Lake Shore & M.S. Ry. Co. v. Johnson

• Decision Date: 22 January 1891
• Court: Illinois Supreme Court
• Parties: LAKE SHORE & M. S. RY. CO. v. JOHNSON.

135 Ill. 641

26 N.E. 510

LAKE SHORE & M. S. RY. CO.

v.JOHNSON.¹

Supreme Court of Illinois.

Jan. 22, 1891.

Appeal from appellate court, first district.

Action by Swan A. Johnson against the Lake Shore & Michigan Southern Railway Company. Defendant appeals. Plaintiff's first instruction was as follows: ‘The jury are instructed that if any believe from the evidence that the plaintiff, Johnson, was injured in the manner stated in the declaration, through the fault of the defendant's employes in negligently operating and running cars upon the railroad of the defendant as alleged in the declaration, and that the plaintiff was exercising due care himself at the time; or if the jury believe from the evidence that said plaintiff was exercising ordinary care on his part, but was guilty of slight negligence contributing to such injury, and that the employes of the defendant were guilty of gross negligence contributing to such injury, but that the negligence of said plaintiff was slight, and that of defendant's employes was gross, when compared with each other,-the plaintiff is entitled to recover, and the verdict should be accordingly.’

Pliny B. Smith, for appellant.

John S. Miller, for appellee.

MAGRUDER, J.

This is an action to recover damages for a personal injury. The trial below resulted in a verdict and judgment for the plaintiff, and an appeal to the appellate court has resulted in a judgment of affirmance.

The first error assigned is the refusal of the court to instruct the jury, at the request of the defendant, that the evidence was not sufficient to justify a verdict for the plaintiff, and that their verdict should be for the defendant. We do not think that the facts shown by the testimony of the plaintiff conclusively established negligence on his part as a matter of law. The court can never be called upon to say to a jury that negligence has been established as a matter of law, unless the conduct of the injured party has been so clearly and palpably negligent that all reasonable minds would so pronounce it without hesitation or dissent. ‘Negligence cannot be conclusively established by a state of facts upon which fair-minded men may well differ.’ Railroad Co. v. O'Connor, 119 Ill. 586, 9 N. E. Rep. 263; Railroad Co. v. Voelker, 129 Ill. 540, 22 N. E. Rep. 20. Unless the negligence of the plaintiff is proven by such conclusive evidence that there can be no difference of opinion as to its existence upon a mere statement of the facts, the jury must pass upon it. We have repeatedly held that it is a question of fact to be determined by the jury from the evidence, and not a question of law, whether an injured party has exercised ordinary care for his safety and to avoid injury. Pennsylvania Co. v. Frana, 112 Ill. 398, Railroad Co. v. Lane, 130 Ill. 116, 22 N. E. Rep. 513. Nor should a cause ever be withdrawn from the jury, unless the testimony is of such a conclusive character as to compel the court, in the exercise of a sound judicial discretion, to set aside a verdict returned in opposition to it. Railway Co. v. Snyder, 128 Ill. 655, 21 N. E. Rep. 520. In the present case the plaintiff, in returning from his work to his home, on July 18, 1887, between 5 and 6 o'clock in the afternoon, was walking westward on the north sidewalk of Twenty-Fifth street in Chicago, when he came to the place where appellant's railroad tracks cross said street. At this point eight tracks, running north and south, cross Twenty-Fifth street. Plaintiff stopped on easternmost uninclosed track, and looked westward, and also southward towards Twenty-Sixth street. Upon one of the western tracks a passenger train was moving south across the street. It would appear that another passenger train was moving north over another track. Freight-cars were moving across the street on the second track west of where he stood. While he was looking westward, with his face turned a little towards the north, some cars moving from the south across the street upon the track on which he stood struck him from the rear, knocked him down, and injured one foot so that it had to be amputated, and the other so that it was seriously disabled. Plaintiff states that he looked south a few seconds before he was struck, and saw no cars coming from that direction towards him. This might well be true, as the cars which struck him were But he was obliged to look westward at to the west, and placed upon the track on which he was standing, and then pushed or ‘kicked’ rapidly on said last-named track towards the north across Twenty-Fifth street. It is said that, if he looked to the south, as he said he did, he must have seen the cars which struck him. But he was obliged to look westward at the same time, in order to avoid the passenger and freight trains which were there crossing the street ahead of him. His attention may have been distracted from a careful view towards the south by the necessity of looking towards the west. The cars may have been thrown so suddenly upon the track on which he stood, and which he evidently supposed to be unoccupied, that he did not notice the movement in time to retreat. The evidence tends to show that the grade slopes downward from the south to the north at this point; that an engine had pushed or ‘kicked’ the cars which struck him along this down grade upon the track where he stood, and then was disconnected from the cars, leaving them to move northward over Twenty-Fifth street by their own momentum; that while these cars were thus moving towards him there was not only no engine attached to them, and no bell sounding or whistle blowing, but there was no brakeman upon them in such a position as to control them, and no flagman anywhere in sight to give warning of their approach. The plaintiff had as much right to be upon Twenty-Fifth street as the railroad company had to be there with its cars. It was a public street, and its use by the company was subject to the right of the general public to use it. Plaintiff could hardy avoid standing upon one of the tracks, as the street crossing was filled and interlaced with a network of tracks. Where railroad companies thus cover a public street with a large number of tracks, they must observe unusual care, and take extra precautions, to avoid injury to persons passing along the street or sidewalks. Plaintiff had a right to believe that a train of cars would not be allowed to cross the street where he was standing without giving him warning by bell or whistle or flagman. He was not obliged to suppose that the railroad company would be guilty of such reckless and gross negligence as to suddenly transfer a number of cars upon an apparently unoccupied track, and then shove or ‘kick’ them thereon upon a descending grade, across a public street in a crowded city, without engine, or bell, or whistle, or brakeman, or flagman, or note of warning of any kind. It was a matter for the jury to determine, under all the facts and circumstances as thus detailed, whether or not the plaintiff was exercising due and proper care in his efforts to cross the street. The trial court committed no error in refusing to take the case from the jury.

It is claimed that the verdict is inconsistent with the special findings. The jury found specially, in answer to questions submitted by the defendant, that plaintiff stopped and stood upon the track where he was struck; that before he so stopped, and while he so stood, he looked to see if any cars were approaching on that track; that there was nothing to prevent him from seeing the approach of the cars which ran over him, if he had looked, nor anything to obstruct the view of the track from the point where the cars started to the place where they struck him, and that said cars could be seen by a person standing by the side of the track through the entire distance between the point from which they started and the point where they struck the plaintiff. The proof...