Illinois Cent. R. Co. v. Haskins.

• Decision Date: 23 September 1885
• Citation: 2 N.E. 654,115 Ill. 300
• Parties: ILLINOIS CENT. R. CO. v. HASKINS.
• Court: Illinois Supreme Court

115 Ill. 300

2 N.E. 654

ILLINOIS CENT. R. CO.

v.HASKINS.

Supreme Court of Illinois.

Filed September 23, 1885.

Appeal from appellate court, Second district.

SCOTT, J., dissenting.

TUNNICLIFF, J.

The appellee recovered a judgment against appellants in the La Salle circuit court for $7,000, for the loss of an arm and other injuries sustained by him in consequence of being struck by a car under appellant's control while the same was being transferred from one track to another by means of a ‘running’ or ‘flying switch.’ The circuit judge overruled a motion for a new trial, and rendered judgment on the verdict, which was affirmed by the appellate court of the Second district, and the railroad company have appealed the case to this court.

Appellee was in the habit of shipping sand over appellant's road every few days, and of applying to the yard-master for a car for that purpose. On the day of the accident he went to see the yard-master to obtain a car, and found him near the south end of the yard, which is several hundred feet long from north to south, and along which, running parallel, are four tracks, running lengthwise of the yard, and connected by switches in the south as well as north part of the yard. The yard-master was near an engine, with which he was about to make the ‘running switch,’ for the purpose of plaoing the car which struck appellee upon the west track from the south part of the yard. The yard-master, anticipating the wishes of Haskins, (appellee,) notified him, on his approach, where his car was, and pointed it out, which was some 200 or 300 feet north from where Haskins and the yard-master then were, and in the same direction which the west track run, upon which the car was to be thrown. The yard-master testifies that when he informed Haskins where his car was, he told him to ‘look out,’ and that Haskins replied, ‘All right, my boy.’ There is some conflict in the evidence as to whether this was said just at that time, or just as Haskins was struck; but there seems to be no question but that the yard-master knew they were about to make this ‘flying switch,’ and throw the car upon the track along or near which Haskins would be likely to go to reach his car. The engine with the car attached had, in fact, started south to make the necessary run north to accomplish this ‘flying switch.’ That he gave no express warning to Haskins that it was about to be made, and, if in time, the latter did not understand what he meant by the words ‘look out,’ and no one was placed upon the switched car, or ahead of it, to warn any one of its approach, or danger; nor were any other precautions taken for the safety of those who might be upon the track along which this car was thrown. Haskins was walking on or near this track, towards his car, when struck by the one thus switched, which was moving north in the same direction he was going at the rate of about five miles per hour. There was a sidewalk on the west side of the track on which Haskins was walking, and had he taken and continued upon that walk he would not have been hurt. Haskins was going to his car to see if it was in readiness to receive the sand he was intending to ship in it, and to assist his teamster, who was near by with a wagon-load to put in the car.

The above are the main features in the case. There are other matters of detail in the evidence and surroundings bearing upon the question of care of the respective parties, but as a majority of the court are of the opinion that there was some evidence tending to show that, under the circumstances, the appellee did use ordinary care, and that the appellants did not, and as we are precluded under the appellate court act from determining whether that evidence was sufficient to warrant the jury in finding the verdict they did or not, it would serve no useful purpose for us to discuss the evidence further.

The counsel for appellant insists that, conceding all the evidence shows or tends to show, the verdict of the jury is contrary to law, and that upon the incontrovertible facts the evidence utterly fails to show a right of recovery. There was certainly a controversy upon each side as to what facts the evidence established. Appellee contended that it showed that he was using ordinary care when he received the injury, and that appellant's servants, in the making of this flying or running switch, were at the same time, as disclosed by the evidence and surroundings, guilty of negligence and carelessness; whereas, appellant's counsel claims, as we understand him, that assuming appellee's own testimony as to how the injury came to be inflicted to be true, and therefore ‘incontrovertible,’ it was apparent that he was himself guilty of such gross negligence and carelessness as to his own safety that no recovery could be had or maintained unless the appellant's servants willfully and wantonly caused the injury, which is not claimed to have been the case. This position is not tenable, for the reason that whether he was using due care or was grossly negligent is not a question of law, to be determined by the court, but one of fact, to be ascertained by the jury under all the evidence, environments, and other direct circumstances. Pennsylvania Co. v. Frana, 112 Ill. 398;Same v. Conlan, 101 Ill. 94;Chicago & A. R. Co. v. Bonifield, 104 Ill. 224;Indianapolis & St. L. R. Co. v. Morgenstern, 106 Ill. 220.

As was said in the Bonifield Case, supra: ‘It is the long-settled doctrine of this court that negligence is a fact, the finding of which is clearly within the province of the jury, and it is equally well settled that a question of comparative negligence is as clearly within its province. The legislature has deprived this court of the power of reviewing controverted facts passed upon by a jury. This power has been conferred upon the appellate courts, and we have been deprived of its exercise. We are compelled to take them as found by those tribunals, and have no discretion in the matter. In this case it was a controverted fact whether the act of deceased in passing from the train at the time was slight negligence, and the negligence of the company in starting its train as it did, when compared with that of deceased, was gross. These facts have been found by the jury and the appellate court, and we have no right to disregard their finding.’ And in the case at bar it was purely a question of fact whether Haskins, having lawful business upon the yard and tracks of appellant, and going on or near to one of its tracks to reach the car that had been assigned him,-the only engine at the time about the yard being upon a different track,-was in any degree negligent; and if he was, whether his negligence was slight, and that of appellant's servant in making the running switch in the manner and with the surroundings under which it was done, as compared with his, was gross; and these facts having been passed upon by the jury, and their finding approved by the trial judge, and his judgment affirmed by the appellate court, we have no power to review their finding.

Counsel, to maintain the position that we should reverse the judgment below, if in our opinion the evidence that was not disputed or controverted established such a state of facts as did not authorize a recovery, cite the cases of Missouri Furnace Co. v. Abend, 107 Ill. 44;Paddon v. People's Ins. Co., Id. 196; and Fitch v. Johnson, 104 Ill. 111. In the Missouri Furnace Co. Case the opinion states that ‘it will be assumed that whatever the evidence tends to prove was found in favor of plaintiff, and that finding, under the practice act, is of course conclusive on this court. It is said, however, there is an entire want of evidence to sustain the averment of the declaration that deceased ‘used due care and diligence for his personal safety, and that this defect is fatal to the present recovery;’ and the court thereupon examined the record and found that ‘there were circumstances tending to show that deceased observed ordinary care, and that was sufficient to warrant the giving of the instructions,’ and that question was pursued no further. In Paddon v. Insurance Co. the court, after stating that ‘where an appellate court fail to recite in their judgment they found the facts different from what they were found by the trial court, it will be understood the affirmance of the judgment implies a finding of the facts the same way,’ adds: ‘Were it true, as counsel insists it is, the facts of this case are uncontroverted, it would then be a question of law whether, on the facts appearing from the record, plaintiff would be entitled to recover. That question, on the authority of Goodrich v. Lincoln, 93 Ill. 360, would be open for consideration in this court, without the trial court being asked to instruct itself how to find as to the law of the case.’ By referring to the case of Goodrich v. Lincoln, supra, it will be...