Pittsburg, C., C. & St. L. Ry. Co. v. Banfill

• Decision Date: 16 December 1903
• Citation: 69 N.E. 499,206 Ill. 553
• Court: Illinois Supreme Court
• Parties: PITTSBURG, C., C. & ST. L. RY. CO. v. BANFILL.

206 Ill. 553

69 N.E. 499

PITTSBURG, C., C. & ST. L. RY. CO.

v.BANFILL.

Supreme Court of Illinois.

Dec. 16, 1903.

Appeal from Appellate Court, First District.

Action by Hattie M. Banfill against the Pittsburg, Cincinnati, Chicago & St. Louis Railway Company. From a judgment of the Appellate Court affirming a judgment for plaintiff (107 Ill. App. 254), defendant appeals. Affirmed.

Geo. Willard, for appellant.

J. R. Beckett, Kitt Gould, and B. E. Kleeman, for appellee.

WILKIN, J.

This is an action on the case, brought by appellee to recover for a personal injury sustained by her by being struck by a passenger train of appellant at 137th street, in the village of Riverdale, Cook county. About 20 minutes past 6 o'clock on the morning of June 21, 1898, she was walking in a westerly direction along the north sidewalk of said street, going to her place of employment. The railway track of appellant crossed this street in a north and south direction, and the view to the south was obstructed by the depot and by standing cars upon the side track some six or seven feet to the east of the said main track. These cars and the depot were but a short distance south of 137th street. Gates had been erected by the appellant at this crossing, but at the time of the accident no one was present to operate them, and they were open. A passenger train, northbound, consisting of 13 cars and an engine, traveling at the rate of 20 to 30 miles an hour, struck appellee as she was attempting to cross said tracks, and she was thrown 30 or 40 feet, and seriously injured. In the declaration it was alleged that the train at the time of the accident was going at a dangerous and unsafe rate of speed; that no bell was rung or whistle sounded at a distance of at least 80 rods from said crossing; that said train was permitted to approach said crossing without the gates at the intersection of said street with the said railroad tracks being lowered, as required by the ordinance of the village of Riverdale; and that, while exercising due care and caution for her own safety, appellee was struck by said train and injured. Upon a trial before the court and a jury a judgment was rendered against defendant for $20,000, which has been affirmed by the Appellate Court for the First District.

But few questions are raised on this appeal. The first error assigned and urged for ground of reversal is the refusal of the trial court, at the close of all the evidence, to give a peremptory instruction to the jury to find for the defendant. The rule often announced by this court as to when the giving of such an instruction is proper and when it should be refused is that, where the evidence fairly tends to prove the allegations of the declaration, it is the duty of the trial court to refuse such an instruction, and submit the questions of fact, under proper instructions, to the jury. The evidence in this case was such as to entitle the plaintiff to the benefit of that rule. There was abundant evidence tending at least to support the material allegations of the declaration. The court therefore properly refused to take the case from the jury. Of the many cases supporting this conclusion the following may be cited: Cleveland, Cincinnati, Chicago and St. Louis Railway Co. v. Baddeley, 150 Ill. 328, 36 N. E. 965;Pittsburg, Cincinnati, Chicago and St. Louis Railway Co. v. Hewitt, 202 Ill. 28, 66 N. E. 829, and cases cited in the foregoing opinions.

The next error assigned is the ruling of the trial court in limiting the cross-examination of a medical witness named McGregor. The evidence shows that he was a practicing physician, and had made an examination of appellee as to her injuries, and testified concerning the result of such examination. Upon cross-examination appellant's counsel asked him concerning the manner in which he conducted the examination, and then asked him the two following questions: ‘Is that...