Schlauder v. Chicago & Southern Traction Co.

• Decision Date: 08 February 1912
• Citation: 253 Ill. 154,97 N.E. 233
• Court: Illinois Supreme Court
• Parties: SCHLAUDER v. CHICAGO & SOUTHERN TRACTION CO.

253 Ill. 154

97 N.E. 233

SCHLAUDER

v.CHICAGO & SOUTHERN TRACTION CO.

Supreme Court of Illinois.

Dec. 21, 1911.

Rehearing Denied Feb. 8, 1912.

Error to Appellate Court, Second District, on Appeal from Circuit Court, Will County; Charles B. Campbell, Judge.

Action by Hattie Schlauder against the Chicago & Southern Traction Company. There was a judgment of the Appellate Court affirming a judgment for plaintiff, and defendant brings error. Reversed and remanded.Lowes & Richards (Mayer, Meyer, Austrian & Platt and Frederick D. Jordan, of counsel), for plaintiff in error.

J. L. O'Donnell, T. F. Donovan, and J. A. Bray, for defendant in error.

CARTWRIGHT, J.

The Appellate Court for the Second District affirmed the judgment for $6,000 and costs recovered by defendant in error against plaintiff in error in the circuit court of Will county, and a writ of certiorari was granted by this court for the purpose of reviewing the judgment of the Appellate Court.

The suit was an action on the case for personal injuries received by plaintiff while a passenger on the car of defendant. The plea was not guilty, and the defendant asked the court to direct a verdict of not guilty, which the court refused to do. The evidence from which the correctness of that ruling must be determined was as follows:

The defendant is a railroad company organized under the general act for the incorporation of railroad companies and operates a railroad from Chicago to Kankakee. The power used is electricity, applied by means of an overhead trolley wire and pole. On August 30, 1909, the plaintiff, with her husband, took passage from Chicago to go to Peotone. After passing Blue Island the car approached a crossing of the Grand Trunk Railroad on the same level. The trolley pole became disconnected from the wire, and the car stopped on the crossing and stood there from three to five minutes, as testified to by several of the plaintiff's witnesses, and there was no contradictory evidence on that question. There were about 30 passengers, who remained seated in the car until a train on the Grand Trunk Railroad was seen coming around a curve from the west at a distance of from 600 to 800 feet from the car. The defendant's conductor ran out on the track and signaled to the approaching train, and the engineer made every effort to stop it. An alarm being given, the passengers made a general rush for the door to get out. A number of them were crowded at the door to the vestibule when the other train reached the car. The train was almost stopped and moving not faster than a slow walk, but it pushed the end of the car around and stopped beyond the car somewhere from 14 feet up to the length of the engine, or perhaps 40 or 50 feet. As a result of the collision the plaintiff was thrown forward into the vestibule, which was considerably lower than the floor of the car, and several other women fell on her. There was a bruise on her hip three or four inches in diameter, where considerable swelling followed, and this was the only external sign of injury. She was treated for some time by a physician and suffered from other disabilities which the evidence in her behalf tended to prove had not existed before the accident.

There were five counts in the declaration. The negligence charged in the original declaration was that the defendant carelessly, recklessly, negligently, and improperly propelled and ran the car and permitted and allowed it to stand on the railroad track on which the train was approaching. The first of four additional counts afterward filed charged as negligence that the defendant did not use due, proper, or reasonable care that the plaintiff should be safely carried on the car. The second alleged that the defendant did not use due care and caution that the plaintiff should be safely carried, but so recklessly and improperly drove and managed the car that it collided with the locomotive and train propelled by steam on the other road. The negligence charged in the third was that the defendant failed to bring its car to a stop at a reasonably safe distance from the steam railroad, and failed to use any reasonable precaution to ascertain whether or not any train or locomotive was approaching thereon, and carelessly and negligently ran and propelled its car over and upon said steam railroad tracks. The fourth charged that the defendant so carelessly and negligently managed, conducted, and propelled its car that the car was struck and came in collision with the passenger train.

It is not claimed that there was any want of care on the part of the plaintiff, but it is insisted that the defendant was entitled to the benefit of the presumption of law that the other railroad would obey the statute and comply with the law which required it to stop within 800 feet of the crossing of another railroad on the same level and to positively ascertain that the way was clear and that the train could safety resume its course before proceeding to pass over the crossing. Basing their argument on that presumption, counsel contend that the defendant was not guilty of any negligence in failing to anticipate a disregard of the statute by those in charge of the train.

[1] The defendant being organized under the general act for the incorporation of railroads, its railroad is a commercial railroad, and we so decided in Bradley Mfg. Co. v. Chicago & Southern Traction Co., 229 Ill. 170, 82 N. E. 210. It has the rights and is subject to the burdens imposed by law upon railroads so organized, and the statute concerning fencing and operating railroads applies to it. Butler v. Aurora, Elgin & Chicago Railroad Co., 250 Ill. 47, 95 N. E. 44.

[2] The train on the Grand Trunk Railroad was not stopped as required by the statute, and if it had been the accident would not have happened, but if defendant was negligent the fact that the other railroad company was also negligent was no defense. Chicago & Eastern Illinois Railroad Co. v. Mochell, 193 Ill. 208, 61 N. E. 1028,86 Am. St. Rep. 318.

[3] There is a presumption of law that every person will perform the duty enjoined by law or imposed by contract, and anticipation of negligence in others is not a duty which the law imposes. Chicago, Burlington & Quincy Railroad Co. v. Gunderson, 174 Ill. 495, 51 N. E. 708;Chicago City Railway Co. v. Fennimore, 199 Ill. 9, 64 N. E. 985. While that statement has often been made and the presumption is to have due weight in determining questions of negligence, it is manifest that the presumption is not a conclusive one and that no one has a right to rely solely upon it in regulating his own conduct. The presumption does not absolve one from exercising such care and prudence as a reasonably prudent person would under the same circumstances, nor relieve a carier of passengers from the duty of exercising that degree of care demanded by the law in view of the circumstances and surroundings. One who has an unobstructed view of an approaching train would not be justified in closing his eyes and crossing a railroad track in reliance upon the presumption that a bell would be rung or a whistle sounded. No one can assume that there will not be violations of the law or negligence of others and offer the presumption as an excuse of failure to exercise care. Although the presumption is to be considered, it is not conclusive that the defendant was not guilty of negligence.

[4] Counsel who seek to sustain the ruling say that...