The Chicago & Nw. Ry. Co. v. Clark

• Court: Appellate Court of Illinois
• Writing for the Court: LELAND, J.
• Citation: The Chicago & Nw. Ry. Co. v. Clark, 2 Ill.App. 116, 2 Bradw. 116 (Ill. App. 1878)
• Decision Date: 30 June 1878
• Parties: THE CHICAGO & NORTHWESTERN RAILWAY CO.v.CATHARINE E. CLARK, Adm'x.

2 Ill.App. 116

2 Bradw. 116

THE CHICAGO & NORTHWESTERN RAILWAY CO.

v.CATHARINE E. CLARK, Adm'x.

Appellate Court of Illinois, Second District.

June Term, 1878.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Whiteside county; the Hon. W. W. HEATON, Judge, presiding.

Mr. B. COOK, for appellant; that plaintiff cannot declare for negligence in running an engine, and recover for placing a car in an unsafe place to be unloaded, cited Cent. Mil. Tract R. R. v. Rockafellow, 17 Ill. 541; Mayer v. Humphrey, 1 C. &. P. 251; Moss v. Johnson, 22 Ill. 633; Sherman v. Blackman, 24 Ill. 350; Cast v. Roff, 26 Ill. 452; Ill. Cent. R. R. Co. v. McKee, 43 Ill. 119; McKenney v. Neel, 1 McLean, 551; Angell on Carriers, § 592.

That declarations of the company's agent, made after the fact, are not admissible: 1 Greenleaf on Ev. § 113; Linblom v. Ramsey, 75 Ill. 246; M. C. R. R. Co. v. Carrow, 73 Ill. 348; M. C. R. R. Co. v. Gougar, 55 Ill. 503; C. & N. W. R'y Co. v. Fillmore, 57 Ill. 265; C. B. & Q. R. R. Co. v. Lee, 60 Ill. 501; C. B. & Q. R. R. Co. v. Riddle, 60 Ill. 534.

The care and caution of a plaintiff is not confined to the very time of the injury, but the question is also involved whether he was justified in being where he was at the time and under the circumstances: Ill. Cent. R. R. Co. v. Weldon, 52 Ill. 290; Keokuk Packet Co. v. Henny, 50 Ill. 264; Quinn v. Ill. Cent. R. R. Co. 51 Ill. 495.

As to the rule of damages in such cases: C. & N. W. R. R. Co. v. Jackson, 55 Ill. 497.

Instructions not based on evidence are erroneous: Ind. & St. L. R. R. Co. v. Miller, 71 Ill. 463; Andreas v. Ketcham, 77 Ill. 377; American v. Rimpert, 75 Ill. 228; Ill. Cent. R. R. Co. v. Cragin, 71 Ill. 177; Ill. Cent. R. R. Co. v. Benton, 69 Ill. 174; Holden v. Hulburd, 61 Ill. 280; Paulin v. Hawser, 63 Ill. 312.

There must be negligence on the part of defendant, and no want of ordinary care on the part of the plaintiff, to warrant a recovery: C. B. & Q. R. R. Co. v. Van Patten, 64 Ill. 510; R. R. I. & St. L. R. R. Co. v. Coultas, 67 Ill. 398; C. B. & Q. R. R. Co. v. Lee, 68 Ill. 576.

The act of leaving horses unhitched, or driving skittish horses in close proximity to a locomotive, is negligence: Deville v. Southern P. R. R. Co. 50 Cal. 383; P. W. & B. R. R. Co. v. Stinger, 2 Cent. Law Jour. 555.

The verdict of the jury was found under improper instructions of the court, and hence should have no weight: T. W. & W. Ry. Co. v. Moore, 77 Ill. 917; Ill. Cent. R. R. Co. v. Hammer, 72 Ill. 347; Volk v. Roche, 70 Ill. 297.

Mr. F. SACKETT and Mr. W. H. BENNETT, for appellee; that a railroad company is liable for the negligence of its servants: cited G. & C. U. R. R. Co. v. Loomis, 13 Ill. 548; G. W. R. R. Co. v. Geddis, 33 Ill. 304.

Upon the question of comparative negligence: C. B. & Q. R. R. Co. v. Payne, 48 Ill. 499; C. B. & Q. R. R. Co. v. Triplett, 39 Ill. 482.

That deceased was not guilty of contributory negligence, in unloading cars at a point designated by the company: Newson v. N. Y. Cent. R. R. Co. 29 N. Y. 383; Spooner v. Brooklyn City R. R. Co. 54 N. Y. 230; Ill. Cent. R. R. Co. v. Schultz, 64 Ill. 172; Ill. Cent. R. R. Co. v. Hoffman, 67 Ill. 286.

