Illinois Cent. R. Co. v. Larson

• Decision Date: 29 October 1894
• Citation: 152 Ill. 326,38 N.E. 784
• Parties: ILLINOIS CENT. R. CO. v. LARSON.
• Court: Illinois Supreme Court

152 Ill. 326

38 N.E. 784

ILLINOIS CENT. R. CO.

v.LARSON.¹

Supreme Court of Illinois.

Oct. 29, 1894.

Appeal from appellate court, Second district.

Action on the case by Lemuel Larson against the Illinois Central Railroad Company. Plaintiff obtained judgment, which was affirmed by the appellate court. 42 Ill. App. 264. Defendant appeals. Affirmed.

E. Eldridge, for appellant.

H. K. Wheeler, for appellee.

BAKER, J.

In this action on the case by appellee, a minor, who sues by his next friend, against appellant, for personal injuries, he recovered a judgment in the Kankakee circuit court of $2,500 damages; and that judgment was affirmed in the appellate court of the Second district.

The injuries were received by appellee from the running away of his team of horses, attached to a wagon loaded with slag, while attempting to cross the railroad tracks of appellant at Sixty-Seventh street, in the city of Chicago. There were six railway tracks there, and in the center of the street a planked crossing, 16 feet wide, for the public to use in passing over said tracks. Appellee was coming from the east, and approaching the second track from the west, known as ‘Track No. 2.’ A suburban train, consisting of an engine and four cars, had just arrived at the Sixty-Seventh street depot, from the north, and the rear end of the rear platform of the rear car of the train, as it then stood, projected over the crossing the width of the platform, which was about 4 feet, leaving a space of 12 feet of planked crossing; and over this the team in advance of the one driven by appellee passed in safety while the train stood still. The train was headed north, and apparently was destined for some point further north. Appellee was about to follow the team that had crossed the track, when one of appellant's servants on the train stopped him. About the same time the train got under motion, going backward. At that time the horses' heads were across the rails of the railway track. In the meantime a freight train had come up from the south, on another track, in the rear of appellee. He therefore turned his horses around as quickly as possible towards the north, so that their heads would then clear the rear end of the train. The servants of appellant, seeing the predicament appellee was in with his team, stopped the train, but only momentarily. The train had moved part of the length of the rear car, but that car had not cleared the crossing. When the conductor saw that the train cleared the team, he again proceeded to back the train, as he had first started to do. The train immediately commenced to back up again, and continued to do so until all the cars and locomotive had passed, although they were so close to the horses' heads that they almost struck them. In the meantime the noise and proximity of the moving train, ringing bell, and escaping steam, and the smoke from the engine, frightened the horses; and they began jumping and behaving badly, and as soon as the locomotive cleared the crossing they turned their heads, went across the tracks, and ran away. Appellee was thrown from the wagon, and severely injured; his thigh bone was fractured, and his head so hurt as to cause concussion of the brain and impairment of memory, from which he has never recovered, so that he has never been able to give any account of the accident.

In the arguments in this court, counsel for appellant have discussed at considerable length the evidence in the case; their claims being that, at the time of the accident, appellee was not in the exercise of ordinary and reasonable care, and that there was no culpable negligence on the part of appellant. It is insisted that this court should review the evidence for the purpose of ascertaining and determining for itself the facts of the case, and it is strenuously urged that the legislature of the state have no constitutional authority to say and determine what questions involved in cases coming before this court on appeal from the appellate court may be considered and passed upon here, and what questions shall not be so considered and determined. This is not an open question. In Railroad Co. v. Fisher, 141 Ill. 614, 31 N. E. 406, this court expressly held that under the constitution the legislature has the power to confer upon this court jurisdiction to review the judgments of the appellate courts, both upon questions of law or questions of fact, or to make the decision of the appellate courts final both as to law and as to fact, and that hence it follows that the legislature has authority to make the decisions of the appellate courts final merely as to questions of fact, and to confer upon the supreme court jurisdiction to review upon questions of law only. It would be useless to recapitulate the grounds upon which that decision was based, and especially so as it merely followed in the wake of the earlier decisions in Young v. Stearns, 91 Ill. 221, and Fleischman v. Walker, Id. 318. See, also, Railway Co. v. Richards (opinion filed at Ottawa, June 19, 1894) 38 N. E. 773.

It is further claimed that this court, by its decisions in Abend v. Railway Co., 111 Ill. 202;Holmes v. Railroad Co., 94 Ill. 439; and Railroad Co. v. Scates, 90 Ill. 586,-all of which were decided after sections 87 and 89 of the practice act went in force, on July 1, 1877 (Laws 1877, [152 Ill. 330]p. 148), and more especially by the decision in the first-named case, has established it as the law of this state that the supreme court will, in all cases of appeals from or writs of error to the appellate courts, look into the evidence to see if a liability has been established against the defendant by the evidence introduced. It seems to us that counsel have not examined those cases with sufficient care. On the trial of the Abend Case, after the evidence on the part of the plaintiff was all in, the defendant declined to offer any testimony; and the court, at its instance, instructed the jury to find the issues for the defendant, which it did. Motions to instruct the jury to find for the defendant, or to exclude the evidence introduced by the plaintiff, operate as demurrers to the evidence, and raise questions of law, and such questions this court has jurisdiction to review in all cases that come before it. Cothran v. Ellis, 125 Ill. 496, 16 N. E. 646;Railway Co. v. Velie, 140 Ill. 59, 29 N. E. 706. And so what was said by this court in the Holmes Case was said in discussing the matters of involuntary nonsuits, and motions to exclude the evidence of parties plaintiff from the jury. And what was said in the Scates Case was said in discussing the rulings of the court upon the instructions. In the case at bar the defendant did not, when the plaintiff rested...