Illinois Cent. R. Co. v. Oswald

Decision Date21 February 1930
Docket NumberNo. 19879.,19879.
Citation338 Ill. 270,170 N.E. 247
PartiesILLINOIS CENT. R. CO. v. OSWALD.
CourtIllinois Supreme Court

OPINION TEXT STARTS HERE

Error to Appellate Court, Fourth District, on Appeal from City Court of East St. Louis; William F. Borders, Judge.

Action by Mattie Oswald against the Illinois Central Railroad Company. Judgment for plaintiff was affirmed by the Appellate Court (255 Ill. App. 535), and defendant brings certiorari.

Reversed and remanded.Kramer, Kramer & Campbell and R. E. Costello, all of East St. Louis (Vernon W. Foster and Edward C. Craig, both of Chicago, of counsel), for plaintiff in error.

Louis Beasley and Edward C. Zulley, both of East St. Louis, for defendant in error.

HEARD, J.

This cause is here on certiorari to review the record of the Appellate Court for the Fourth District affirming a judgment of the city court of East St. Louis in favor of defendant in error, Mattie Oswald, against plaintiff in error, the Illinois Central Railroad Company, for $5,000 damages in an action for personal injuries alleged to have been sustained by her by reason of negligence of plaintiff in error.

Near the east end of the Free Bridge, which connects St. Louis and East St. Louis, plaintiff in error has several tracks which pass under the bridge. Between 10 and 11 o'clock at night, on February 11, 1927, defendant in error and her husband were driving east across the bridge when they observed a large volume of dense, black smoke ahead of them. This smoke was coming from one of plaintiff in error's engines. They stopped about 30 feet from the smoke and waited 5 or 10 minutes for it to clear away, when the wind suddenly changed and blew the smoke over them, and about a second later another car came up from the west and struck their car. Thereafter defendant in error got out of the car and went to the rear of it to see what damage, if any, had been done, and, while she was between the two cars, a third car came up and struck the second, forcing it forward. She was caught between the cars and was severely injured.

Defendant in error's version of the happening of the accident, as shown by the abstract of her testimony, is as follows: ‘After our car got struck we got out on the righthand side and stepped out on the sidewalk. I knew there was a sidewalk there. I knew that sidewalk was separate and apart from the traveled roadway. It was black there at that time and I couldn't see anything-couldn't even see the lights on this other car. The condition hadn't changed any when my husband got out of the car-it was still black. Then I walked to the rear of our car, feeling my way as I went along. I walked in between these two cars and couldn't see anything. I knew there were cars traveling along the bridge. I never thought of it. It was done carelessly. I see that now. I did know it at that time although I didn't think of it. I did know that the bridge was traveled a great deal and I walked in between the two cars. I was getting out into the roadway then. I was going around to see how badly the machine was hurt. I was going in between the two cars in the dark. I couldn't see anything. I couldn't see the lights on our car. I didn't think the smoke was going to last all evening. After our car got struck and we got out I couldn't see. I was feeling all the time. I felt until I got to the rear end of our car. I knew there was something in back of me. I couldn't see it. I didn't know what it was. I was going to find out how much damage was done to our car. In order to find out how much damage was done I was going in between these two cars. I was going in there although I knew I couldn't see anything. I intended to go through there to see, and after that I got hit-after I got in between. I was not hit while I was on the sidewalk. There was nothing to prevent me from waiting on the sidewalk until the smoke cleared up, but I didn't do that. When I went in there I went in knowing that this smoke was obstructing cars and anything else on the bridge. I went in there knowing that other automobiles might come along on the bridge. I wasn't thinking about other machines.’

There is an offset or railing between the wagon road and the sidewalk, or pedestrians' way, the latter being about six or eight inches higher than the former.

There are three essential elements in actionable negligence: First, a duty imposed by law to exercise care in favor of the person for whose benefit the duty is imposed; second, the failure to perform that duty; and, third, a consequent injury so connected with the failure to perform the duty that the failure is the proximate cause of the injury. What constitutes proximate cause has been defined in numerous decisions, and there is practically no...

To continue reading

Request your trial
106 cases
  • Cox v. Dempsey
    • United States
    • Mississippi Supreme Court
    • 11 Enero 1937
    ... ... sec. 180; 46 C. J. 884; Wilson v. Mullen, 11 ... Tenn.App. 327; I. C. R. R. Co. v. Oswald, 338 Ill ... 270, 170 N.E. 247; Harnett v. Boston Store, 265 Ill ... 331, 106 N.E. 837, ... ...
  • Dewey v. A. F. Klaveness & Co., A/S
    • United States
    • Oregon Supreme Court
    • 13 Marzo 1963
    ...injury to passerby attempting to remove high voltage wire from street because no danger present to anyone); Illinois Central Railroad Co. v. Oswald, 338 Ill. 270, 170 N.E. 247 (1930) (rescue doctrine held inapplicable to plaintiff who went between two wrecked cars not to offer aid but merel......
  • Boehrer v. Thompson
    • United States
    • Missouri Supreme Court
    • 11 Julio 1949
    ... ... automobile was not guilty of willful or wanton negligence ... under the Illinois guest statute. And the deceased was a ... trespasser on the right of way, so defendant railroad ... 580; ... Elliott v. Elgin, J. & E. Ry. Co., 59 N.E.2d 486; ... Illinois Central R. Co. v. Oswald, 338 Ill. 270, 170 ... N.E. 247; Newell v. Cleveland, C.C. & St. L.R. Co., ... 261 Ill. 505, 104 ... ...
  • Carroll v. May Department Stores Co.
    • United States
    • Missouri Court of Appeals
    • 6 Junio 1944
    ... ... 1055; Wright v. Kansas Structural Steel Co. (Mo ... App.), 157 S.W.2d 582, 591; Ill. Cent. R. R. v. Oswald, ... 170 N.E. 247, 338 Ill. 270 ...          McCullen, ... J. Hughes, ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT