Mobile & O.R. Co. v. Davis

• Decision Date: 31 October 1889
• Citation: 22 N.E. 850,130 Ill. 146
• Parties: MOBILE & O. R. CO. v. DAVIS.
• Court: Illinois Supreme Court

130 Ill. 146

22 N.E. 850

MOBILE & O. R. CO.

v.DAVIS.¹

Supreme Court of Illinois.

Oct. 31, 1889.

Appeal from appellate court, fourth district.

Lansden & Leek, for appellant.

Wm. Winkelmann, for appellee.

MAGRUDER, J.

This is an action on the case, brought in the circuit court of Monroe county by the appellee against the appellant company, to recover damages for personal injuries, and for injuries to personal property, as hereafter stated. The trial below resulted in verdict and judgment in favor of the plaintiff, and the appellate court has affirmed the judgment of the circuit court. 24 Ill. App. 250. The case is brought here by appeal from the appellate court.

The declaration avers, in substance, that on June 15, 1886, the plaintiff was riding in his wagon, drawn by a pair of mules, along the public highway from the town of Columbia, in Monroe county, to the town of Centerville, in St. Clair county, and, while crossing the railway track of the defendant at the point where such track crosses the highway in the incorporated town of Columbia, his team was struck by a passing train; that plaintiff was thrown from the wagon, and received severe bodily injury; that the wagon was so broken and injured as to be useless; that one of the mules was killed, and the other had one of his legs broken, etc.; that plaintiff was using all reasonable care and diligence to avoid an accident; that the injuries resulted from the negligence and carelessness of the servants of the defendant in control of the locomotive and train, in not ringing a bell or blowing a whistle at a distance of at least 80 rods from the crossing of the highway, and in not continuing such ringing or whistling until the highway was reached.

1. It is claimed that the charge of a failure to ring a bell or blow a whistle is not sustained by the evidence, and that the plaintiff was guilty of a want of ordinary care. These are questions of fact, and we cannot consider them.

2. The trial court was requested by the defendant to instruct the jury that section 6 of an ‘Act in relation to fencing and operating railroads,’ approved March 31, 1874, (Starr & C. St. c. 114, § 68, p. 1927,) does not applyto the crossing of railroads with streets within the corporate limits of a city or town; ‘and that if it should appear from the evidence that the Centerville road is a street in the town of Columbia, and that the crossing in question is within its corporate limits, then this statute has no application to the case at bar.’ The court refused to give the instruction, and such refusal is assigned as error. Section 6 is as follows: ‘Every railroad corporation shall cause a bell of at least thirty pounds' weight and a steam-whistle [to be] placed and kept on each locomotive engine, and shall cause the same to be rung or whistled, by the engineer or fireman, at the distance of at least eighty rods from the place where the railroad crosses or intersects any public highway, and shall be kept ringing or whistling until such highway is reached.’ [Rev. St. Ill. Ed. 1889, c. 114, § 68.] The words ‘any public highway,’ as here used, are not limited, in their signification, to the common public roads in the country, but their meaning is broad enough to include streets and roads in incorporated cities and towns. Shearman and Redfield, in their work on the Law of Negligence, (volume 2, § 333, 4th Ed.) say: ‘The term ‘highway’ is generic, inclusive of all public ways, and means a public road which every person, whether an inhabitant or a stranger, has a right to use for passage and traffic. The term will therefore include streets in cities, footways or sidewalks, turnpikes, plank-roads, and bridges.' The statement of the text-writers is sustained by numerous authorities. To the same effect, also, are State v. Mathis, 21 Ind. 278;City of Detroit v. Blackeby, 21 Mich. 84;Jones v. Inhabitants of Andover, 6 Pick. 58;Davis v. Smith, 130 Mass. 113;State v. Wilkinson, 2 Vt. 480. In the latter case the supreme court of Vermont say: ‘A common street and public highway are the same, and any way, which is common to all the people, may be called a ‘highway.”

In Railroad Co. v. Dunn, 78 Ill. 197, the precise question here discussed did not arise; but it was held that the failure to ring a bell or blow a whistle, as required by this statute, was an act of negligence on the part of a railroad company when one of its trains was crossing a street in the city of East St. Louis. In paragraph 16 of section 1 of ‘An act to revise the law in relation to the construction of the statute,’ approved March 5, 1874, (Starr & C. St. c. 131, p. 2331,) occurs the following definition: ‘The word ‘highway,’ ‘road,’ or ‘street’ may include any road laid out by the authority of the United States, or of this state, or of any town or county of this state, and all bridges upon the same.' [Rev. St. Ill. c. 131, § 1.] In the case at bar, the Centerville road, where the appellee and his property were injured, appears to have been laid out by the authority of the town of Columbia, and is therefore embraced within the statutory meaning of the word ‘highway.’ The case in Mississippi, to which counsel refers us, is opposed to the weight of authority upon this subject. The cases cited from Maine are based upon a statute in that state which restricts the meaning of the word ‘highway’ to county roads and ‘county ways,’ and excludes ‘town ways.’ These cases have no application here. We are of the opinion that there was no error in refusing the instruction asked for.

3. The next error assigned is the refusal of the circuit court to grant a new trial for reasons set forth in certain affidavits presented in support of the motion for a new trial. The following are the affidavits: ‘Personally appeared before me, the undersigned, clerk of the circuit court of Monroe county, Charles E. Weller, who, being duly sworn, says that he acted as stenographer in reporting the testimony in the above case; that upon the adjournment of the court, at about half past nine in the evening, at the conclusion of the testimony in the case, he stepped into a saloon immediately opposite the court-house, in the town of Waterloo, and there saw the plaintiff's attorney, William Winkleman, standing at the counter of the saloon with one of the jurors engaged in trying the said cause, Thomas Allen by name, knocking their glasses together as though in token of pledge, and then draining their glasses of beer.’ ‘W. H. Horine, Jr., of lawful age, being duly sworn, says that he is the state's attorney for said county of Monroe; that whilst the trial of the above case was in progress, and after the conclusion of the testimony in the case, but before the closing arguments in said cause, about 9:30 P. M. of March 29, 1888, he saw counsel for plaintiff in said cause, William Winkleman, in the saloon on the ground floor of the City Hotel, opposite the court-house, in the town of Waterloo, drinking beer with one of the jurors then engaged in trying the above cause, Thomas Allen by name, knocking their glasses together as if drinking to each other's health, or otherwise pledging themselves.’ ‘Albert J. Kunster, being first duly sworn, of lawful age, says he is the proprietor of the drug store adjoining the City Hotel, in Waterloo, opposite the court-house; that about half past nine P. M. of March 29, 1888, he was in the saloon attached to said hotel, and saw William Winkleman, the attorney, and Thomas Allen, a juror, standing together at the...