Petro v. Hines

• Decision Date: 22 October 1921
• Docket Number: No. 13807.,13807.
• Citation: 132 N.E. 462,299 Ill. 236
• Parties: PETRO v. HINES, Director General of Railroads.
• Court: Illinois Supreme Court

299 Ill. 236

132 N.E. 462

PETRO

v.HINES, Director General of Railroads.

No. 13807.

Supreme Court of Illinois.

Oct. 22, 1921.

Action by Daisy Petro against Walker D. Hines, Director General of Railroads. Judgment for plaintiff, affirmed by the Appellate Court (219 Ill. App. 635), and defendant appeals; a certificate of importance being granted.

Judgments of the Appellate and circuit court reversed and cause remanded.

Appeal from Appellate Court, Second District, on Error to Circuit Court, Kankakee County; Arthur W. De Selm, Judge.

W. R. Hunter and C. M. Clay Buntain, both of Kankakee, for appellant.

Augustine J. Bowe and William J. Bowe, both of Chicago, for appellee.

THOMPSON, J.

April 1, 1918, appellant, Walker D. Hines, as Director General of Railroads was operating the Chicago & Eastern Illinois Railroad from Chicago south through the state of Illinois. Between Grant Park and Momence, in Kankakee county, the road ran through a farm operated by John Petro, deceased. West of the right of way is a wooded hill, on which are located the farm buildings. East of the right of way are level, open fields. There are three tracks on the right of way through this farm. The railroad runs almost directly south from Grant Park until it reaches this farm, when it curves to the west around the hill on which the buildings are located. Across the tracks east of the buildings is a farm crossing. The right of way is fenced, and there is a gate in each fence. At the farm crossing the tracks are planked. During the day deceased had worked in one of the fields on the east side of the right of way. About sundown he left his work, and started toward the house. Appellant's south-bound passenger train, due out of Grant Park at 7:13 p. m., left there a few minutes late. It was running on the west or south-bound track. The fireman, who was sitting on the left-hand side of the engine cab at the time of the accident, testified that when the train was between 1,000 and 1,300 feet north of the farm crossing he saw deceased at the gate on the east side; that deceased turned from the gate and walked at an ordinary pace toward the tracks; that the engineer sounded the whistle for the crossing about this time and that the bell was automatically ringing; that deceased continued to walk toward the south-bound track, and that he looked toward the train when it was 75 or 100 feet away, and then began to run across the track in front of the train. The engineer, who was sitting on the right-hand side of the engine cab, testified that the first he knew of the presence of deceased was when he saw his body rolling into the ditch on the west side of the track. The train was stopped and deceased was taken to Momence, where he died without gaining consciousness. Appellee filed her declaration in the circuit court of Kankakee county, in which she charged that appellant operated his train without a headlight after sundown, in violation of the statute, and that he otherwise negligently and carelessly operated and managed said train. A plea of general issue was filed and the cause was submitted to a jury. They returned a verdict of guilty, fixing appellee's damages at $10,000. Judgment was rendered on this verdict, and this judgment was affirmed on review by the Appellate Court for the Second District. A certificate of importance was granted and this appeal prosecuted.

[1] Appellee, over the objection of appellant, was permitted to prove that deceased was a man of careful habits. Such proof is admissible where there are no eyewitnesses to the accident. The rule adopted in this state and approved by repeated decisions requires the plaintiff in a personal injury case to prove that the person injured was in the exercise of due care at the time he sustained the injury for which damages are sought. Where the injury results in death and suit is brought by a personal representative the personal representative must show that deceased exercised ordinary care to avoid the injury, but it is not necessary, especially where no one saw the killing, to prove such care by direct testimony but such care may be proven by circumstantial evidence. Illinois Central Railroad Co. v. Nowicki, 148 Ill. 29, 35 N. E. 358;Cleveland, Cincinnati, Chicago & St. Louis Railway Co. v. Keenan, 190 Ill. 217, 60 N. E. 107;Illinois Central Railroad Co. v. Prickett, 210 Ill. 140, 71 N. E. 435;Chicago & Alton Railway Co. v. Wilson, 225 Ill. 50, 80 N. E. 56,116 Am. St. Rep. 102;Collison v. Illinois Central Railroad Co., 239 Ill. 532, 88 N. E. 251;Moore v. Bloomington, Decatur & Champaign Railroad Co., 295 Ill. 63, 128 N. E. 721. But where there is an eyewitness who saw the infliction of the injury, the jury must then determine from the testimony of this witness and from the facts and circumstances surrounding the injury whether deceased was careful or negligent, and in such case evidence...