Lerette v. Dir. Gen. of Railroads

• Decision Date: 08 February 1923
• Docket Number: No. 14908.,14908.
• Citation: 137 N.E. 811,306 Ill. 348
• Parties: LERETTE v. DIRECTOR GENERAL OF RAILROADS et al.
• Court: Illinois Supreme Court

306 Ill. 348

137 N.E. 811

LERETTE

v.DIRECTOR GENERAL OF RAILROADS et al.

No. 14908.

Supreme Court of Illinois.

Dec. 19, 1922.

Rehearing Denied Feb. 8, 1923.

Action by Louis Lerette against the Chicago, Burlington & Quincy Railroad Company and the Director General of Railroads. A judgment was had against both defendants, but James C. Davis, Agent of the United States, was substituted as sole defendant, and judgment entered against him in the Appellate Court. From the judgment against him, such Agent, on grant of certificate of importance, appeals.

Affirmed.Appeal from Appellate Court, Second District, on Appeal from Circuit Court, LaSalle County; Joe A. Davis, Judge.

H. L. Richolson, of Ottawa, and Boys, Osborn & Griggs, of Streator, for appellant.

L. O. Browne, of Ottawa, Coleman & Coleman, of LaSalle, and Butters & Clark, of Ottawa, for appellee.

THOMPSON, C. J.

About 1 o'clock a. m. Sunday, September 29, 1918, Louis Lerette, appellee, approached the tracks of the Chicago, Burlington & Quincy Railroad Company at Creve Coeur street, in the city of LaSalle. There are four tracks at this point. The north track is a switch track, known as the ‘house track.’ When appellee reached the crossing, he found the house track blocked by a long string of freight cars. There were cars as far as he could see in each direction. He waited for a few minutes, but the cars did not move. Then he sat down at the side of the street, made, lighted, and smoked a cigerette, and then investigated to see if the string of cars was likely to be moved soon. He had waited for about 20 minutes, and during that time he had not seen or heard an engine and the cars had not moved. This crossing was not used much after midnight, and frequently cars stood upon the crossing from midnight until morning. After satisfying himself that the string of cars was not going to move, appellee began to climb over the bumper between two of the cars. Just as he was getting onto the bumper, the string of cars without warning was jerked suddenly, and appellee fell backwards, and the wheel ran over his right leg, crushing it so that it had to be amputated. He brought his action against the Director Generalof Railroads and the Chicago, Burlington & Quincy Railroad Company to recover damages for his injuries. Both defendants filed pleas of not guilty. The agent of the United States appeared and defended in the place of the Director General, his plea reading:

‘And the defendant, John Barton Payne, Director General of Railroads, as agent under section 206 of the Transportation Act of 1920, one of the defendants in the above cause, comes and defends,’ etc.

The cause was called for trial March 28, 1921, and thereafter, a verdict for $18,000 was returned against both defendants, judgment was entered on the verdict, and an appeal taken to the Appellate Court for the Second District February 27, 1922. While the cause was pending in the Appellate Court, James C. Davis, who succeeded Payne, as Agent of the United States, was substituted as sole defendant, and judgment was entered against him. A certificate of importance has been granted, and this appeal is prosecuted to review the judgment of the Appellate Court.

Counsel for appellant have argued at great length that the accident did not occur at the public crossing; that the string of cars did not block the crossing longer than five or six minutes; that the automatic bell on the engine was ringing during the entire time the cars were on the crossing; that the testimony of appellee is not worthy of belief; that the great preponderance of the evidence directly contradicts the testimony of appellee; that the verdict of the jury is against the preponderance of the evidence; and that the damages awarded are the result of passion and prejudice, are not supported by the evidence, and are excessive. Whatever view we might entertain of these questions if it were our province to review them, it is sufficient to say that they are all questions of fact and that the finding of the Appellate Court on questions of fact is conclusive. The only question we are permitted to consider is whether there is any evidence which fairly and reasonably tends to prove the allegations of the declaration. Primarily it is a question for the trial court whether the evidence, with all the legitimate and natural inferences to be drawn therefrom, is sufficient, if credited, to sustain a verdict. The question of the weight to be given the testimony of witnesses is a question for the jury. The action of the jury and the trial court on controverted questions of fact is open for review in the Appellate Court. Whatever finding of fact is made by the Appellate Court is conclusive if there is any evidence in the record fairly tending to support that finding.

[6] Appellant contends that appellee in his attempt to pass between the cars by climbing over the bumper was violating section 17 of the act relating to the operation of railroads (Hurd's Rev. St. 1921, c. 114, § 79) and was guilty of contributory negligence, and that this contributory negligence was the proximate cause of the injury. The facts as found by the circuit court and the Appellate Court established that those operating the train violated section 14 of the same act (section 77) by obstructing Creve Coeur street, a public highway, by leaving the cars across the street more than 10 minutes, and section 7 (section 70) by starting the train within the city of LaSalle without ringing a bell or sounding a whistle a reasonable time before starting. 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 that plaintiff was violating a law at the time he was injured ought not to bar his right to recover, any more than the fact that defendant was violating a law at the time plaintiff was injured ought to conclusively establish plaintiff's right to recover. Where the defense is that plaintiff's unlawful conduct at the time of the accident was the proximate cause of the accident, the difficult question presented for determination is whether the unlawful conduct was a direct and proximate cause contributing, with others, to the injury, or whether it was a mere condition of it. The mere fact that plaintiff 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. Star Brewery Co. v. Hauck, 222 Ill. 348, 78 N. E. 827,113 Am. St. Rep. 420;Graham v. Hagmann, 270 Ill. 252, 110 N. E. 337;Ensley Mercantile Co. v. Otwell, 142 Ala. 575, 38 South. 839,4 Ann. Cas. 512;Monroe v. Hartford Street Railway Co., 76 Conn. 201, 56 Atl. 498. In determining whether the unlawful conduct of plaintiff will bar his right to recover, there must be kept in mind the distinction between that which directly and proximately produces, or helps to produce, the result as an efficient cause, and that which is a necessary condition or attendant circumstance of it. If the illegal act is a mere condition which made it possible for the accident to occur, but is in itself no part of the accident, it will not bar recovery. It is, of course, an essential condition of most accidents that the injured party be where he was at the time he was in order for the injury to occur, and the fact that he would not have been there if he had not been violating the law is not, in itself, a defense. Newcomb v. Boston Protective Department, 146 Mass. 596, 16 N. E. 555,4 Am. St. Rep. 354;Berry v. Sugar Notch Borough, 191 Pa. 345, 43 Atl. 240;Tackett v. Taylor County, 123 Iowa, 149, 98 N. W. 730. Granting, but not deciding, that appellee's act in climbing through the string of cars, under the circumstances, was an illegal act, it is still a question of fact whether this illegal act was the proximate cause of the injury. Lake Erie & Western Railroad Co. v. Mackey...