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

• Decision Date: 18 January 1892
• Citation: 139 Ill. 596,29 N.E. 692
• Parties: LAKE SHORE & M. S. RY. CO. v. BODEMER.
• Court: Illinois Supreme Court

139 Ill. 596

29 N.E. 692

LAKE SHORE & M. S. RY. CO.

v.BODEMER.¹

Supreme Court of Illinois.

Jan. 18, 1892.

Appeal from appellate court, first district.

Action on the case by Philip Bodemer, administrator of the estate of Philip Bodemer, Jr., deceased, against the Lake Shore & Michigan Southern Railway Company, to recover damages for the death of said decedent. Plaintiff obtained judgment, which was affirmed by the appellate court. Defendant appeals. Affirmed.

CRAIG and BAILEY, JJ., dissenting.

33 Ill. App. 479, affirmed.

P. B. Smith, for appellant.

Joseph S. Kennard. Jr., ( Brandt & Hoffman, of counsel,) for appellee.

The other facts fully appear in the following statement by MAGRUDER, C. J.:

This is an action on the case, begun on September 28, 1886, in the superior court of Cook county, by the appellee, as administrator of the estate of Philip Bodemer, Jr., deceased, to recover damages for the death of said Philip Bodemer, Jr., who was killed while trying to cross the tracks of the appellant company at a point between Twenty-fifth and Twenty-Sixth streets, in the city of Chicago. The trial in the court below resulted in verdict and judgment for $3,000 in favor of the plaintiff, which judgment has been affirmed by the appellate court, and the case is brought here by appeal from the latter court.

The accident occurred on September 6, 1886. At the place where it happened the tracks of the appellant run north and south, and Twenty-Fifth and Twenty-Sixth streets, which cross said tracks, run from east to west; the former street being north of the latter. There is much travel on these streets, and the locality in question is occupied with business houses, and much frequented during the day by men and teams. The appellee, the father of the deceased, lived on Wentworth avenue, west of the railroad tracks and north of Twenty-Fifth street, and between that street and Twenty-Fourth street. The deceased, who was a boy about 9 years old, and his older brother, Fred, who was about 12 years old, had been east of the track on Butterfield street, between Twenty-Fourth and Twenty-Fifth streets, and at about 5 o'clock in the afternoon came to Twenty-Fifth street, in order to cross the tracks there and go home. A long and noisy freight train was going southward on one of the eastern tracks. The boys walked southward towards Twenty-Sixth street, along the alley east of the track, until the last car of the freight train had passed. The older brother then crossed the tracks, going to the west, in safety; but the younger, while attempting to follow his brother in crossing the tracks from the east to the west, was struck by the engine of a passenger train, going at a great speed from the south to the north upon one of the tracks west of that on which the freight train had passed, and was killed. The place where he was killed was about 125 feet north of Twenty-Sixth street.

The declaration contained five counts. The first charged that the defendant so carelessly and improperly drove and managed the engine and train, and ran the same at so great a speed that, through the negligence and improper conduct of its servants, the deceased was struck and killed. The second count alleged that defendant drove its engine upon the railroad up to, upon, and across the public street, (Twenty-Fifth street,) at the crossing of the same by the said railroad, and that no bell of at least 30 pounds weight was rung, or whistle sounded, at the distance of 80 rods from the crossing, or kept ringing or whistling until the crossing was reached, contrary to the statute, etc. The third count sets out an ordinance of the city of Chicago prohibiting passenger trains from running faster than 10 miles an hour, and freight trains from running faster than 6 miles an hour, and charges that the defendant, not regardingthe ordinance, and grossly neglecting its duty, recklessly drove its locomotive and passenger train at a rate of speed greatly in excess of 10 miles an hour along its railroad between Twenty-Fifth and Twenty-Sixth streets, although its agent in charge thereof well knew that the part of the tracks between said streets was frequented by many and divers individuals, who were accustomed to go along and upon and across said tracks at said place; and that, by reason of the recklessness and gross negligence of said agents, the deceased was killed, etc. The fourth count sets out an ordinance of said city requiring the bell of each locomotive to be rung continually while running in said city, except in a certain locality other than that where the accident occurred, and charges that said engine and train did not ring a bell continually while running over its track between said streets, by reason of which neglect the deceased was struck, etc. The fifth count alleges that the defendant was driving its locomotive towards a certain point on its railroad near the crossing of Twenty-Fifth street, and while the deceased, who was a minor under the age of 10 years, was “then and there, and at said afore-mentioned point upon said railroad,” the engineer, although he knew that persons were in the habit of passing across and along the track at and near said place, between Twenty-Fifth and Twenty-Sixth streets, “and although, while at a great distance from said certain point aforesaid, upon the railroad of the defendant, he saw divers persons near to that track of defendant's railroad upon which he was at that time driving his engine, and although he saw said Philip Bodemer, Jr., upon and between said tracks, upon which he was at that time driving said engine, said Philip Bodemer, Jr., being at that time at a great distance from said engine, yet the said servant of the defendant wantonly, recklessly, and with gross negligence drove said engine and train at a very great rate of speed along and upon said railroad of the defendant, and towards said Philip Bodemer, Jr., and towards and across said certain place, and did not make reasonable or efficient effort to avoid causing his said engine to strike the said Philip Bodemer, Jr., nor did he give adequate, sufficient, or timely warning to the said Philip bodemer, Jr., in order that he might avoid being injured by the approach of said engine, and by and through the gross and wanton neglect and improper conduct of the defendant,” the locomotive struck the deceased, and killed him.

