Partlow v. Illinois Cent. R. Co.

• Decision Date: 02 April 1894
• Citation: 150 Ill. 321,37 N.E. 663
• Parties: PARTLOW v. ILLINOIS CENT. R. CO.
• Court: Illinois Supreme Court

150 Ill. 321

37 N.E. 663

PARTLOW

v.ILLINOIS CENT. R. CO.¹

Supreme Court of Illinois.

April 2, 1894.

Error to appellate court, third district.

Action on the case by William Partlow against the Illinois Central Railroad Company. Defendant obtained judgment, which was affirmed by the appellate court. Plaintiff brings error. Affirmed.

James W. Craig, for plaintiff in error.

Horace S. Clark, for defendant in error.

CRAIG, J.

This was an action brought by William Partlow, administrator of the estate of William F. Partlow, deceased, against the Illinois Central Railroad Company, to recover damages resulting from the death of William F. Partlow, a son of the plaintiff, which occurred at a railroad crossing in the village of Humbolt, by a collision of a wagon and team of horses with a passenger train of the railroad company. On a trial of the cause in the circuit court the jury found the defendant not guilty, the court rendered judgment on the verdict, and that judgment was affirmed in the appellate court.

It appears from the evidence that the village of Humbolt contains about 300 inhabitants. The railroad runs north and south through the village, and the highway upon which the deceased was driving runs east and west. A short time before 7 o'clock in the evening on the 12th day of November, 1891, the vestibule passenger train of the Illinois Central Railroad was running through the village of Humbolt at a speed of from 40 to 50 miles an hour. Some of the witnesses place the speed at 40 miles an hour, some at 45 miles, and some at 50. This train was known as a fast train, and made no stop at Humbolt. On the evening in question the deceased was riding in a twohorse wagon with Hushong, his brother-in-law. They were approaching the crossing from the west, while the train was coming from the north. Hushong was driving. The horses were both blind. The witnesses all agree that as the train approached the village, and at the crossing, a quarter of a mile north of where the collision occurred, the whistle was sounded; and there is also evidence that the bell was ringing and the whistle was sounded as the train came to the crossing where the accident happened. The deceased and Hushong did not, however, discover the train until they reached the crossing. Whether the team was on the track when the collision occurred, or whether it was driven against the engine as the train approached, is left in doubt from the evidence. The horses, wagon, and the two parties were, however, all found, after the accident, on the west side of the track, which would seem to indicate that the team was driven against the engine. The court instructed the jury to make special findings, and under the instructions the jury found that the deceased was not exercising reasonable care for his own safety at the time he was killed; that the whistle was sounded at least 80 rods before reaching the crossing where the accident occurred; that the bell was rung and the whistle sounded from a distance of 80 rods from the crossing at which the accident occurred, and kept ringing until such crossing was reached; that, if the deceased had listened before the approach of said train, he could have heard it in time to have avoided the accident. To the seventh interrogatory the jury answered as follows: ‘What negligence or want of care, if any, was there on the part of the employes of the railroad company contributing to the accident?’ Answer. ‘From the evidence, none.’ The eighth was, ‘Had the train been running at a less speed would the accident have occurred?’ and the ninth, ‘If the train had been running at a greater speed, would the accident have occurred?’-to both of which the jury answered that they could not tell. The jury also found if the deceased had listened before the approach of the train he could have heard, and in time have avoided the accident; that he did not listen to ascertain if there was a train approaching.

On the trial the president of the village was called as a witness, and he was asked if he had ever directed the marshal to notify the railroad company about the fast running of the train through the town. The evidence was objected to, and the court held that it was not admissible, and this ruling is relied upon as error. The town of Humbolt, if incorporated, had the right to regulate the speed of trains in the incorporated limits of the town by ordinance. But until the town had taken action by ordinance the president had no authority, through the marshal or otherewise, to regulate or control the action of the railroad company; and any direction he may have given the marshal, or any notice the marshal may have given the railroad company, could have no bearing on this case.

Objection is made to the following instruction given on behalf of the...