Opp v. Pryor

• Decision Date: 23 October 1920
• Docket Number: No. 13338.,13338.
• Parties: OPP v. PRYOR.
• Court: Illinois Supreme Court

294 Ill. 538

128 N.E. 580

OPP

v.PRYOR.

No. 13338.

Supreme Court of Illinois.

Oct. 23, 1920.

Error to Second Branch Appellate Court, First District, on Error to Superior Court, Cook County; M. L. McKinley, Judge.

Action by E. Arline Opp against Edward B. Pryor, receiver. There was a judgment for plaintiff, and defendant brings error.

Reversed and cause remanded.William Sherman Hay and Charles Le Roy Brown, both of Chicago, for plaintiff in error.

Leo Koretz and John A. Irrmann, both of Chicago, for defendant in error.

CARTWRIGHT, C. J.

At about 9:30 in the evening of July 17, 1915, there was a collision between a freight train of the Wabash Railroad Company, which was being pushed by an engine in a switching operation, and an automobile driven by Ethel Shambaugh, in which the defendant in error, with three other women besides the driver, was taking a ride in city of Lafayette, Ind., and the defendant in error, being injured, brought her suit in the superior court of Cook county in this state against the plaintiff in error, Edward B. Pryor, receiver of the railroad company, and recovered a judgment for $5,000, which was affirmed by the Appellate Court for the First District. The record is in this court by writ of error on the allowance of a petition for a writ of certiorari to the Appellate Court.

A question as to the jurisdiction of the superior court is raised. The action was personal for a tort, and might be maintained in any jurisdiction in which the defendant could be legally served with process, unless the cause of action was prohibited by law or public policy, or against morals, natural justice, or the general interest of the citizens of the state of the forum. Chicago & Eastern Illinois Railroad Co. v. Rouse, 178 Ill. 132, 52 N. E. 951,44 L. R. A. 410; 5 R. C. L. 1035.

A specific objection to the exercise of jurisdiction in this instance is that it was neither alleged in the declaration nor proved on the trial that the court appointing the The possession of the property of the railroad company was the possession of that court, but the prosecution of the suit against the receiver would not in any manner disturb his possession as an officer of the court, and the objection that leave of court was not first obtained before bringing the suit was not raised in any way in the trial court, and was therefore waived. Mulcahey v. Strauss, 151 Ill. 70, 37 N. E. 702.

At the conclusion of the evidence the defendant moved the court to direct a verdict of not guilty, and the court overruled the motion.

The collision occurred at the crossing of South Ninth street, which runs north and south and is crossed by double tracks of the railroad company running northeasterly. The train came from the southwest, and consisted of seven box cars next to the engine and two loaded coal cars in front, and the first loaded coal car struck the automobile. The declaration consisted of three counts, the first of which charged general negligence in managing the engine and train of cars. The second count charged that there was no light burning at the rear end of the engine and train of cars, and that there was no bell ringing or any warning or notice given. The third count charged that no watchman or gates were provided at the crossing.

The cause of action accrued in the state of Indiana, and the right to recover depended on the law of that state. In the absence of proof it is presumed that the law of Indiana is the common law as administered by the courts of this state, and statutes and local usages of another state must be alleged and proved as facts. Crouch v. Hall, 15 Ill. 263;Tinkler v. Cox, 68 Ill. 119;Schlee v. Guckenheimer, 179 Ill. 593, 54 N. E. 302;Hogue v. Steel, 207 Ill. 340,61 N. E. 931;Scholten v. Barber 217 Ill. 148, 75 N. E. 460;Forsyth v. Barnes, 228 Ill. 326, 81 N. E. 1028,10 Ann. Cas. 710;Woodbury v. United States Casualty Co., 284 Ill. 227, 120 N. E. 8. If the common law is differently construed or applied in another state, that fact must be alleged and proved. No statute of the state of Indiana or municipal ordinance of the city of Lafayette was alleged in the declaration, and the only evidence of a local law was that there was an ordinance of the city prohibiting the blowing of a steam whistle in the operation of trains in the nighttime.

There was therefore no statutory duty to maintain a watchman or gates at the crossing, and neither by custom nor judicial decision has it ever been held that it is the general duty of railroad companies to maintain watchmen or gates at public crossings. There is a common-law duty to exercise such care and use such precausions as will enable the traveler on the highway, if he exercises ordinary care, to ascertain in the nighttime the approach of an engine backing cars over a street crossing. There may be special conditions creating special dangers that might require a watchman or gates at a street crossing, as in the case of such crossing in a populous city in constant use by the public, but there was neither allegation nor proof of any such condition at this crossing in a residence neighborhood, so that no cause of action was proved under the third count.

Under the first count, which charged general negligence, and the second, which charged that no light was burning and no bell or warning or notice was given of the approach of the train, the evidence was as follows: The crew of the freight train was made up of Bell, the engineer, McKay, the fireman, Driscoll, the conductor, and Kassen and Kline, the switchmen. The engineer was on the right side of the engine, looking back. The head brakeman, Kassen, was sitting on top of the first car next to the engine. Driscoll, the conductor, was sitting on the third car from the northeast end, which was a box car, and Kline, the other brakeman, was sitting on the northeast end of the northeast coal car nearest the crossing. Kline, Driscoll, and Kassen were all carrying lighted lanterns with white lights. The train was going about 5 miles an hour and was under control, and was stopped almost immediately after the collision, with one car past the crossing. South street runs east and west and crosses South Ninth street at right angles about 150 feet north of the crossing. At the intersection of these streets there was an electric arc light, and a similar light about 350 feet south of the crossing and a red signal light above the crossing, not giving much light, but as a sign of the crossing. These facts were not contradicted. Kline, on the northeast corner of the coal car approaching the crossing, saw the automobile, and testified that he waived his lantern from side to side as a warning, and when a collision was imminent he signaled the engineer to stop. The signal was repeated by Driscoll and Kassen, and the engineer saw the signals and stopped the train. Kline also said that he whistled by putting fingers of each hand in his mouth and blowing, on account of the ordinance against the steam whistle at night.

The plaintiff was sitting in the front seat of the automobile at the right of Ethel Shambaugh, who was driving. Belle Wood, Grace Wood, and Mrs. Shambaugh, the mother of the driver, sat on the rear seat. The automobile turned into South Ninth street at the second street crossing north, and was driven south toward the railroad tracks. Ethel Shambaugh said the speed varied from 8 to 12 miles an hour, and a witness who at the time was driving an automobile about 60 feet back of the one in question thought the speed was from 10 to 15 miles an hour, and possibly a little faster, and the witnesses for the defendant estimated the speed at from 15 to 20 miles an hour, and one witness put it as high as 30 miles an hour. The automobile was on the west side of the street, and shortly before reaching the railroad tracks it was turned in the street railway track in the center of the street. When within 50 feet of the crossing there was no substantial or material obstruction to the view, and the plaintiff was sitting on the side toward the approaching train, which was on the southerly track. The automobile passed over the northerly track,...