Ryan v. Chicago & N.W. Ry. Co.

• Decision Date: 01 June 1942
• Docket Number: Gen. No. 42012.
• Citation: 42 N.E.2d 128,315 Ill.App. 65
• Court: United States Appellate Court of Illinois
• Parties: RYAN v. CHICAGO & N. W. RY. CO.

315 Ill.App. 65

42 N.E.2d 128

RYAN

v.CHICAGO & N. W. RY. CO.

Gen. No. 42012.

Appellate Court of Illinois, First District, First Division.

June 1, 1942.

Appeal from Circuit Court, Cook County; Michael Feinberg, Judge.

Action by Leo A. Ryan, administrator of the estate of Chauncey Esch, deceased, against Chicago & Northwestern Railway Company for the death of plaintiff's decedent when struck by a train. From an adverse judgment entered upon an instructed verdict for defendant, plaintiff appeals.

Judgment reversed and cause remanded. Ryan, Condon & Livingston, of Chicago (John M. Tuohy, of Chicago, of counsel), for appellant.

Nelson J. Wilcox and I. C. Belden, both of Chicago, for appellee.

MATCHETT, Justice.

Plaintiff administrator sued for damages under the statute because of alleged negligence of the defendant railway, through which the decedent lost his life. The complaint averred that defendant, on January 21, 1938, was in possession and control and was operating a steam railroad system on a right-of-way in Oak Park in Cook County, Illinois; that plaintiff's decedent was a police officer employed by the Village of Oak Park and a few moments before the occurrence complained of, in pursuance of his duties, apprehended a prisoner he had detected in the commission of a crime and placed him under arrest upon defendant's right-of-way, and was walking with the prisoner in an easterly direction along a portion of defendant's premises used by defendant in boarding and discharging passengers; that while in the exercise of due care, the train of defendant struck him, causing injuries from which he died.

The original complaint described negligence of the defendant, which it averred was wilful and wanton.

The complaint was afterwards amended, and defendant answered admitting possession, control and operation of the steam railroad system at the time and place in question; that the decedent was a police officer and was struck and killed by a locomotive of defendant, but denied decedent was in the exercise of ordinary care or the defendant guilty of any negligence. By leave of court plaintiff afterwards filed an additional count in which he set up the same facts but alleged negligence without averring that it was wanton or wilful.

The cause was tried before a jury. At the conclusion of plaintiff's evidence the court, on motion of defendant, instructed a verdict for defendant and entered judgment on it, from which plaintiff appeals.

The question for decision is whether the evidence (giving to plaintiff the benefit of all facts proved and all just inferences therefrom) presented an issue of fact which should have been submitted to the jury. Pollard v. Broadway Central Hotel Corp., 353 Ill. 312, 187 N.E. 487;Blumb v. Getz, 366 Ill. 273, 8 N.E.2d 620; and Emge v. Illinois Central R. Co., 297 Ill.App. 344, 17 N.E.2d 612.

Before ruling on the motion to direct a verdict the court struck certain testimony given by Loyal Wilcox as to the customary use the defendant made of the space on which deceased walked when hit. Two exhibits (pictures intended to illustrate this testimony) were not admitted in evidence. Defendant states it has no objection to treating this stricken testimony and these two exhibits as if in evidence. So considered, there was evidence from which the jury might reasonably have inferred the following facts.

The accident in which Esch, the deceased, lost his life occurred about 6:30 P. M., January 21, 1938, on the right-of-way of defendant in Oak Park, near the intersection of Marion Street and North Boulevard. Marion Street runs north and south; North Boulevard east and west. Defendant's tracks at the place where the accident occurred rest on an elevation about 15 feet above the ground. Steps lead from the ground below to the station and platform connected with it, which are located on the north side of the elevation near the intersection and on defendant's right-of-way. The west boundary of the platform of the station was at a point where Marion Street passed under the railroad tracks. There was an underpass on the street running under the tracks. The underpass was about 66 feet wide, designed for vehicular and pedestrian traffic. At the west end of the platform was an iron railing extending the entire width of the platform and west of the platform over the top of the underpass to a point west of where the accident occurred. At this place five tracks of defendant ran generally in an east and west direction over the right-of-way. The north track was used for eastbound traffic. Between the north rail of the most northerly track and the guard rail at the top of and on the north side of the elevated structure was a space of ground about 6 feet wide.

