Illinois Cent. R. Co. v. Nowicki

• Decision Date: 26 October 1893
• Citation: 148 Ill. 29,35 N.E. 358
• Parties: ILLINOIS CENT. R. CO. v. NOWICKI.
• Court: Illinois Supreme Court

148 Ill. 29

35 N.E. 358

ILLINOIS CENT. R. CO.

v.NOWICKI.¹

Supreme Court of Illinois.

Oct. 26, 1893.

Appeal from appellate court, first district.Action on the case by Franceska Nowicki, administratrix of George Nowicki, deceased, against the Illinois Central Railroad Company.

Plaintiff obtained judgment, which was affirmed by the appellate court.

Defendant appeals.

Affirmed.

Sidney F. Andrews and C. V. Gwin, (James Fentress, of counsel,) for appellant.

Gibbons, Kavanagh & O'Donnell, for appellee.

WILKIN, J.

Appellee brought this action in the superior court of Cook county against appellant to recover damages for negligently causing the death of her husband, George Nowicki. The first count of the declaration alleged that the deceased, while on one of the streets of Chicago, exercising due care, was struck and killed by a locomotive of the defendant, negligently run over and across said street, at a rapid and reckless rate of speed; also, by a second count, that the defendant negligently failed to erect gates at said street crossing, whereby the deceased, while walking over the said crossing, using due care, was struck by one of defendant's locomotives, and killed. A plea of not guilty was filed, and a trial was had, resulting in a judgment for $5,000 and costs. That judgment was affirmed in the appellate court.

At the close of the plaintiff's evidence, the court was asked to instruct the jury to return a verdict for the defendant, which was denied. After the evidence was all in, the request was renewed, and again denied. That ruling is assigned for error, and is the principal ground for reversal now urged. It is insisted that the evidence and all inferences which can properly be drawn from it fail to prove that the deceased used reasonable care to avoid the injury complained of, and therefore, under the rule, when a material part of the plaintiff's case is wholly unsupported by proof, the court should have excluded all the evidence from the jury, or instructed it to return a verdict for the defendant. The overruling the motion at the close of all the evidence and proper exception thereto presents the question, raised as one of law, subject to review in this court. Bartelott v. Bank, 119 Ill. 259, 9 N. E. Rep. 898; Collar v. Patterson, 137 Ill. 403, 27 N. E. Rep. 604. But this is so only to the extent of determining whether there is or is not evidence legally tending to prove the fact affirmed; i. e. ‘evidence from which, if credited, it may reasonably be inferred, in legal contemplation, the fact affirmed exists, laying entirely out of view the effect of all modifying or controverting evidence.’ The rule in this state undoubtedly is that, in suits for personal injuries caused by the negligence of another, the plaintiff must allege and prove that he was at the time in the exercise of due care, and, when the action is for causing the death of another, the burden is upon the administrator to show that the deceased exercised ordinary care to avoid the injury. In the latter class of cases, however, and especially where no one saw the killing, direct testimony as to such care is not necessary, but may be inferred from the circumstances of the case as shown by the evidence. Railroad Co. v. Gregory, 58 Ill. 272;Furnace Co. v. Abend, 107 Ill 44; Railway Co. v. Carey, 115 Ill. 115, 3 N. E. Rep. 519. In the last case cited, Justice Sheldon, rendering the opinion, used the following language: ‘It is said there was no proof of the exercise of due care by the deceased. It was in evidence that about midnight he started to walk home on Fifty-First street; that he was then sober. The situation of the cars would not lead one to think they were suddenly to be moved south across Fifty-First street. These were circumstances from which there might be inference whether or not deceased used due care. Direct testimony upon this point was not required.

The evidence in this case shows that the defendant was operating a double-track railroad, running substantially north and south across Eighty-Third street, in South Chicago, the tracks making a sharp curve to the east immediately south of the street, and at a distance of about 120 feet across the tracks of the Baltimore & Ohio. the east track was used for south-bound trains, and the west one for those going north. About 8 o'clock in the evening, a train headed south stopped to take water from a tank on the east side of the track, 50 feet south of the street, the cars standing on the crossing. At the same time a train from the south (on the west track) ran across the street, as the evidence tends to show, at a high rate of speed, and, while on the crossing, the engineer saw the body of the deceased roll off the pilot of his engine. The night was very dark, and it was raining. It is clear from all the evidence that, by reason of the curve in the tracks and the position of the south-bound train, the view of the approaching train going north was more or less obstructed. It was proved that deceased lived east of the tracks, near the Eighty-Third street crossing, and worked at a rolling mill west of the railroad. The evidence also tends to show that Eighty-Third street was the convenient and usual route from the rolling mill to the dwelling of the deceased. He was seen a moment before he was struck standing on the crossing between the rails of the west track. The plaintiff, his widow, testified that he left home about 4 o'clock that atternoon, with some papers, intending to go to a real-estate office, on business connected with a lot, and she saw him no more until after his death. She also stated that he was ‘a sober, good, hardworking man,’ and that when he left her that afternoon ‘he was a strong man,-sound.’...