Pronskevitch v. Chicago & A. Ry. Co.

• Decision Date: 07 February 1908
• Citation: 83 N.E. 545,232 Ill. 136
• Court: Illinois Supreme Court
• Parties: PRONSKEVITCH v. CHICAGO & A. RY. CO.

232 Ill. 136

83 N.E. 545

PRONSKEVITCH

v.CHICAGO & A. RY. CO.

Supreme Court of Illinois.

Dec. 17, 1907.

Rehearing Denied Feb. 7, 1908.

Appeal from Appellate Court, Second District, on Appeal from Circuit Court, Will County; Frank L. Hooper, Judge.

Action by Christopher Pronskevitch against the Chicago & Alton Railway Company. From a judgment of the Appellate Court affirming a judgment in favor of plaintiff, defendant appeals. Affirmed.O'Donnell & Donovan (Winston, Payne, Strawn & Shaw, of counsel), for appellant.

Donahoe, McNaughton & McKeown, for appellee.

This was an action on the case begun in the circuit court of Will county by appellee against appellant to recover damages for personal injuries occasioned by the collision of a freight train on appellant's railroad with a surrey driven by appellee on a public highway near the village of Gardner, in Grundy county. The railroad, running northeast and southwest through the village, has a double track; the east one being used for northbound trains and the west one for southbound. The highway running north and south intersects the tracks just east of the corporate limits of the village, and about a quarter of a mile east of the depot. The tracks of the Big Four Railroad intersect this highway at right angles a short distance south of appellant's crossing, and also intersect the appellant's tracks about 200 feet southwest of the intersection of the highway and the appellant's tracks. A switch or Ytrack connecting the two railroads is on the northwest side of appellant's road, and leaves its main track a considerable distance east of the highway crossing. Where this Y crosses the highway, it is about 55 feet north of appellant's main tracks and nearly parallel with them. It connects with the Big Four tracks several hundred feet west of the highway. Appellee was a coal miner, and resided at Braceville. He hired a livery rig to drive to Gardner, and, together with four other persons, was driving south on the highway. The surrey had the curtains on, as it was raining. As they drove on the crossing of appellant's main tracks the vehicle was struck by a locomotive running backwards in a northeasterly direction, and drawing 14 flat cars and a caboose. The horses were killed, the surrey destroyed, and its occupants thrown out and injured. It is alleged, and there is evidence tending to show, that there were several box cars on either side of the highway and encroaching thereon, leaving an opening from 16 to 24 feet only in width, and obstructing the view in both directions of the main track of appellant's road, and that south of the Y the view to the southwest was further obstructed by a tower house at the railroad crossing, an oilhouse, coalshed, and telegraph poles. The declaration consisted of five counts, the first and fourth charging negligence in running the train, the second a failure to give the statutory signals, the third and fifth that box cars permitted to stand on the Y obstructed the view and subjected appellee to unnecessary hazard and danger. A trial resulted in a verdict against the appellant for $4,500. After a remittitur of $1,000 a motion for a new trial was overruled and judgment was rendered against appellant for $3,500, which has been affirmed by the Appellate Court for the Second District, and a further appeal is prosecuted to this court.

DUNN, J. (after stating the facts as above).

Appellant's counsel have devoted a large part of their argument to a discussion of the preponderance of the evidence. Questions of fact involving a consideration of the weight of the evidence are concluded by the judgment of the Appellate Court. As to the ringing of the bell and sounding of the whistle, the rate of speed of the train, the position and number of box cars on either side of the highway, the space between these cars, the obstruction of the view of the railroad, the condition of the highway on both sides, the opportunity of appellee to turn his team around, and the conduct of appellee in approaching the crossing, the evidence is very much in conflict; but there is evidence tending to support a finding that the appellant was guilty of the negligence charged in the declaration and that appellee was in the exercise of ordinary care for his own safety. Therefore the court committed no error in refusing to direct a verdict.

A. B. Crain, one of the brakemen on the train, was called as a witness by appellant and testified that immediately after the accident he heard Katie Casper, one of the occupants of the buggy, say that she tried to stop appellee and keep him from driving across, but he was drunk and did not know what he was doing; that she tried to get the reins to stop him and told him to stop, but he said, ‘Oh, we can...