Lake Shore & M.S.R. Co. v. Parker

• Decision Date: 21 January 1890
• Citation: 23 N.E. 237,131 Ill. 557
• Court: Illinois Supreme Court
• Parties: LAKE SHORE & M. S. R. CO. v. PARKER.

131 Ill. 557

23 N.E. 237

LAKE SHORE & M. S. R. CO.

v.PARKER.¹

Supreme Court of Illinois.

Jan. 21, 1890.

Appeal from appellate court, first district.

Pliny B. Smith, for appellant.

John McGaffey and John T. Richards, for appellee.

WILKIN, J.

This is an action on the case, brought by appellee against appellant, for negligently causing the death of her husband, John C. Parker. There are two counts in the declaration, both in the usual form, except that the second fails to allege that the deceased left surviving him next of kin. The negligentact by which death was caused is in both counts charged to be leaving a certain switch open, whereby the engine, then driven by deceased, was diverted from its track, and caused to collide with another engine on a side track. A trial in the circuit court of Cook county, the Honorable FRANK BAKER, J., presiding, resulted in a verdict and judgment for appellee for the sum of $5,000, and costs of suit. On appeal to the appellate court of the first district, that judgment was affirmed, and appellant now prosecutes this further appeal.

It appeals that at the time of his death deceased was employed as a locomotive engineer on the railway of the Chicago, Rock Island & Pacific Railway Company. Running into the city of Chicago from the switch between Englewood and the city depot, a distance of some six miles, this company and appellant used the same main tracks, along which, at frequent intervals, were switches under the exclusive control of appellant. These were supplied with targets, which served as signals to indicate whether the switch was open or closed. One of these switches was at Forty-Fourth street, at which place appellant maintained extensive yards on either side of the main track. This switch was on the west side of the west track, and, when open, would divert a train from the east main track to a side track in the east yard. On the 7th of November, 1883, as Parker, in charge of a locomotive attached to a train of passenger cars, approached this switch from the south, he discovered that it was open, but too late to stop his train before being thrown on the side track, and in collision with a locomotive and train belonging to appellant, thereby causing his death.

The theory of appellee's case is that the employes of appellant had negligently left the switch open, and in a condition dangerous to trains approaching from the south; that deceased was in the exercise of reasonable case as he approached the same, and therefore appellant is liable. The first of these positions is not controverted by appellant. The second is strenuously denied, and upon its determination the result of the case rests. It presents a controverted issue of fact, and the finding of the jury, affirmed by the judgment of the appellate court, is conclusive against appellant's contention, and cannot be retried in this court. Appellant seeks to avoid this result upon the theory that there is no evidence tending to support that finding, but, on the contrary, the undisputed facts show that deceased was himself guilty of gross negligence contributing to his death, and therefore the question of his negligence becomes one of law, and not of fact.

The conclusion is not warranted by the evidence. It shows that deceased approached the switch at the ‘usual speed,’ and that he was at his proper place on the engine, and had it under control; that he remained at his post to the last moment. In short, the evidence at least tends to show that he did everything which it was his duty to do under the circumstances, unless it can be said that the rate of speed at which he approached the switch should be held conclusive proof of negligence; or, as is argued by counsel, that, whether he could see the switch target or not, he was bound to know its position, and so regulate the speed of his train as to be able to stop it before running into the open switch, and, if he did not, he was guilty of negligence as a matter of law. The testimony of the fireman shows that for some distance south of the switch the target was so obscured by smoke and steam from an engine on a side track near by that it could not be seen from the cab of Parker's engine. To say that, notwithstanding this fact, the deceased was bound to assume, or even suspect, that the switch might be open, and stop his train, or put it so under control that he could stop it before reaching the switch, and that a failure to do so is conclusive proof of negligence, seems so unreasonable as to refute itself. In such case Parker would certainly have the right to suppose that others had done their duty by closing the switch. Little progress could be made by trains if any other rule should be adopted. Railroad Co. v. Snyder, 117 Ill. 376,² is supposed to support appellant's position. It was not claimed in that case that Snyder, the deceased, could not, or that he did not, see the signal. The contention by his administrator was that the signal was given for him to pass the crossing, which he was attempting to obey, when the signal changed, but too late for him to stop his train and avoid the collision. On the other hand, it was insisted that the signal was not given for him to cross, but for the train with which he collided. The instruction referred to by counsel, and which we held should have been given, simply announced that, if the jury found from the evidence that the signal was for the train with which Snyder collided, and not for him, his administrator could not recover. In Lombard v. Railroad Co., 47 Iowa, 497, it is expressly stated that the signal was seen, and so in the other cases cited it was seen, or could have been seen by looking.

It was unquestionably the duty of the deceased, taking into consideration all the facts and circumstances, obscurity of the vision, with others, to approach the switch with care. He was not bound to suppose or suspect that defendant's servants had been guilty of a reckless omission of duty in leaving it open. Whether he used due care to observe the target, and, in approaching, the train, was therefore clearly a question of fact. The jury found that, as the train in charge of deceased approached the switch, it was running between 14 and 18 miles an hour. This, it is said, under the circumstances and rules of the two companies offered in evidence, was gross negligence on the part of deceased, and absolutely precludes a recovery by his administratrix. It is not pretended that this rate of speed is ordinarily dangerous, but the contention is that, the view of the target of the switch being obscured, the train being behind time, the fact that a switch was known to be at that place, and that it was near a station, made it imperative upon deceased, under the rules of his own and the defendant company, to run at a less rate of speed. Such of the rules referred to as are material for the consideration of this point are: (1) ‘When the view is from any cause obscured, engineers and conductors must control their trains or engines so as to be able to stop within the range of their vision.’ (2) Delayed trains between Englewood and Chicago must run with great caution, and at all times under full control. (3) ‘That all trains must approach stations with reduced speed and with care.’ (4) That in approaching switches the greatest care must be taken.

It will be seen that no one of these rules commands the doing or not doing a particular act or acts. They each impose upon the engineer duties calling for the exercise of judgment, skill, and diligence. In other words, they simply call attention specifically to the exercise of the care which the law imposes upon every engineer. Therefore whether running a train 14 miles an hour was a violation of these rules is as much a question of fact as would have been the question, was deceased guilty of negligence, had there been no rules? Railroad Co. v. Dill, 22 Ill. 264;Burkett...