New York, C. & St. L. Ry. Co. v. Luebeck

• Decision Date: 11 October 1895
• Citation: 157 Ill. 595,41 N.E. 897
• Court: Illinois Supreme Court
• Parties: NEW YORK, C. & ST. L. RY. CO. v. LUEBECK.

157 Ill. 595

41 N.E. 897

NEW YORK, C. & ST. L. RY. CO.

v.LUEBECK.¹

Supreme Court of Illinois.

Oct. 11, 1895.

Appeal from appellate court, First district.

Action on the case by Frederick Luebeck, by his next friend, against the New York, Chicago & St. Louis Railway Company. Plaintiff obtained judgment, which was affirmed by the appellate court. 54 Ill. App. 551. Defendant appeals. Affirmed.Walker & Eddy, for appellant.

Moran, Kraus & Mayer, for appellee.

This was an action by appellee, by his next friend, begun in the circuit court of Cook county, against appellant, for injuries alleged to have been received from being struck by one of the freight trains of appellant at the Fifty-Third street crossing in the town of Lake. The declaration contains three counts. The first charges negligence and improper conduct of defendant and its servants in the management of its train; the second, a failure to ring a bell or blow a whistle, in compliance with the statute; and the third, the disregarding of an ordinance of the town of Lake limiting the speed of Freight trains to six miles per hour. Fifty-Third street extends east and west, and crossing the road at right angles, north and south, are seven railroad tracks, none of which belong to appellant, but over one or more of which they had the right to and did operate their trains as far out as Grand crossing. The east track of the seven was a side track, on which at the time of the accident were standing a number of freight cars, projecting north, and extending south part of the way over Fifty-Third street. On the third track from the east, a train of another company was moving north, blocking the crossing; and on the fourth track a train belonging to appellant was running south. Appellee was struck on the second track from the east by one of the engines of appellant's freight trains running south, tender forward. The accident occurred in May, § 889, at which time appellee was about 16 years old; but the trial in the lower court was more than 4 years afterwards, when he was past 20. The residence of appellee and place of business of his brother were located east of the railroad, and the theory of his counsel is that he was proceeding from here west, but some testimony of two trainmen was to the effect that he was going east, when struck. Appellee received no external physical injury. The evidence indicates that the shock or concussion occasioned by the engine striking him left him unconscious, and that he remained so for eight hours, and to some extent in a comatose condition for a week or more. It is alleged that the effect of these injuries, as shown, during the four years elapsing between the accident and the trial, has been to leave him mentally in a condition unfit for the transaction of ordinary business, and to impair his mind. The case was tried in the circuit court, before a jury, resulting in a verdict for plaintiff of $10,000. A motion for a new trial was overruled, and judgment rendered on the verdict. An appeal was prosecuted from this judgment to the appellate court of the First district, where the judgment of the circuit court was affirmed. From this judgment of affirmance the appeal is prosecuted to this court. The errors assigned by appellant as reasons for a reversal are the admission of improper evidence for appellee by the trial court; improper remarks made by counsel for appellee in the argument of the case before the jury; in the giving by the trial court of the second instruction asked and given by the court on behalf of plaintiff; and in the refusal by the court to give the first instruction asked by the defendant below, in which the court was asked to instruct the jury that the evidence offered on behalf of the plaintiff was insufficient to support the plaintiff's case as charged in the declaration. A consideration of these questions necessarily involves in the opinion a more detailed statement of the case.

PHILLIPS, J. (after stating the facts).

One of the errors assigned on the record is that the trial court admitted improper testimony on the part of appellee. Edward Luebeck, a brother of appellee, and whose place of business was east of the railroad tracks, was called as a witness, and asked if he knew where plaintiff was going at the time of the accident. His answer was: ‘Yes; I sent him to get some glass at Wentworth avenue.’ Motion was made by appellant to strike out the answer, but the court permitted it to stand, to which exception was taken by appellant. Three witnesses who observed the accident had testified that appellee was crossing the tracks from east to west, and the evident purpose of this evidence was in corroboration, as witness further stated that it was only about five minutes before the accident occurred that he had sent appellee on an errand. The record shows very clearly that the jury must have fully understood from the testimony of the witness that he did not see the accident, for he so stated. All he knew was that, five minutes before, he had started appellee on an errand which would take him west across these tracks. This evidence was so nearly connected with the accident itself, and a mere fact in corroboration of other direct and positive evidence, that there was no error, under all the circumstances, in the trial court's overruling the motion, as made, to strike out the answer.

The court, over the objection of defendant below, permitted the plaintiff to show the frequency with which trains passed over these tracks, and that there was a train every 20 minutes, although most of them were trains of various other roads. Under the first count of the declaration, this evidence was admissible. It is to be presumed that defendant had knowledge of the running of these trains, and, if they passed in rapid succession, it thereby made this crossing much more dangerous to the public. Even though the numerous other trains were not those of appellant, if they made this crossing more dangerous appellant was bound to exercise a degree of care commensurate with this danger; and it is held to the same degree of care as though it owned the track, and controlled and operated every train run on these tracks. Railroad Co. v. Kanouse, 39 Ill. 272; Railroad Co. v. Ross, 142 Ill. 9, 31 N. E. 412. ‘Where the surrounding circumstances render the crossing especially dangerous to travelers on the highway, as when the line is curved or there are obstructions to the view, it is the duty of the railway to take precautions commensurate to the danger.’ Patt. Ry. Acc. § 170. To the same effect, also, is Railway Co. v. Wallace, 110 Ill. 114. This rule has been followed in this state by holding that it is proper to show that the view at the crossing of the railroad and highway was obstructed by a heavy growth of timber or foliage, even though not on the company's right of way (Railroad Co. v. Siltman, 88 Ill. 529); and also that, in a populous city where many people pass over a crossing, it is proper to show that no flagman was at the crossing, even though no statute or ordinance required one (Railroad Co. v. Lane, 130 Ill. 116, 22 N. E. 513). It was not error, therefore, to permit plaintiff to show as a circumstance that trains were in the habit of passing over this crossing in rapid succession.

Under the assignment of error as to the admission of improper evidence by the trial court, objection is also made to the testimony of certain nonexpert witnesses on the question of the mental impairment of appellee. A number of such witnesses were called, relatives, and persons with whom and for whom appellee had worked. The testimony of such witnesses-people of good common sense-is admissible, and is competent testimony. Rutherford v. Morris, 77 Ill. 397;Morse v. Crawford, 17 Vt....