St. Louis v. Pflugmacher

• Decision Date: 31 August 1881
• Citation: St. Louis v. Pflugmacher, 9 Ill.App. 300, 9 Bradw. 300 (Ill. App. 1881)
• Parties: ST. LOUIS, ALTON AND TERRE HAUTE RAILROAD COMPANYv.MICHAEL PFLUGMACHER, Adm'r.
• Court: Appellate Court of Illinois

9 Ill.App. 300

9 Bradw. 300

ST. LOUIS, ALTON AND TERRE HAUTE RAILROAD COMPANY

v.MICHAEL PFLUGMACHER, Adm'r.

Appellate Court of Illinois, Fourth District.

August Term, 1881.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of St. Clair county; the Hon. W. H. SNYDER, Judge, presiding. Opinion filed October 6, 1881.

Mr. C. F. NOETLING and Mr. R. A. HALBERT, for appellant; that a person approaching a crossing should stop and look for approaching trains, cited St. L. A. & T. H. R. R. Co. v. Manly, 58 Ill. 300; C. B. & Q. R. R. Co. v. Harwood, 80 Ill. 88; C. & N. W. R. R. Co. v. Hatch, 79 Ill. 137; T. W. & W. R'y Co. v. Jones, 76 Ill. 311; C. B. & Q. R. R. Co. v. Lee, 68 Ill. 576; C. B. & Q. R. R. Co. v. Damarell, 81 Ill. 450; C. & R. I. R. R. Co. v. McKean, 40 Ill. 218; C. &. A. R. R. Co. v. Jacobs, 63 Ill. 178; R. R. Co. v. Houston, 5 Otto, 702.

No action lies where the plaintiff is injured by want of ordinary care on his part, unless the injury was willful on the part of the defendant: C. B. & Q. R. R. Co. v. Lee, 68 Ill. 576; C. B. & Q. R. R. Co. v. Gregory, 58 Ill. 272.

The statute requires only the sounding of a whistle, or ringing of the bell, not both: P. P. & J. R. R. Co. v. Siltman, 67 Ill. 72; Ill. Cent. R. R. Co. v. Benton, 69 Ill. 174.

An instruction assuming to make a complete statement of the case must state all the facts: St. L. & S. E. R. R. Co. v. Britz, 72 Ill. 256; Chi. P. & P. Co. v. Tilton, 87 Ill. 547; Sinclair v. Bernt, 87 Ill. 174.

Instructions should confine the damages to such as the evidence proves: Freeport v. Isbell, 83 Ill. 440.

Negligence is a matter of fact for the jury, under all the evidence in the case: Schmidt v. C. & N. W. R'y Co. 83 Ill. 405; G. & C. U. R. R. Co. v. Dill, 22 Ill. 265.

Mr. EDWARD L. THOMAS and Messrs. HAY & KNISPEL, for appellee; generally upon a right to recover, cited I. & St. L. R. R. Co. v. Ogle, 92 Ill. 361; P. P. & J. R. R. Co. v. Siltman, 88 Ill. 532; I. & St. L. R. R. Co. v. Stables, 62 Ill. 313; C. B. & Q. R. R. Co. v. Triplett, 38 Ill. 482; T. W. &. W. R. R. Co. v. O'Connor, 77 Ill. 391.

It was negligence in the company to permit bushes to grow upon its right-of-way so as to obstruct the view of the highway: I & St. L. R. R. Co. v. Smith, 78 Ill. 112.

Negligence, when it consists in the omission of a duty imposed by positive requirement of law, is a question of law: Stratton v. C. C. Ry. Co. 95 Ill. 25; T. P. & W. R. R. Co. v. Foster, 43 Ill. 480; Ill. Cent. R. R. Co. v. Whalen, 42 Ill. 396; C. & A. R. R. Co. v. Elmore, 67 Ill. 176; Ill. Cent. R. R. Co. v. Gillis, 68 Ill. 317; C. B. & Q. R. R. Co. v. Lee, 87 Ill. 454; O. & M. R. R. Co. v. Foster, 92 Ill. 440.

The court should direct the jury as to the law on the facts which the evidence tends to establish: Mitchell v. Fond du Lac, 61 Ill. 174.

CASEY, P. J.

Appellee sued appellant in an action on the case. The cause was submitted to a jury and a verdict rendered in favor of appellee. The case is brought to this court by appeal, and one of the errors assigned is that the court gave improper instructions for the plaintiff. The first instruction is as follows: “If the jury believe from the evidence that the defendant neglected to sound the whistle or neglected to ring the bell, for at least 80 rods from the crossing where the accident happened, and if it rang the bell, it had not done so almost, if not quite, continuously, then this is evidence of gross negligence on the part of defendant.” This instruction is erroneous and should not have been given. From it the jury doubtless inferred that the appellant must have sounded the whistle and rang the bell at the same time. The statute requires that appellant should sound the whistle or ring the bell at such a crossing. Either sounding the whistle or ringing the bell was a compliance with the statute. I. C. R. R. Co. v. Burton, 69 Ill. 174.

The sixth instruction for appellee is as follows: “The court instructs the jury, that if they believe from the evidence that Joseph Pflugmacher, while attempting to cross the track of the defendant with his team, at a regular crossing, was struck by an approaching train and killed, and that the company allowed the sight along the track to be obstructed by weeds, brush, trees or other obstructions upon its right-of-way, and that the defendant failed to blow the locomotive whistle or ring the bell on the train approaching the crossing, until it was too late to avail, and that the train was behind time and running at an unusual speed to make up time, then the negligence of the company was gross, and even if the deceased was guilty of negligence himself in failing to listen or look out for the train out of time, such negligence was slight, and the jury must find the defendant guilty, and assess the damages at a sum not exceeding $5,000.” This instruction assumes to be a complete statement of the facts, and without any doubt, had a controlling influence in the considerations of the jury. An instruction of this character must state the facts fully. Two of the witnesses for appellant, to wit: Killen and Moehlman, testified that the deceased did see the train before he arrived at the crossing, and whipped up his mules and tried to get across the track before the train came up. The statements of these witnesses was entirely ignored by the instruction, and the jury probably failed to consider them. St. L. & S. E. R. W. Co. v. Britz, 72 Ill. 260; Surdair v. Bunt, 87 Ill 174.

Where there is evidence tending to prove a fact, having an important bearing upon the law of the case, even though strongly contradicted, an instruction is erroneous which ignores the existence of such fact, taking it from the consideration of the jury. Chicago Pkg. & Prov. Co. v. Tilton, 87 Ill. 547.

The instruction is also erroneous,...