd, regardless of consequences. The proof shows, as we understand it, that the mules were on the track near the culvert; that the engine driver saw them before he reached the culvert, and whistled to frighten them from the track; that they ran north on the road into the cut, two of them having been overtaken and killed before the train reached the cut, and that the others were killed in the cut and along the track to the road crossing north of the cut. The train could have been stopped before the cut was reached, if not before the two mules were killed. This is evident. There was culpable negligence in omitting so to do.

But it is said appellee was also negligent, and his negligence contributed to the injury. This cannot be denied; he was incautious in penning...