Illinois Cent. R. Co. v. Leiner

• Decision Date: 24 April 1903
• Citation: 67 N.E. 398,202 Ill. 624
• Parties: ILLINOIS CENT. R. CO. v. LEINER
• Court: Illinois Supreme Court

202 Ill. 624

67 N.E. 398

ILLINOIS CENT. R. CO.

v.LEINER ^*

Supreme Court of Illinois.

April 24, 1903.

Appeal from Appellate Court, Fourth District.

Action by Henry J. Leiner, as administrator of William A. Wing, against the Illinois Central Railroad Company. From a judgment of the Appellate Court (103 Ill. App. 438) affirming a judgment for plaintiff, defendant appeals. Affirmed.

This is an action on the case, brought against appellant to recover damages for the death of appellee's intestate, William A. Wing, which occurred January 12, 1901, in a rear-end collision in the city of Belleville, St. Clair county, Ill., while said William A. Wing was riding in the caboose of a certain freight train of said defendant. The case was tried by the court and a jury, who returned a verdict for the plaintiff below for the sum of $5,000. Judgment was rendered upon the verdict, after overruling motions for new trial and in arrest of judgment. The case was taken by appeal to the Appellate Court, where the judgment has been affirmed. The present appeal is prosecuted from such judgment of affirmance. At the close of all the evidence the defendant asked the court to give the jury a written instruction finding the defendant not guilty. This instruction was refused.

Kramer, Creighton & Shaeffer (John G. Drennan, of counsel), for appellant.

M. W. Borders, for appellee.

MAGRUDER, C. J.

Upon the trial of this case no instructions were asked by the appellee. The appellant presented to the trial court 23 instructions to be given to the jury, of which 12 were given as asked, and 11 were refused. No complaint is made as to the action of the trial court in the admission or exclusion of evidence. Substantially the only question in the case is that which arises from the refusal of the trial court to instruct the jury to find for the defendant. Nearly all the instructions asked by the appellant, and given in its behalf, left it to the jury to determine whether the servants of the appellant in charge of the trains which collided, or any of them, were at the time guilty of such willful and wanton misconduct as directly contributed to the death of appellee's intestate, William A. Wing. The only material question, therefore, is whether there is sufficient evidence in the record tending to prove such wantonness or willfulness. That question has been settled in favor of appellee by the judgments of the lower courts. As, however, appellant claims that the evidence does not tend to show that the injury which resulted in Wing's death was wantonly and willfully inflicted, the evidence will be examined so far as it bears upon that proposition.

1. Appellant claims that, at the time deceased lost his life, he was a trespasser upon the freight train upon which he was riding. The deceased was an employ´ploye of the appellant as a conductor upon one of its freight trains, but, as we understand the evidence, on the evening of Saturday, January 11, 1901, he had brought his freight train to East St. Louis, and was there released from his work, so that he was entitled to go to his home at Sparta to spend Sunday. In order to reach Sparta, it was necessary for him to ride upon one of appellant's trains from East St. Louis to Coulterville, passing through Belleville. Belleville is 13 miles southeast from East St. Louis. On the evening of January 11th the deceased obtained from the proper officials at Carbondale, by telegraph, a telegraphic pass, permitting him to ride on a certain passenger train (No. 203), which was to leave East St. Louis at 9:04 p. m. that evening. The pass did not reach him until 8:58, about 6 minutes before the passenger train was to start. As we understand the proof, it was necessary for him to walk some 500 feet to reach the passenger train from the place where he obtained his pass, and it is quite evident that he missed the train from lack of time to reach it. He then made application to the conductor of freight train No. 255 for transportation on that train to Coulterville through Belleville. He stated to the conductor that transportation had been furnished to him, and the conductor permitted him to go upon the train, and told him to enter the caboose and go to bed, and he would wake him up when they reached Coulterville. The conductor did not require him to exhibit his pass, or any evidence of his right to travel upon the freight train. Freight train No. 255 consisted of 30 cars drawn by one engine, with a caboose at the end of the train. Although this train was to leave East St. Louis at 10 o'clock, it did not actually get started until 12:40; and although it ordinarily took only 1 hour to go from East St. Louis to Belleville, being a distance of only 13 miles, yet the train did not reach Belleville until 3.20 on the morning of January 12, 1901. It consumed 2 hours and [202 Ill. 627]40 minutes in making the journey from East St. Louis to Belleville. The delay was caused by the inability of the engine to haul the 30 cars to the top of the elevation near the western limits of the city of Belleville. The conductor was obliged to divide his train, and take each half up the hill separately. In addition to this, it was necessary to detach the engine and go to Belleville and get water and return. The deceased went to sleep in the caboose before train No. 255 left East St. Louis, and was asleep in the caboose when the train arrived at Belleville. By the terms of some rule of the company, as is claimed by the appellant, freight train No. 255 carried no passengers, though no such rule was produced in evidence.