After all the evidence of both the plaintiff and defendant had had been introduced, the defendant made a motion to exclude the evidence, but the motion was overruled, and exception was taken. The plaintiff asked no instructions, and none were given on behalf of plaintiff. The defendant asked the court to give 26 instructions. All of these were refused except the second. The first of the instructions so refused was as follows: “The jury are instructed that the evidence is not sufficient to sustain a verdict for the plaintiff, and your verdict should therefore be for the defendant.” The second instruction, the only one given, was as follows: “The jury are instructed that there can be no recovery under the first, second, third, and fourth counts of the declaration.” The court, at the request of counsel for the defendant, required the jury to find specially upon certain questions of fact, and their findings are set out in the record.

MAGRUDER, C. J., ( after stating the facts.)

It is assigned as error that the trial court refused, at the conclusion of the testimony on both sides, to instruct the jury, as then requested by the defendant, to find for the defendant. The position of the appellant is that the deceased was a trespasser upon its right of way, attempting to cross the tracks where there was no public crossing. It has been held that, where a trespasser upon the tracks of a railroad company is injured, the company is not liable, unless the injury was wantonly or willfully inflicted, or was the result of such gross negligence as evidences willfulness. By withdrawing the first, second, third, and fourth counts from the consideration of the jury, and submitting the case upon the fifth count, the court assumed that the deceased was a trespasser at the time of his death, required the jury to find that the injury was inflicted wantonly and willfully, or with such gross negligence as showed willfulness.

The evidence of the plaintiff tended to show that there were public street crossings over appellant's track at Twenty-Sixth, Twenty-Fifth, and Twenty-Fourth streets; that the passenger train which struck the deceased was traveling at the rate of from 30 to 35 or 40 miles an hour; that there were no gates where Twenty-Sixth street crosses the tracks; that the tracks were laid upon what was called “Clark Street,” running directly south from Twenty-Second street; that there were two road-ways along the east and est sides of the tracts; that there were no fences between these road-ways and the tracks; that the public drove along these road-ways, running north and south, with wagons, and people passed up and down upon them; that wagons drive up to the tracks upon these road-ways, between Twenty-Sixth and Twenty-Fifth streets, and unload the cars, standing there, on the tracks; that “the wagons do not drive in there between the tracks, except when they are unloaded;” that there are houses on the east side of the tracks; that upon the west side of the tracks, fronting upon the strip of ground called “Clark Street,” and consisting of the two road-ways and the tracks between them, are a saloon, a rag-shop, carpet-shop, stone-yard, packing-house, and ice-house, all located between Twenty-Sixth and Twenty-Fifth streets; that many people pass there, going across the tracks to the rag-shop and packing-house, every day; that no bell was rung on the engine of the passenger train which killed the deceased; that a whistle was blown twice, giving two short, sharp sounds, when the engine of the passenger train was about 5 or 10 feet from the deceased, or, as...