Sample v. Chicago, B.&Q.R. Co.

• Decision Date: 23 April 1908
• Citation: 233 Ill. 564,84 N.E. 643
• Court: Illinois Supreme Court
• Parties: SAMPLE v. CHICAGO, B. & Q. R. CO.

233 Ill. 564

84 N.E. 643

SAMPLE

v.CHICAGO, B. & Q. R. CO.

Supreme Court of Illinois.

April 23, 1908.

Appeal from Appellate Court, Third District, on Appeal from City Court of Litchfield; Paul McWilliams, Judge.

Action by Sarah C. Sample against the Chicago, Burlington & Quincy Railroad Company. Judgment for plaintiff affirmed by the Appellate Court, and defendant appeals. Affirmed.

Creighton & Gasaway (Chester M. Dawes, of counsel), for appellant.

Harry C. Stuttle, L. V. Hill, and Amos Oller, for appellee.

CARTWRIGHT, J.

Cummings street, in the city of Litchfield, runs east and west, and is crossed by 4 tracks of the appellant, the Chicago, Burlington & Quincy Railroad Company. The east track is the main track, and the west track, about 75 feet distant, is a Y-track connecting appellant's railroad with another railroad. Between these tracks are two switch tracks leading into glassworks south of and adjoining the street. On October 4, 1905, Henry L. Sample, a teamster, was hauling cinders from the glassworks, and after loading his wagon drove out of the glassworks into the street on the west switch track. He drove along on the switch track to the main traveled part of the street, where the appellant had provided a crossing over its tracks. When the team came upon the crossing he turned east to drive along the street. On the east side of the track there was a chuck hold, into which the right front wheel dropped, throwing Sample off from the wagon and killing him. He left the appellee, his widow, and three children. The appellee, as administratrix of his estate, brought this suit in the city court of the city of Litchfield to recover damages for his death, and charged appellant with negligence in permitting the existence of the hold in the crossing. The plea was the general issue, and the jury returned a verdict for $5,000. The plaintiff remitted $1,500 from the damages assessed by the jury, and the court, after overruling motions for a new trial and in arrest of judgment, entered judgment for $3,500 and costs. An appeal was taken to the Appellate Court for the Third District, and that court affirmed the judgment, and this further appeal was prosecuted.

The defendant asked the court to direct a verdict of not guilty, which the court refused to do, and the refusal is assigned for error. The evidence for the plaintiff was that the crossing was from 14 to 16 feet wide; that there had been some planks next the rails which were worn out and the crossing was filled with cinders; that there was no plank on the east side of the east rail; that there was a hole on the east side of the crossing about 2 feet wide, 3 feet long, and from 14 to 18 inches deep; that the hold had been there from 6 to 8 months; that the superintendent of streets of the city of Litchfield had informed the section foreman of the defendant of its condition, and that Sample, who was standing on his load, was thrown to the ground by the wheel dropping into that hole. There could be no doubt whatever of the culpable negligence of the defendant with respect to the crossing, either from this testimony or from any evidence in the case, nor that the hold was the proximate cause of the death of Sample. The argument that the court ought to have directed a verdict is on the ground that Sample himself was guilty of negligence as a matter of law, and is based solely on the fact that he did not approach the crossing at right angles, but came upon it from along the switch track and attempted to turn upon the crossing. The statutory duty is to construct and maintain crossings so that at all times they shall be safe as to persons and property, and it is plain that this crossing was a dangerous one even for teams crossing it at right angles. Sample, however, had the right to cross it in any direction he saw fit-lengthwise, crosswise, or in any other way-provided he used ordinary care in doing so. It is immaterial where he came from or what he did before he reached the crossing, and when he came upon it he had a right to a safe crossing and to turn as he attempted...