It is claimed that the deceased was a trespasser, upon the alleged ground that, although he was an employé of the company-though not then engaged in the work of the company-and although the company was then indebted to him in the sum of $100 for services performed by him, yet that he had not become a passenger, while riding upon this freight train, which was not authorized to carry passengers, notwithstanding the fact that he was riding with the consent of the conductor. In other words, the beceased is alleged to have been a trespasser, because he was riding on a freight train in violation of a rule of the company. We do not deem it necessary to stop to discuss the question whether he was a trespasser, or not, because of the facts thus stated. If he was, the appellant would be liable if he was killed through the wanton or reckless conduct of the appellant's employés in charge of the trains.

In Toledo, Wabash & Western Railway Co. v. Beggs, 85 Ill. 80, we said (page 84): ‘Was defendant in error a passenger on this train, in the true sense of that term? He was traveling on a free pass issued to one James Short, and not transferable, and passed himself as the person named in the pass. By his fraud he was riding on the car. Undersuch circumstances, the company could only be held liable for gross negligence, which would amount to willful injury.’ We have discovered nothing in the conduct of the deceased, as developed by the testimony in this regard, to indicate that he was guilty of any fraud against appellant, or practiced any deceit upon the conductor of freight train No. 255. But even if he had been guilty of such fraud, the appellant would be liable in this action if it was guilty of such gross negligence as amounted to willful injury. See, also, Chicago & Northwestern Railway Co. v. Chapman, 133 Ill. 96, 24 N. E. 417,8 L. R. A. 508, 23 Am. St. Rep. 587. In the cases of Toledo, Wabash & Western Railway Co. v. Brooks, 81 Ill. 245, and Cleveland, Cincinnati, Chicago & St. Louis Railway Co. v. Best, 169 Ill. 301, 48 N. E. 684, no question of wantonness or recklessness is involved or raised in the pleadings.

The view thus expressed was embodied by the appellant in several of the instructions asked by it, and given in its behalf by the trial court. One of those instructions was as follows: ‘The court instructs the jury that enen if you believe from the evidence in this case that Ring, the rear brakeman on train No. 255, should have flagged the extra train that was following the train at the time said train No. 255 was standing at the depot in the city of Belleville, yet, unless you further believe from the evidence in this case that such failure to flag the said extra train upon the part of said Ring amounted to willful and wanton misconduct on his part, plaintiff would not be entitled to recover in this case, if you further believe from the evidence that the said W. A. Wing had no right to be upon said train at the time he received his fatal injuries.’ Another of said instructions given for the appellant was as follows: ‘The court instructs the jury that if you believe from the evidence in this case that W. A. Wing, the deceased, had no right to be upon the train No. 255, and had no right to ride on said train from East St. Louis to Bellevilleat the time in question, then, under the law, he was a trespasser upon said train, and the defendant in this case is not liable for an injury occurring to said W. A. Wing while upon said train, unless such injury was the result of the willful and wanton misconduct of the servants of the defendant.’

Second. Whether, therefore, the deceased was a trespasser or not, the question remains whether there is evidence tending to show that he was killed through the wanton or reckless conduct of the appellant's employés who were in charge of the trains whose collision caused his death.

The question whether a personal injury has been inflicted by willful or wanton conduct or gross negligence is a question of fact to be determined by the jury. In Chicago, Burlington & Quincy Railroad Co. v. Murowski, 179 Ill. 77, 53 N. E. 572, we said (page 80, 179 Ill., and page 573, 53 N. E.): ‘Whether the defendant was guilty of willful or wanton conduct or gross negligence was purely a question of fact for the jury to determine from all the evidence, introduced by the respective parties, bearing upon that...