Pennsylvania Co. v. Ellett

• Decision Date: 14 May 1890
• Citation: 24 N.E. 559,132 Ill. 654
• Parties: PENNSYLVANIA CO. et al. v. ELLETT.
• Court: Illinois Supreme Court

132 Ill. 654

24 N.E. 559

PENNSYLVANIA CO. et al.

v.ELLETT.¹

Supreme Court of Illinois.

May 14, 1890.

Appeal from appellate court, first district.

Action by Edwin H. Ellett, as administrator of William R. Walkup, deceased, against the Pennsylvania Company and the Union Stock-Yards & Transit Company. Defendants appeal.

Irus Coy and R. P. Hollett, for appellant Union Stock-Yards & Transit company.

Geo. Willard, for appellant Pennsylvania

Company.

Willett & Johnson, (Consider H. Willett, of counsel,) for appellee.

SHOPE, C. J.

This was an action, of case, to recover damages for negligently causing the death of William R. Walkup, and resulted in a verdict against both defendants for $4,500, upon which judgment was rendered. On appeal to the appellate court, this judgment was affirmed. Both defendants appeal to this court, and assign errors.

The errors assigned by the Pennsylvania Company relate solely to the sufficiency of the evidence to sustain the action against that company. We are not at liberty to weigh the evidence, and determine the question of fact. However, by its fifth instruction, which was refused, and which refusal is assigned for error, this appellant asked the trial court to instruct that the evidence was insufficient to warrant a verdict against said company. Upon looking into the record, it is clear there was evidence tending to show that the killing of the deceased resulted from the negligent conduct of the servants of that company in backing its train across Exchange avenue, which the deceased was attempting to cross, and that the deceased was at the time in the exercise of ordinary care for his safety. The casualty occurred immediately in front of the entrance gates of the Union Stock-Yards. At that point the Union Stock-Yards & Transit Company had four railroad tracks, which from 5,000 to 10,000 people passed over daily in approaching and leaving the stock-yards. These tracks, running parallel north and south, are about four feet apart. Near 5 o'clock of the afternoon of February 14, 1887, the deceased, with a number of other persons, came out of the stock-yards gates, intending to cross these tracks on Exchange avenue, but was stopped by a freight train going north on the third track. Pausing until this train passed, the deceased, who was in the lead, stepped immediately behind the last car on the fourth track, and was instantly struck and killed by the train of the Pennsylvania Company, backing south at the rate of about seven miles an hour. There was abundant evidence, if the jury believed it to be true, from which they might find that no warning whatever was given of the approach of the defendant's train, and that no one was on the rear of the backing train to give warning to persons about to cross the track. There was conflict in the evidence in respect of some of the matters adverted to; but, there being evidence tending to sustain the plaintiff's case, the instruction was properly refused. The fact is, therefore, to be treated as conclusively settled that the Pennsylvania Company was guilty of negligence causing the death of plaintiff's intestate, and that he was in the exercise of due and proper care. As already said, Exchange avenue is used as the ordinary and usual mode of reaching the main entrance to the Union Stock-Yards. This entrance is an arched way, with one large and two small gates, and from thence east, across these tracks, is a planked crossing ‘about 30 or 40 feet in width, which is used in common by persons on foot, and those on horseback, and those in carriages.’ The deceased was on this walk or crossing, at which a watchman was kept by the stock-yards company, but who failed to give notice of this backing train. It was for the jury to say whether, in view of all the circumstances shown, the deceased exercised ordinary care for his own safety; and, having found that he did, and that this appellant was negligent, and that finding of fact having been approved on the trial by the appellate court, it is not here open for review.

But it is insisted that, whatever the liability of the Pennsylvania Company may be, the stock-yards company is not liable, and that the court erred in overruling its motion for new trial, and in arrest of judgment. It is said there is no charge in the declaration that this appellant or its servants were guilty of negligence, and, negligence being the gist of this action, no recovery could properly be had without it was alleged and proved. Without pausing to determine whether there are not sufficient allegations of negligence in the declaration to charge the stock-yards company, it will be observed that it is alleged that that company owned and used the four railroad tracks before mentioned, and that the Pennsylvania Company, ‘having control and occupation of said railroad tracks, and also of a certain locomotive engine attached to a train of cars,’ negligently managed and operated the same, whereby the plaintiff's intestate was killed, etc. The charge of negligence against the Pennsylvania Company is confessedly ample. The law has become settled in this state, by an unbroken line of decisions, that the grant of a franchise giving the right to build, own, and operate a railway carries with it the duty to so use the property, and manage and control the railroad, as to do no unnecessary damage to the person or property of others; and, where injury results from the negligence or unlawful operation of the railroad, whether by the corporation to which the franchise is granted, or by another corporation, or by individuals whom the owner authorizes or permits to use its tracks, the company owning the railway and franchise will be liable. Lesher v. Navigation Co., 14 Ill. 85; Railway Co. v. McCarthy, 20 Ill. 385; Railway Co. v. Dunbar, Id. 623; Railroad Co. v. Finnigan, 21 Ill. 646; Railroad Co. v. Kanouse, 39 Ill. 272;Railway Co. v. Rumbold, 40 Ill. 143; Railroad Co. v. Lane, 83 Ill. 448;Railway Co. v. Campbell, 86 Ill. 443; Railroad Co. v. Shacklet, 105 Ill. 364;Balsley v. Railroad Co., 119 Ill. 68, 8 N. E. Rep. 859.

While the company guilty of the negligence-in this case, the Pennsylvania Company-will be liable for the damages resulting therefrom, the owner of the railroad, to whom is granted the control and management of it, will also be liable. The public may look for indemnity for injury resulting from the wrongful or unlawful operation of the road to that corporation to which they have granted the franchise, and thus delegated a portion of the public service; and for this purpose the company whom it permits to use its tracks, and its servants and employes, will be regarded as the servants and agents of the owner's company. Authorities supra; Singleton v. Railroad Co., 70 Ga. 464; Nelson v. Railroad Co., 26 Vt. 717. It follows, therefore, that no other negligence than that of the company or corporation permitted or authorized by the owner company to use its railway need be alleged or proved to fix the liability of the owner.

The law is conceded to...