Shore v. Hart

• Decision Date: 30 September 1877
• Citation: 87 Ill. 529,1877 WL 9892
• Parties: LAKE SHORE AND MICHIGAN SOUTHERN RAILROAD CO.v.JOHN HART.
• Court: Illinois Supreme Court

87 Ill. 529

1877 WL 9892 (Ill.)

LAKE SHORE AND MICHIGAN SOUTHERN RAILROAD CO.

v.JOHN HART.

Supreme Court of Illinois.

September Term, 1877.

OPINION TEXT STARTS HERE

APPEAL from the Superior Court of Cook county; the Hon. JOSEPH E. GARY, Judge, presiding.

This was an action against the Lake Shore and Michigan Southern Railroad Company, to recover damages for injuries received from being run over by a train of the defendant.

There was a verdict for the plaintiff for $10,000, a remittitur by him of $5000, and judgment for the residue, from which defendant appeals. The accident occurred near a station known in the record as the “Car Shops,” on a parcel of land which is owned, and the principal portion of which is used, by the Chicago, Rock Island and Pacific Railroad Company for machine shops and similar purposes. It extends from 47th to 51st streets, in the town of Lake, which lies south of and contiguous to the city of Chicago. Appellant, the Lake Shore and Michigan Southern Railroad Company, has a right of way along the east side of this parcel of land, on which it has constructed, and has for several years operated, two tracks; one is a main, or through track; the other is a side track, intersecting the main track by the side of a long platform in front of the station house.

The nearest street north of the station is 47th street, and the nearest street south of it is 51st street, and no street is opened leading to the station, which is located where 48th street would be, if opened. A fence extends from 47th to 51st street along the east line of this parcel of land. The platform at the station is connected with a stile over this fence, by which there is access to the paths, passing over the open prairie, extending from the station to State street, which is east of and parallel with the fence. It was the custom of both railway companies, in operating their through trains, to move them south over the Rock Island main track, and to move the same trains north over the Lake Shore track. It would seem to have been otherwise as to switching engines and trains being switched in the yards between 42d and 51st streets.

On the 18th day of July, 1874, at about 4:15 o'clock P. M., the Rock Island company started a suburban, or what is known in the record as a “dummy” train, from its depot in the city of Chicago, south. On this train appellee was a passenger. Within a few minutes of the same time, appellant, the Lake Shore company, started south from its yard at 43d street, a train consisting of from 20 to 26 empty cattle cars, drawn by the yard or switch engine, for the purpose of switching the same on the track which intersects the main track at the side of the long platform at the car shops station. While both trains were moving in the direction of the station at the Rock Island car shops, the dummy train passed the switching train at or near 47th street, about 800 feet north of the station. The dummy train stopped at the west side of the long platform, for the purpose of discharging passengers. Appellee left the car in which he was riding, walked off the south end of the platform, and a further distance of between 25 and 40 feet, and then stepped into the gangway of the dummy engine, where he commenced a conversation with the fireman or engineer. When the dummy engine, upon which he was standing, had moved about 100 feet, he got off from it, and walked obliquely toward the Lake Shore track; he entered upon the track directly in front and within a few feet of the approaching engine from the north, without looking north to see if an engine was coming, and, proceeding south upon the track, was almost immediately struck by the engine and run over, not having advanced more than four or five steps.

Mr. C. D. ROYS, and Mr. THOS. F. WITHEROW, for the appellant.

Mr. E. A. OTIS, for the appellee. Mr. JUSTICE SHELDON delivered the opinion of the Court:

The facts set out in the declaration claimed by appellee as constituting negligence on the part of the railroad company, are, in the first count, in omitting to cause a bell to be rung or steam whistle to be sounded, or other signal to be given; in the second count, in running its locomotive and train by the station mentioned at a high rate of speed, without sounding the whistle or ringing a bell; and in the third count, in running a freight train between a standing passenger train at a station, and the passenger house, in violation of a rule of the company in that behalf.

As to ringing a bell or sounding a whistle, although there was some conflict in the evidence, the clear preponderance of it would seem to be in favor of the bell being rung and the whistle sounded.

The train would not seem to have been run at a high rate of speed.

As to the rule relating to the movement of freight trains between passenger trains and stations, it is as follows: “When passenger trains are at stations, receiving or discharging passengers, freight trains must not pass between the...