Illinois Terminal R. Co. v. Mitchell

• Decision Date: 21 February 1905
• Citation: 73 N.E. 449,214 Ill. 151
• Parties: ILLINOIS TERMINAL R. CO. v. MITCHELL.
• Court: Illinois Supreme Court

214 Ill. 151

73 N.E. 449

ILLINOIS TERMINAL R. CO.

v.MITCHELL.

Supreme Court of Illinois.

Feb. 21, 1905.

Appeal from Appellate Court, Fourth District.

Action for personal injuries by Jacob Mitchell against the Illinois Terminal Railroad Company. From a judgment for plaintiff, affirmed by the Appellate Court, defendant appeals. Affirmed.

Henry S. Baker and Travous, Warnock & Burroughs, for appellant.

Webb & Webb and Burton & Wheeler, for appellee.

HAND, J.

This case is an appeal from a judgment of the Appellate Court for the Fourth District, affirming a judgment of the circuit court of Madison county in favor of appellee for the sum of $1,329, rendered against appellant for damages alleged to have been received by appellee to his person while walking on the track of appellant laid in a street in the city of Alton. The declaration contains four counts, the first of which charges that by reason of the careless and improper management of the train of appellant it struck and injured appellee while he was walking along Front street, in the city of Alton. The second count sets out the speed ordinance of the city of Alton and charges a violation thereof. The third count charges a failure to comply with the duty to ring a bell continuously while within the city limits, as required by ordinance; and the fourth sets out the speed ordinance, and charges that appellant wilfully and wantonly ran its train at a prohibited rate of speed. All of the counts except the fourth aver that the injury was received while appellee was upon a public highway.

The only error assigned or argued by appellant is the refusal of the trial court to give a peremptory instruction at the close of the plaintiff's evidence and at the close of all the evidence; said instruction having been offered by it on each occasion. This requires an examination of the testimony for the purpose of determining whether there is evidence in this record tending to prove the cause of action alleged in the declaration. The evidence tends to show that appellee, at the time of the accident, was nearly 61 years of age, a common laborer, and that on the morning of the accident he passed down Oak street, in the city of Alton, until he reached Front street; that he then crossed three railway tracks situated upon Front street to the track of the ‘Bluff Line,’ so called in the evidence, and started east on this track; that shortly thereafter he saw a train approaching on this track, and he crossed over to the track of appellant; that before going on its track he looked west to the curve, about 1,000 feet, and saw no train approaching; that after he had walked about 150 feet east on the track of appellant he heard the whistle of a train behind him, turned to see what it was, and knew no more until he regained consciousness in the hospital, 10 days later; that both legs were broken in several places, three ribs were fractured, and one of his arms was broken, besides many bruises and concussions. There is a sharp conflict in the evidence as to whether a bell was rung and at what speed the train was moving at the time of the accident, and the jury might well have taken either view in passing upon those questions.

It is urged by appellant that appellee was a...