Neice v. Chicago & A.R. Co.

• Decision Date: 21 June 1912
• Court: Illinois Supreme Court
• Parties: NEICE v. CHICAGO & A. R. CO. et al.

254 Ill. 595

98 N.E. 989

NEICE

v.CHICAGO & A. R. CO. et al.

Supreme Court of Illinois.

June 21, 1912.

Error to Appellate Court, Fourth District, on Appeal from City Court of Granite City; J. M. Bandy, Judge.

Action by Maud Neice, as administratrix, against the Chicago & Alton Railroad Company and others. A judgment for plaintiff was affirmed by the Appellate Court, and defendants bring error. Affirmed.Warnock, Williamson & Burroughs (J. A. Connell, of counsel), for plaintiffs in error.

D. J. Sullivan, for defendant in error.

CARTWRIGHT, J.

The defendant in error, Maud Neice, administratrix of her deceased husband, L. B. Neice, recovered a judgment in the city court of Granite City against the plaintiffs in error, the Chicago & Alton Railroad Company and the Chicago, Burlington & Quincy Railroad Company, for $3,500 damages suffered by her, as widow, by the death of her husband, which was caused by a train of the Chicago, Burlington & Quincy Railroad Company on March 8, 1910, and the Appellate Court for the Fourth District affirmed the judgment. A writ of certiorari was granted to bring the record into this court for review.

At the conclusion of the evidence for the plaintiff the defendants asked the court to direct a verdict of not guilty, and the attorney for the plaintiff then admitted that at the time Neice was killed he was not a passenger, as had been alleged in the declaration, and the declaration was amended by leave of court. When the plaintiff had finished amendingthe declaration and filing additional counts and making the amendments permitted on the trial, the declaration contained six counts, in which it was alleged that Neice was on the platform at the depot of the Chicago & Alton Railroad Company, between the tracks in the city of Venice, where he had gone for the purpose of obtaining information in reference to being carried and to be carried by the Chicago & Alton Railroad Company from the city of Venice to the city of Roodhouse, and that he was struck and killed by an engine of the Chicago, Burlington & Quincy Railroad Company. The first count charged, in general terms, negligent operation of the Burlington train. The second charged negligence in exceeding the speed limit of an ordinance. The third charged negligence in operating the train without a headlight and without blowing a whistle or ringing a bell. The fourth charged negligence in the violation of an ordinance requiring a bright light to be displayed conspicuously on the front end of the train. The fifth (or first additional) count charged the defendant with willfully and wantonly, and in reckless disregard of the safety of persons who might be upon the platform, driving the engine at a dangerous rate of speed without ringing a bell or blowing a whistle and without having a sufficient headlight on the engine. The sixth (or second additional) count made a similar charge of wanton or willful conduct in running the engine past the depot and crosswalk, in the nighttime, at a high rate of speed without a headlight and without ringing a bell or blowing a whistle. The court denied the motion for a directed verdict, and the defendants waived the right to assign error on the ruling by introducing evidence in their own behalf, but renewed the motion at the close of all the evidence, when it was again denied and an exception taken.

The Chicago & Alton Railroad Company maintained a depot in the city of Venice, and on the east side of the depot building there were three tracks, running north and south. The track next to the building was called the running or storage track. The next track belonged to the Alton, and was used for south-bound traffic by the two defendants and the Big Four Railroad Company. The third track belonged to the Big Four Railroad Company, and was used for northbound traffic by that company and the defendants. There was a board walk extending east from the depot building across the running track and south-bound track to a platform about 50 feet long, running north and south between the second and third tracks, which were used for traffic. The walk and platform were used in going to and from trains and by persons having business at the depot. On the controverted questions of fact the evidence for the plaintiff to be considered by the court was to the following effect: L. B. Neice was a railroad employé who had worked for the Chicago & Alton Railroad Company at Roodhouse for a number of years and for a short time prior to his death had been a brakeman for the Wabash Railroad Company. He was on a 60 days' leave of absence from the latter company and was looking for a more satisfactory job. His wife was staying at the residence of her parents at Granite City, two or three miles north of Venice. He obtained employment as a car repairer for the Alton at Roodhouse, and on March 8, 1910, came to the place where his wife was staying and helped to pack up their goods, which were stored there, intending to move to Roodhouse. The usual supper hour was between 5 and 6 o'clock, and it was somewhat earlier that evening. Some time before 6 o'clock he ate his supper, and, taking a railroad lantern, started for Venice. It is uncertain at what time he reached the depot at Venice; but he made inquiries there as to who was the conductor of the Chicago & Alton freight train which was due from the south between 7:30 and 8 o'clock p. m. and asked if it would stop at Venice. He was told that it was not customary to stop, but the train would stop because they had a stockman to pick up. The Alton kept a ticket agent at its depot, whose hours were from 6:40 a. m. to 7:07 p. m., and he was absent from the depot at the noon hour and at his supper hour, which was from 6 to 6:40. The ticket office was closed and the lights put out at about 7:20; but the waiting room was left open, and that part of the office used by the yardmen was also open, and the depot grounds were dark. Freight trains did not carry passengers, and, besides the train crew, carried none but men in charge of stock and employés who had passes stamped on the face, ‘Good on freight trains.’ There was no evidence that Neice had any transportation entitling him to ride on the freight train, and he made no inquiry for a ticket. The freight train on the east track reached the station between 7:30 and 8 o'clock. John Pease, a stockman who had stock on the train which was loaded at East St. Louis, had missed the train there and had come to Venice on an interurban car. The trainmen had been notified to stop at Venice and take him aboard, and he had been staying about the waiting room for an hour or more. As the train approached, he walked east from the depot across the walk to the platform between the second and third tracks. Neice followed him and asked if the train was going to pick up anything, and Pease said nothing he knew of, except himself. Pease asked Neice if he was going up, and he said he would like to go. The train was then passing them, and before it came to a stop a freight train of the Burlington, consisting of an engine, freight car, and caboose, ran past the platform, going south, at a rate of between 25 and 40 miles an hour without any headlight and without ringing a bell or blowing a whistle. The end of the pilot beam struck Neice and threw him 25 feet, causing his death. Neither the fireman nor engineer saw Neice, although they testified that they were in their places, and the fireman said he was sitting on the seat on the left side of the cab-the side Neice was on. The train did not stop, and the fireman and engineer did not know until the next morning that there had been an accident. There was an ordinance of the city of Venice prohibiting the running of passenger trains at a greater rate of speed than 10 miles an hour and freight trains at a greater rate than 6 miles an hour, and requiring a bright...