Illinois Cent. R. Co. v. Scheffner

• Decision Date: 20 April 1904
• Citation: 70 N.E. 619,209 Ill. 9
• Parties: ILLINOIS CENT. R. CO. v. SCHEFFNER.
• Court: Illinois Supreme Court

209 Ill. 9

70 N.E. 619

ILLINOIS CENT. R. CO.

v.SCHEFFNER.

Supreme Court of Illinois.

April 20, 1904.

Appeal from Appellate Court, Second District.

Action by John Scheffner against the Illinois Central Railroad Company. From a judgment of the Appellate Court, affirming a judgment for plaintiff, defendant appeals. Affirmed.J. H. Stearns (Wm. Barge, of counsel), for appellant.

Burchard & Burrell, for appellee.

This is an appeal from the Appellate Court for the Second District, which affirmed a judgment of the circuit court of Stephenson county for $2,000, in favor of appellee, against appellant. The suit was an action of trespass on the case, to recover for a personal injury alleged to have been received on account of negligence of appellant. Upon a trial in the circuit court the jury found for appellee, and assessed his damages at the amount above stated. Motions for a new trial and in arrest of judgment were respectively overruled, after which judgment was rendered upon the verdict in favor of appellee.

It was stipulated by the parties to the suit that the portion of the railroad in question was constructed in 1887 by the Chicago, Madison & Northern Railroad Company, and was leased to appellant in April, 1888.

The appellee received the injuries complained of at a crossing of this railroad and a public highway in Stephenson county on October 5, 1900. The railroad track, which is a single track, runs east and west, and the highway runs north and south. The highway was located on the same line for a number of years prior to the construction of the railroad. When the railroad was built, the company made a cut at this place for its roadbed, and excavated earth for a distance of several hundred feet west of the highway. The testimony shows that this cut varies in depth, being 9.7 feet in depth at the crossing with the highway, and 16.1 feet deep farther west. West of the latter point the cut grows shallower until it comes to grade, and 475 feet west of the crossing is a bridge. At about 550 feet west of the crossing another cut begins, which runs on west about a half mile. The railroad company also excavated the approaches of the highway to the crossing, both north and south of the track, making the track for travel in the highway 14 feet wide, and the distance between the tops of the banks of the cut in the highway 39 feet. Commencing at the crossing, this excavation extends south in the highway for a distance of [209 Ill. 11]200 feet. The cut is about 10 feet deep next the track, and gradually slopes up to the natural level of the earth to the south. A person traveling in an ordinary buggy, emerging from the cut in the highway from the south, cannot see west past the bank until within about 30 feet of the track.

On October 5, 1900, appellee was driving a gentle horse in the highway towards this crossing, coming from the south. When within about 80 rods of the crossing he saw a freight train pass at the crossing, going east. Before entering the cut in the highway he looked east and west twice for smoke from an engine, or other indications of trains, but saw none except the freight train traveling east from the crossing. He entered the cut in the highway and proceeded north, his horse trotting, until his horse's head was within a few feet of the track, when a small car, propelled by a gasoline motor, and called a ‘motor car,’ upon which four officers or employés of appellant were riding, passed in front of him, going east. His horse jumped to the right, pulling the buggy into a small ditch, overturning it, and throwing appellee out on the railroad track, from which he suffered severe injuries.

The platform of the car in question stood 2 feet above the track. The seat extended 18 inches higher. On each corner of the car was a flag about 2 feet long and 20 inches wide-2 of them white and 2 green. When the car crossed the highway these flags were unfurled.

The 4 officers of appellant above referred to testified that when within 50 or 75 feet of the highway the car was stopped, and one of them got upon the seat of the car and looked up and down the highway to see if any one was coming; that this person reported that no one was in sight; that the car was then started, and was going at the rate of about 5 miles an hour when it crossed the highway. The person referred to as having looked for travelers in the highway testified that his height was 5 feet 8 1/2 inches, that the seat of the car on which he stood was 3 feet 6 inches above the track, and that he could see the surface of the highway for a considerable distance south of the cut in the highway, and there was no person in sight thereon at the time he looked.

Appellee testified that he heard no sound, and received no warning of the approach of the car, before his horse jumped to the right, overturning the buggy, and that he did not see the motor car until just before it appeared in front of his horse, on account of the bank along the south side of the track.

At the close of plaintiff's case, and again at the conclusion of all the evidence, appellant moved the court to instruct the jury to find the issues for the defendant, at the same time offering an instruction to that effect. In each instance the court overruled the motion and refused the instruction.

SCOTT, J. (after stating the facts).

The appellant questions the sufficiency of the declaration by a motion in arrest of judgment. The first count in the declaration is, in substance, the same as that approved by this court in Chicago City Railway Co. v. Jennings, 157 Ill. 274, 41 N. E. 629, the only material difference being that in that case it is charged that the negligence resulted in a collision, while here the averment is that the negligence resulted in frightening the horse, as a consequence of which the carriage was overturned, and the plaintiff thrown out and injured. We are unable to perceive any distinction. The question is whether negligence is properly charged. Whether the statement of the negligence be then followed by appropriate language showing that it resulted in a collision or in frightening the horse, and consequent injury to the driver, can make no difference in the legal...