Decedent was an Oak Park policeman on duty at this intersection. A culprit from Sterling snatched the purse of a lady on the street and ran. She cried out; others cried out, and the culprit ran. Esch pursued him. He ran up the steps leading to defendant's depot, then back of the tracks toward the west, with the officer in hot pursuit. The culprit ran southwesterly about 400 feet west of the west line of the platform and passed from the north to the south of the five tracks. The officer fired his revolver, called the fugitive to halt, which he did, and the officer arrested him. The officer then started to walk his prisoner north across the tracks. It was noticed the culprit had lost his hat. They went back together and got it. They then walked north to the space of ground between the north rail of the north track and the guard rail on the elevation, then walked east, side by side, the prisoner near the guard rail, the officer near to the north rail of the north track. At a point about 107 feet west of the west edge of the station platform the officer, Esch, was struck by the rear or lead car of defendant's train of empty cars, which was backing up from Elmhurst (a village about 16 miles west) to defendant's yards at California Avenue in Chicago, about 6 miles east of Oak Park. The evidence tends to show the train was backing at a speed of about 30 miles per hour. The train consisted of five empty coaches. Decedent was struck by the step on the northeast step of the lead coach and thrown under the train, which came to a stop 440 feet from the point of impact. Decedent's legs were severed from the body, the body itself thrown north on the north rail of the eastbound track. The body was found impinged under the engine at a point directly beneath the cab. Deceased was taken to the hospital, where he died that night.

This train was in charge of defendant's brakeman, Frank Kane, who lived in West Chicago. He was in the front coach which was a roller bearing type coach and would seat about 90 passengers. The vestibule of this coach was a regular coach platform, and on the end of it was a tail gate and tail board. The train was not scheduled to make any stops on this trip. A rule of the defendant company required the brakeman to be on the rear platform of the lead car. This was necessary in case it was desired to stop the train. The purpose of stopping it would be in case of an emergency--if anything was on the track, any train ahead, any “signal” against him. Kane was the person on whom the duty rested to stop the train in case of emergency. The brakes were operated by a tail hose, a long rubber hose with a valve on the end of it. The valve was opened to set the air and set the brakes by a metal lever which the brakeman held in his hand. The only operation required to set the brakes was to push the lever back. There was an air whistle on the hose which operated from the same valve and from which there were two openings. When the valve opened the whistle blew. To sound the whistle it was only necessary for the brakeman to place his finger on the lever.

The trainman or brakeman (Kane) was called by plaintiff and testified. He gave some evidence in conflict with the facts as above stated and facts testified to by other witnesses. He said he was standing in the center of the vestibule, two and one-half or three feet back of the opening; that he was holding the lever in his hand at the time of the accident, and that Esch, the police officer, came right across in front of the train and was struck by the step on the northeast corner of the train.

The accident was seen by an unusual number of witnesses, persons who, after the hue and cry, were watching the pursuit by the officer. Several of these testified there was no brakeman on the rear end of the platform of the coach, where the air hose, etc., were located; that no whistle was blown, as the train approached the depot, no warning of any kind given prior to the accident; that there were no lights in any of the coaches and no headlight burning on the lead coach. From these and the further fact that the train ran 440 feet after hitting the decedent before it came to a stop, and 120 feet before the application of the brakes was made, it is argued the brakeman was not in his usual position where he could have a lookout for persons in danger and warn them, but was inside the coach some distance from his proper position until after the deceased was struck.

Plaintiff contends the evidence being thus, it should have been submitted to the jury not only on the question of whether defendant was guilty of any negligence, but also on the issue of whether the negligence was wilful and wanton.

The trial court was of the opinion that under the evidence the deceased, Esch, was at the most a mere licensee on defendant's right-of-way, and that their relationship was such that the only duty of the defendant railroad company was not to injure him wantonly or wilfully. The trial judge was persuaded to this view by two cases which are relied on in defendant's brief. These are Gibson v. Leonard, 143 Ill. 182, 192, 32 N.E. 182,17 L.R.A. 588,36 Am.St.Rep. 376, and Casey v. Adams, 234 Ill. 350, 355, 356, 84 N.E. 933, 17 L.R.A.,N.S., 776, ...