Ill. Cent. R.R. Co. v. Hutchinson

• Decision Date: 30 June 1868
• Citation: 1868 WL 5009,47 Ill. 408
• Parties: ILLINOIS CENTRAL RAILROAD COMPANYv.ELIZABETH HUTCHINSON, Adm'x, etc.
• Court: Illinois Supreme Court

47 Ill. 408

1868 WL 5009 (Ill.)

ILLINOIS CENTRAL RAILROAD COMPANY

v.ELIZABETH HUTCHINSON, Adm'x, etc.

Supreme Court of Illinois.

June Term, 1868.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Alexander county; the Hon. JOHN OLNEY, Judge, presiding.

The opinion states the case.

Messrs. GREEN & GILBERT, for the appellants.

Messrs. ALLEN & WEBB, for the appellee.

Mr. JUSTICE WALKER delivered the opinion of the Court:

This was an action brought by Elizabeth Hutchinson, administratrix of Alexander Hutchinson, deceased, in the Alexander Circuit Court, against the Illinois Central Railroad Company, to recover compensation for causing the death of her husband, under the act of February 12th, 1853, by neglect, wrongful act or default of the company. The declaration avers that while the company were running their engine on the track along one of the public streets in the city of Cairo, when it was dark, deceased was run over, in crossing the track with due caution and care, in consequence of the neglect of the company to have a head light, to ring a bell or to sound a whistle.

On the trial, the evidence tended to show that deceased had been drinking, but to what extent does not very distinctly appear. Two witnesses testified to his position at the time, or just before, the accident occurred. One says he was sitting on the rail of the track, and the other, on the end of a tie and leaning over the side of the track. There is a difference in the statements of witnesses as to the time of day and the ability of persons to see and hear the train, but he could see the bulk of a man 50 yards, and the engine 150. One says it was getting dark. Another says it was rather inclined to be dark. Another says they were just lighting the lamps on the street when the accident occurred. Witnesses differ as to whether the bell was ringing, but all agree that there was no head light on the engine, nor does it appear that the whistle was being sounded. We make this statement of the main facts of the case, from a large amount of evidence, to show upon what appellants based their fifth instruction, which was refused by the court below, and the refusal of which, is now, among other rulings of the court, assigned for error. It is this:

“If the jury believe, from the evidence, that the deceased, while intoxicated, placed himself, about dark, or in the dusk of the evening, on defendants' track, running along a public street, where defendants' trains were constantly passing and repassing, and so remained there until run over and killed by the passing engine of defendants, then deceased was guilty of such gross negligence that you should find the defendants not guilty; unless you further believe from the evidence that the agent or agents of defendants willfully caused the death of deeeased, or were guilty of such gross neglect on their part as amounts in law to a willful neglect of duty.”

There can be no question that railroad companies, who appropriate streets or other thoroughfares to their own use, and run their tracks along such public passways, must be held to a very high degree of care and diligence. Public safety requires it, and they must be held to strictly observe the duty. In such a street, the entire public have a right to its use. It was created, and it is maintained for that purpose. It is an easment that may be enjoyed alike by the active and vigorous, the old, the infirm, and the young and inexperienced. It is true, the company have subsequently acquired an easement which authorized them to construct the track of their road along this street. But they did not...