Pittsburgh, C., C. & St. L. R. Co. v. Kinnare

• Decision Date: 16 June 1903
• Citation: 203 Ill. 388,67 N.E. 826
• Court: Illinois Supreme Court
• Parties: PITTSBURGH, C., C. & ST. L. R. CO. v. KINNARE.

203 Ill. 388

67 N.E. 826

PITTSBURGH, C., C. & ST. L. R. CO.

v.KINNARE.

Supreme Court of Illinois.

June 16, 1903.

Appeal from Appellate Court, First District.

Action by Frank T. Kinnare, as administrator of Thomas Mann, deceased, against the Pittsburgh, Cincinnati, Chicago & St. Louis Railroad Company. From a judgment in the Appellate Court (105 Ill. App. 566) affirming a judgment for plaintiff, defendant appeals. Affirmed.

Geo. Willard, for appellant.

W. S. Johnson, for appellee.

CARTWRIGHT, J.

Thomas Mann was a switch tender of the Chicago Terminal Railroad Company in Chicago, in charge of switches of that company between Archer avenue and Thirty-Ninth street. West of the tracks of the terminal company on which he worked there were tracks of appellant, with a space of about 11 feet between. In this space was one of the switch stands which he tended. He threw that switch to permit a freight train of the Baltimore & Ohio Railroad Company to pass, and then stepped back so close to appellant's track that an engine could not pass without striking him, and stood there making a memorandum in a book. His back was toward an engine of the appellant which was backing up on its track, and he was struck by the engine, and, falling under the wheels, was killed. Appellee was appointed administrator of his estate, and brought this suit in the superior court of Cook county to recover the damages suffered by the widow and next of kin. There was a verdict and judgment in favor of appellee, which has been affirmed by the Branch Appellate Court for the First District.

The trial court overruled a motion in arrest of judgment, and the ruling is assigned as error, on the ground that the declaration is not sufficient to support a judgment. There are three counts in the amended declaration, and neither of them alleges that deceased exercised any care for his own safety, but they are based upon the theory that he was a trespasser upon the defendant's right of way, and that his death was caused by wanton and willful acts of the defendant. They allege that he was in such close proximity to the track that the engine could not be run past him without striking him, and that the defendant knew of his perilous position and the danger he was in, and ran the engine against him and killed him. Under the allegations of the declaration defendant would not be liable for mere negligence, and could only be charged with liability in case of a wanton or willful injury. But the injury charged is of that character. The first count charges that the engine was backed without giving any warning of its approach by ringing a bell, as required by an ordinance of the city of Chicago, and it has been held that the mere fact that a train was run in a manner prohibited by an ordinance will not furnish a sufficient reason for holding an injury to be wanton or willful. Illinois Central Railroad Co. v. Hetherington, 83 Ill. 510;Blanchard v. Lake Shore and Michigan Southern Railway Co., 126 Ill. 416, 18 N. E. 799,9 Am. St. Rep. 630. But the count contains the additional averments that the defendant knew the perilous position of the deceased, and that the backing of the engine without the required warning was willful and wanton.The second count charges the wanton and willful starting and backing of the engine without giving any warning or signal, and running against the deceased, knowing his dangerous position. The third count charges that after the engineer saw the deceased, and saw him standing in a perilous position, he could have brought the engine under control and stopped it, but failed to do so and ran against him. We think the declaration sufficient to support the judgment.

The defendant asked the court to instruct the jury to return a verdict of not guilty, and the request was refused. It was not...