Peirce v. Walters

• Decision Date: 18 January 1897
• Citation: 45 N.E. 1068,164 Ill. 560
• Parties: PEIRCE et al. v. WALTERS.
• Court: Illinois Supreme Court

164 Ill. 560

45 N.E. 1068

PEIRCE et al.

v.WALTERS.

Supreme Court of Illinois.

Jan. 18, 1897.

Appeal from appellate court, Third district.

Action by George Walters against P. B. F. Peirce, successor to Samuel R. Callaway, late receiver of the Toledo, St. Louis & Kansas City Railway Company, and another. From a judgment of the appellate court affirming a judgment for plaintiff (63 Ill. App. 562), defendants appeal. Affirmed.W. P. Tyler and Charles G. Guenther, for appellants.

Hughes & Hayes and J. W. Craig, for appellee.

This suit was brought by the appellee against appellants in the circuit court of Coles county, to recover damages for a personal injury received by being struck by a locomotive. The accident occurred on a railroad bridge of the company in June, 1893, the road at that time being in the hands of Samuel R. Callaway as receiver. The original declaration was of two counts, charging that the injury resulted from the gross negligence and willful misconduct of the servants of the receiver. On the return day, he appeared and filed his petition and bond for the removal of the case to the United States circuit court for the Southern district of Illinois, but the petition was denied. Afterwards plaintiff amended his declaration, by joining Keep, the engineer in charge of the locomotive at the time of the accident, as a party defendant. On the first day of the next term, Pierce, successor to Callaway as receiver, also filed a second petition for the removal of the cause to the United States court, but it was also denied. After making Keep a party, the declaration was further amended, two additional counts being filed. They each, in substance, aver that, after the engineer Keep and other servants of the defendant in charge of the train saw the plaintiff upon the bridge, they could, by the exercise of ordinary care after becoming aware of his position, have brought the train under control, and avoided striking and injuring him, but negligently failed to do so. The second of these counts also charges that, after seeing him, the defendant Keep and other servants of the defendant receiver willfully and wantonly ran the engine upon him. A plea of not guilty was filed, and a trial by jury resulted in a verdict and judgment for the plaintiff for $2,500. That judgment having been affirmed by the appellate court, this appeal is prosecuted.

WILKIN, J. (after stating the facts).

It is first insisted the court below erred in refusing to transfer the cause to the federal court. That question is not presented by this record for our decision, the bill of exceptions containing no motion for such removal, affidavit, or bond; neither does it appear that any exception was taken to the denial of the motion. Transportation Co. v. Joesting, 89 Ill. 152;Wabash, St. L. & P. Ry. Co. v. People, 106 Ill. 652.

The other errors assigned question the correctness of the decision of the case upon its merits. The declaration proceeds throughout upon the admission that the plaintiff was wrongfully upon the bridge at the time of the accident, and could only recover by proving that the conduct of the defendants was wanton and willful, or that, after discovering his perilous position, they did not exercise ordinary care to avoid the accident. The last two counts are upon the latter theory, and the trial was had upon the issue formed on these counts. Thus, the court instructed the jury, at the instance of the defendants: ‘(9) You are instructed that, if it appears from the evidence in this cause that the plaintiff was a trespasser upon the track or bridge of the defendant receiver at the time he was struck and injured, then said defendant receiver was not required, and the law did not impose any duty whatever upon his engineer, to discover the plaintiff's presence upon the same, but only required him, after he discovered the plaintiff, and had knowledge that he was in a perilous position, to exercise reasonable care and prudence to avoid collision; and if it further appears that the engineer did exercise such care and prudence,-did everything within his power to prevent the train from colliding with said plaintiff after he discovered him,-then your verdict must be for the defendants. (10) The defendants are liable in this case only if the engineer failed to exercise ordinary care to prevent the injury, after he became aware of the danger to which the plaintiff was exposed;...