Newell v. Cleveland, C., C. & St. L. Ry. Co.

• Decision Date: 21 February 1914
• Citation: 261 Ill. 505,104 N.E. 223
• Court: Illinois Supreme Court
• Parties: NEWELL v. CLEVELAND, C., C. & ST. L. RY. CO.

261 Ill. 505

104 N.E. 223

NEWELL

v.CLEVELAND, C., C. & ST. L. RY. CO.

Supreme Court of Illinois.

Feb. 21, 1914.

Error to Appellate Court, Fourth District, on Appeal from Circuit Court, Saline County; A. W. Lewis, Judge.

Action by Josie Newell, administratrix, against the Cleveland, Cincinnati, Chicago & St. Louis Railway Company. From a judgment of the Appellate Division (179 Ill. App. 497) affirming a judgment for plaintiff, defendant brings writ of error. Reversed and remanded.

P. J. Kolb, of Mt. Carmel, and W. F. Scott, of Harrisburg (Bertrand Walker, of Chicago, of counsel), for plaintiff in error.

Sigel Capel and Dorris & Lewis, all of Harrisburg, for defendant in error.

COOKE, C. J.

Defendant in error, as administratrix of the estate of George W. Newell, deceased, brought suit against plaintiff in error in the circuit court of Saline county to recover damages for the death of her intestate.

The first count of the declaration charges that the deceased was walking on Walnut street, in the city of Harrisburg, with due care and caution for his own safety, and, while attempting to cross the railroad tracks of plaintiff in error in said street, the servants of said plaintiff in error so carelessly propelled and ran a locomotive engine upon such tracks upon and against the said George Newell that he was thereby killed. The second and third counts charge failure on the part of plaintiff in error to comply with its statutory duty to ring a bell or sound a whistle before reaching the crossing in question.

The accident occurred on October 2, 1910. No one witnessed it, and there was therefore no direct testimony as to how it occurred. The first knowledge that any one had that Newell had been killed was when his body was found at one end of the planking of the street crossing over the railroad tracks, and his head, which was severed from the body, was found at the other end of the planking. The switch engine of plaintiff in error had just passed over this crossing and was manned by the engineer, fireman, and switching crew, but none of the crew saw the deceased before he was killed.

The jury returned a verdict in favor of the defendant in error for $1,300, upon which judgment was rendered. This judgment was affirmed by the Appellate Court for the Fourth District, and the judgment of the Appellate Court has been brought up for review by writ of certiorari.

The evidence was conflicting as to whether the bell had been rung or the whistle sounded before the switch engine crossed Walnut street, and also as to whether a headlight was displayed from the tender of the engine, which was being propelled backward. Numerous witnesses testified on behalf of plaintiff in error that the deceased was intoxicated at the time of the accident, while some of the witnesses called on behalf of defendant in error testified he was sober at that time. No proof whatever was offered as to any fact or circumstance which would tend to show that the deceased was in the exercise of due care and caution at the time of the accident. At the close of the evidence on behalf of defendant in error, and again at the close of all the evidence, the plaintiff in error asked the court to give a peremptory instruction to find it not guilty. These motions were denied.

The grounds urged for reversal are the action of the court in refusing to direct a verdict, the giving of various instructions on behalf of defendant in error, and the refusal to give a number of instructions asked by plaintiff in error. It is urged that the trial court erred in refusing to direct a verdict for the reason that defendant in error failed to prove (1) that deceased was in the exercise of due care for his own safety at or immediately prior to the time of the accident; (2) that the deceased was struck on the Walnut street crossing; and (3) that the deceased was sober at the time of the accident.

One of the instructions complained of evidently expressed the view of the trial court as to the necessity of proof of the exercise of due care and caution on the part of deceased at the time he was killed, and, no doubt, furnishes the reason for the court's refusal to direct a verdict. That instruction, numbered 10, is as follows: ‘Upon the question of whether George Newell was in the exercise of ordinary care for his own safety when he lost his life, the court instructs you that, if you believe, from the evidence, that he was killed while attempting to cross the railroad track on Walnut street, and that no one saw the accident, then you are warranted in finding, from the well-known instinct which men ordinarily have to try to preserve their lives and not destroy them, that he was in the exercise of ordinary care for his own safety, unless you further believe, from the evidence, that said George Newell was under the influence of intoxicating liquor to such an extent as to render him incapable of exercising such ordinary care or as to make him reckless, or that there were other circumstances indicating a want of such ordinary care.’

[1][2] The allegation in the declaration that the deceased was in the exercise of due care and caution for his own safety at the time of the accident was a necessary and material allegation, and must be proven. As there were no eyewitnesses to the occurrence, this allegation could not be proven by any direct testimony, but it still devolved upon defendant in error to establish to exercise of ordinary care on the part of her intestate by the highest proof of which the case is capable. Collison v. Illinois Central Railroad Co., 239 Ill. 532, 88 N. E. 251;Stollery v. Cicero Street Railway Co., 243 Ill. 290, 90 N. E. 709. The jury were not warranted, under the rules of law as recognized in this state, in presuming, from the mere occurrence of the accident, and in the absence of any direct testimony as to how it occurred, that the deceased was in the exercise of ordinary care for his own safety solely because of the well-known instinct which men ordinarily have to preserve their leves and not destroy them, as was stated in the tenth instruction. We have many times had occasion to discuss the proof necessary to establish the exercise of due care and caution in cases where there are no witnesses to the accident which resulted in death. The rule, as applied to such a situation as is here presented, was accurately stated in ...