Rosenthal v. Chicago & A.R. Co.

• Decision Date: 26 October 1912
• Citation: 99 N.E. 672,255 Ill. 552
• Court: Illinois Supreme Court
• Parties: ROSENTHAL et al. v. CHICAGO & A. R. CO.

255 Ill. 552

99 N.E. 672

ROSENTHAL et al.

v.CHICAGO & A. R. CO.

Supreme Court of Illinois.

Oct. 26, 1912.

Error to Appellate Court, Third District, on Appeal from Circuit Court, Logan County; T. M. Harris, Judge.

Action by Raphael Rosenthal and others, executors, against the Chicago & Alton Railroad Company. Judgment for plaintiffs, from which defendant appealed to the Appellate Court, and from a judgment of affirmance therein (164 Ill. App. 221) brings error. Affirmed.

Blinn & Covey, of Lincoln (Silas H. Strawn, of Chicago, of counsel), for plaintiff in error.

Beach & Trapp, of Lincoln, for defendants in error.

FARMER, J.

The executors of the last will and testament of Silas Rosenthal, deceased, recovered a judgment in the circuit court of Logan county against plaintiff in error in the sum of $2,500 for the death of Rosenthal, caused by being struck by a tender attached to plaintiff in error's engine while crossing the railroad tracks over Pulaski street, in the city of Lincoln. On appeal to the Appellate Court for the Third District the judgment was affirmed. A writ of certiorari was issued by this court, and the case has been brought here for review.

The first count of the declaration charges plaintiff in error with carelessly and negligently running an engine, with tender attached, over and across Pulaski street and striking deceased, who was exercising ordinary care for his safety, so severely injuring him as to cause his death. Other counts of the declaration charge the violation of an ordinance then in force requiring plaintiff in error to construct and maintain at certain street crossings (among them Pulaski street) gates extending across both sidewalks and the street, which shall be under the control of a competent watchman, and shall be operated at all times between the hours of 7 o'clock a. m. and 10 o'clock p. m.; also the violation of ordinances limiting the rate of speed of any locomotive, engine, car, or train, other than a passenger train, to six miles per hour within the limits of the city, and requiring all locomotives, railroad cars, and trains, while in motion in the nighttime, to have a conspicuous bright light shining in the direction in which the train or car is moving. The declaration also charges that plaintiff in error did not ring the bell or blow the whistle of said engine as required by statute, and failed to place a brakeman or other employé on the rear of the tender to warn persons who might be crossing the tracks of the approach of the engine. It is further charged that plaintiff in error permitted a train of freight cars to remain on the west side track and to extend within 30 feet of said Pulaski street, and permitted the right of way on the west side of the track south of Pulaski street to be used as a lumber yard, where there were large piles of lumber to the height of 10 feet or more, extending 300 feet to the south, and also a large pile of sewer tile to the height of 10 feet and 30 feet in length, all of which obstructed the view of the track for a great distance as one approached the crossing from the west.

At the close of plaintiffs' evidence, and again at the close of all the evidence, plaintiff in error asked that the jury be instructed to return a verdict of not guilty, which was refused. The refusal to give this instruction is assigned as error. It is also contended that the ordinance requiring the gates over the sidewalks and street at the crossing to be operated from 7 o'clock a. m. to 10 o'clock p. m. was improperly admitted in evidence, and that the court erred in refusing instructions offered by the plaintiff in error.

The evidence discloses that plaintiff in error's railroad runs through the city of Lincoln in practically a north and south direction, and consists of two tracks at the crossing and two side tracks south of the crossing. Sangamon street is west of and parallel with the railroad. Pulaski street runs east and west, and crosses the railroad and Sangamon street. Deceased lived on Sangamon street south of Pulaski street. He was about 75 years of age and had defective eyesight, having a cataract over each eye. The sight of one eye was totally obscured and the other materially affected. While he had difficulty in recognizing persons and objects at a distance, he could see to read and write, went about unattended, and was able to conduct his business of buying and selling horses and mules. Shortly after 6 o'clock on the evening of December 7, 1909, deceased left his home for the purpose of going to a cigar store on Pulaski street, east of the railroad tracks, where he usually spent his evenings. He was alone, and had the flaps of the cap he was wearing pulled down over his ears. A freight train had arrived in the yard of plaintiff in error and was left standing on the west side track, south of the crossing. The engine, with the tender attached, was backing north on the east main track at a rate of speed variously estimated by the witnesses at from 6 to 10 miles per hour. When deceased approached the crossing on the south side of Pulaski street, he left the sidewalk and started diagonally across the tracks to the north side of the street. As he stepped on the east track, the tender struck him, and injured him so severely that he died about an hour later.

[1] It is contended by plaintiff in error that the deceased, being an old man with defective eyesight and having his cap pulled down over his ears, was guilty of contributory negligence in attempting to cross the street unattended and without looking and listening carefully for the approach of a train, and hence no right of recovery exists. The accepted rule of law upon the question of negligence is that, if one exercises the degree of care required of a reasonably prudent man under the circumstances, he is guilty of no negligence, but, if he fails to do so, he is guilty, and cannot recover. Krieger v. Aurora, Elgin & Chicago Railroad Co., 242 Ill. 544, 90 N. E. 266. The fact that deceased stepped in front of the moving tender, and was killed, does not necessarily imply that he was guilty of negligence. Whether or not he exercised the degree of care required of him must be determined from a consideration of all the circumstances leading up to the accident. For more than 25 years he had lived in the city of Lincoln, and during all of that time had resided in the same house on Sangamon street, a short distance from the crossing where he was killed. His place of business was on Pulaski street, east of the tracks. He was familiar with the crossing and the movement of trains, having crossed there as he went to and from his place of business and the cigar store where he usually spent his evenings. Three witnesses saw deceased at the time he was struck by the engine. They were all near him and two of them were going in the same direction, intending to pass over...