Jeneary v. Chicago & I. Traction Co.

• Decision Date: 21 February 1923
• Docket Number: No. 14930.,14930.
• Citation: 138 N.E. 203,306 Ill. 392
• Court: Illinois Supreme Court
• Parties: JENEARY v. CHICAGO & I. TRACTION CO.

306 Ill. 392

138 N.E. 203

JENEARY

v.CHICAGO & I. TRACTION CO.

No. 14930.

Supreme Court of Illinois.

Feb. 21, 1923.

Error to Appellate Court, Second District, on Appeal from Circuit Court, Kankakee County; A. W. De Selm, Judge.

Action by William Jeneary against the Chicago & Interurban Traction Company. From a judgment of the Appellate Court, Second District, affirming a judgment for plaintiff, defendant brings error.

Affirmed.W. R. Hunter and W. H. Dyer, both of Kankakee, for plaintiff in error.

Miller & Streeter, of Kankakee, for defendant in error.

THOMPSON, C. J.

Defendant in error brought his action on the case in the circuit court of Kankakee county to recover damages from plaintiff in error for injuries received in a collision between a New York Central railroad train, on which defendant in error was employed, and an interurban car belonging to the plaintiff in error. The declaration consisted of three counts, the first charging general negligence; the second, negligence growing out of violation of a speed limit ordinance; and the third, willfulness and wantonness. Plaintiff in error pleaded the general issue. The jury found it guilty, and assessed damages at $3,250. The judgment entered on this verdict was affirmed on appeal to the Appellate Court, and the case is here on Certiorari.

Defendant in error on the morning of the accident was acting as foreman of a switching crew for the New York Central Railroad Company. This company has a track running from Kankakee to Bradley, a distance of about a mile and a half. Plaintiff in error operates its cars from Kankakee to Bradley over the tracks of this North Kankakee Electric Light & Railway Company, a corporation organizedunder the General Corporation Act (Hurd's Rev. St. 1921, c. 32). The David Bradley Manufacturing Works, at Bradley, notified the New York Central Railroad Company to deliver to it two cars, both to be loaded with agricultural machinery-one destined to Portland, Or., and the other to Seattle, Wash.-and to pick up two cars at the factory which were loaded with goods billed for shipment to various points outside of Illinois. The switching crew of which defendant in error was foreman started for Bradley with the two cars ordered; the engine pushing the cars. On the way the crew picked up a coal car, which was the front car as they proceeded west into Bradley on South street. They approached Schuyler avenue, in which are laid the tracks over which plaintiff in error operates its electric cars, traveling 3 or 4 miles an hour. Defendant in error was riding in the front end of the coal car, directing the operation of the train. He looked north and south as the front end of the train emerged from between the buildings fronting on South street, and saw an interurban car coming from the north, 600 or 800 feet away. It was usual and customary for the interurban cars to stop before crossing the railroad tracks, and the motorman testified that he knew that it was his duty to stop there, and that he intended against Waleryja Szymczak and others, in continued to approach at a speed estimated by the motorman at 20 miles an hour and by the New York Central train crew at 40 miles an hour. The motorman did not slacken his speed until he was within 250 feet of the crossing. The tracks were wet, and when he applied his brakes he was going so rapidly that it was impossible for him to stop in time to avoid the collision. The coal car was knocked from the track, and defendant in error was seriously injured.

Plaintiff in error first contends that the trial court should have directed a verdict in its favor because defendant in error was guilty of contributory negligence in that he did not cause his train to stop within 800 feet of the crossing. This contention is based on section 12 of the act relating to the operation of railroads (Hurd's Rev. St. 1921, c. 114, § 75), which requires all trains running on any railroad in this state, when approaching a crossing with another railroad upon the same level, to be brought to a full stop before reaching the same and within 800 feet therefrom, and which requires the engineer or other person in charge of the engine attached to the train to positively ascertain that the way is clear, and that the train can safely resume its course before proceeding over the crossing. Without considering whether this statute is applicable to defendant in error or to the situation presented by this case, failure to stop would not necessarily bar recovery. Violation of a law at the time of an accident by one connected with it is usually evidence of negligence, but there remains a question of fact whether the illegal act is the proximate cause of the injury. The mere fact, if it be a fact, that defendant in error was violating the law at the time he was injured will not bar his right to recover, unless the unlawful act in some way proximately contributed to the accident in which he was injured. If the illegal act is a mere condition which made it possible for the accident to occur, but is not itself a part of the accident, it will not bar recovery. Lerette v. Director General, No. 14908 (Ill.) 137 N. E. 811. There was evidence in the record which would have justified the jury in finding that the failure to and his wife; that he is entitled to the undivided and the question was therefore properly submitted to the jury. Schlauder v. Chicago & Southern Traction Co., 253 Ill. 154, 97 N. E. 233. The court properly refused the peremptory instruction.

Over the objection of plaintiff in error the court received in evidence the following ordinance:

‘No railroad company, conductor or engineer or other employee of such company shall run or permit to be run within the city limits of said village any passenger train of cars at a greater rate of speed than ten (10) miles per hour, nor any freight train or car at a greater speed than six (6) miles per hour, undera penalty of not less than twenty...