Peoria v. Reynolds

• Decision Date: 31 January 1878
• Parties: PEORIA, PEKIN AND JACKSONVILLE RAILROAD CO.v.HENRY REYNOLDS.
• Court: Illinois Supreme Court

88 Ill. 418

1878 WL 9896 (Ill.)

PEORIA, PEKIN AND JACKSONVILLE RAILROAD CO.

v.HENRY REYNOLDS.

Supreme Court of Illinois.

January Term, 1878.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Tazewell county; the Hon. JOHN BURNS, Judge, presiding. Messrs. DEARBORN & CAMPBELL, Mr. S. P. SHOPE, and Mr. GEORGE B. FOSTER, for the appellants.

Messrs. ROBERTS & GREEN, and Messrs. COHRS & RIDER, for the appellee.

Mr. JUSTICE BREESE delivered the opinion of the Court:

This was an action on the case, brought to the Tazewell circuit court, by Henry Reynolds, plaintiff, and against the Peoria, Pekin and Jacksonville Railroad Company, defendants. The declaration contained two counts, in which was alleged the duty of the defendants to keep their track in good repair, and to maintain the rails thereon sound and in good condition; that this duty was neglected, by reason whereof the defendants' track, between Virginia and Pekin, was out of repair and unsafe, and by reason of such neglect, and permitting and allowing a rail on the track to be out of repair, and broken and unsafe, the car in which plaintiff as a passenger for hire was being carried was thrown from the track, and the plaintiff injured. In the other count, the defendants are charged with a want of care in running the train, and want of care in keeping the track in good repair, by reason whereof the car was thrown from the track. There was also a stipulation that the parties would go to trial as on counts charging the injury to have been occasioned by defective equipments in the method of applying the brakes. To all which the defendants pleaded not guilty, and there was a trial by jury, who returned a verdict for the plaintiff. A motion for a new trial having been denied, judgment was entered on the verdict, to reverse which the defendants appeal, and make various points.

The leading facts are, briefly, that on the night of February 20, 1875, appellee purchased a ticket from Virginia to Pekin, on appellants' road. The distance between these points is eighty-six miles, with several intervening stations. Proceeding north, the southern train was met at Bath, which had just passed over the road. A short distance north of Bath, the car on which was appellee was thrown from the track, down an embankment, turned bottom side up, and the appellee injured. The presumption, on the occurrence of such an accident, may be either that the track was out of order, or the train badly managed, or both causes combined to produce it, and the onus is on the company to show they were not negligent in any respect. The charge here is, the bad condition of the track and want of care in running the train.

A large volume of testimony was taken on both sides, which we have read with care, and we are satisfied the presumption has not been removed by any evidence produced by appellants, or by anything to be found in the record. We understand appellants as admitting the accident was caused by a broken rail, and as claiming that the breakage was caused by the unprecedented cold of that month.

The evidence will not permit us to come to this conclusion. There is some conflict in the testimony on this point, but giving to it all the force appellants claim, it falls far short of...