The degree of care to be exercised by railroad companies, depends upon the circumstances of the case: T. W. & W. R. R. Co. v. Miller, 76 Ill. 278; Schmidt v. C. & N. W. R'y Co. 83 Ill. 403.

Negligence is a question of fact to be determined by the jury: I. & St. L. R. R. Co. v. Stables, 62 Ill. 313; Nor. Line Packet Co. v. Binninger, 70 Ill. 571; Ill. Cent. R. R. Co. v. Cragin, 71 Ill. 177.

Where the evidence is contradictory, involving the credibility of witnesses, the verdict should not be disturbed except in a very clear case: Carey v. Henderson, 61 Ill. 378; Chicago City R'y Co. v. Young, 62 Ill. 238; Dietrich v. Rumsey, 45 Ill. 209; Davis v. Hoeppner, 44 Ill. 306; C. B. & Q. R. R. Co. v. Dickson, 63 Ill. 151.

As to the rule of damages: Ill. Cent. R. R. Co. v. Weldon, 52 Ill. 290; Tilley v. Hud. R. R. R. Co. 29 N. Y.

If substantial justice has been done, the verdict will not be disturbed. Dishon v. Schorr, 19 Ill. 59; Schwarz v. Schwarz, 26 Ill. 81; Rice v. Brown, 77 Ill. 549; Cuttingham v. Owen, 71 Ill. 397; Sterling Bridge Co. v. Baker, 75 Ill. 139.

LELAND, J.

This was an action on the case for the damages consequent upon the death of a husband, sustained by his widow and next of kin, alleged to have been caused by the negligent management of a switch engine of the appellant, at a station. At Sterling there were many railroad tracks, the general course of which, at the place of the injury, was east and west, converging, of course, at the east and west ends of the depot grounds into the track, as it is between stations. Among these tracks, there were four substantially parallel, at and near the place of collision. The northern one was called the house track; the next one south, and fourteen feet eight inches therefrom, was named the Morrison track; the next, thirty-one feet south from the Morrison, was called the main track, and the other was a more southern one, and a safer place for loading and unloading cars, and on which cars were often placed for that purpose.

The deceased was loading wheat from cars on the house track into a two-horse wagon, to be hauled to a mill south of all the tracks, and less than a quarter of a mile from the place of loading. It appears, without conflict, that the deceased preferred this place of loading, as more convenient than the one at the southernmost of the four tracks, mainly because the neighborhood of the last named place was more muddy. It also appears that appellant, to some extent, tolerated this preference of the deceased, and allowed him and others to load their wagons out of cars at the house track opposite the freight house, which was close to it on the north of it.

Deceased was a vigorous man, and evidently not a timid one--one who prided himself upon his skill in the management of a team of horses. He considered the danger of loading at the house track as of little moment, and was perfectly willing to exchange the greater safety and more inconvenience of the southern track, for the greater convenience and less safety, if any in his estimation, of the house track, and frequently did so.

After having said thus much about the two southernmost tracks, we may dismiss them as of no further use in this opinion, and confine ourselves to the two northernmost ones. There were three freight cars on the house track, immediately south of the freight house. Deceased had hauled six loads to the mill, and he was about loading the seventh and last, out of the center car. He was just upon the point of driving his team up alongside of the center car. The switch engine was coming on the Morrison track, headed east. The horses on the wagon were headed nearly west. The off-horse, the one nearest the freight car, was not a safe one, and deceased knew it; the near horse, a black, was. The off-horse had run away, and was afraid of an engine and cars, and deceased had frequently been told he was unsafe. He was the successor of a safe mate of the black. As the engine came towards the place of collision, its speed was slackened, and its motion must have been quite slow--nearly stopped when the collision took place. We do not perceive in what respect the engineer and fireman managed the engine improperly. It is a little difficult to describe exactly how the wagon and engine came in contact; but about one thing there seems to be no conflict, and that is, that the southernmost hind wheel of the wagon and the cylinder on the north side of the engine came together, so as to dent or bruise the brass of the cylinder, and that the position of the wagon at the time of contact was longitudinally nearly northwest and southeast; and it is also almost conclusively shown that the wagon was backing instantly before the contact. If while the backing was in progress, the wagon tongue and reach formed one right line, the hind wheel would make a right line track. If the end of the wagon tongue was south of the line of the reach, the track of the hind wheel would be curved with the convex side to the north. If the end of the tongue was to the north of the line of the reach, the track would be also curved, but with convexity towards the south.

For all practical purposes, if there were backing southeastwardly so that the south hind wagon wheel came in contact with the north cylinder, we may take the above case of a right line track of the hind wheel, we would then have the wagon moving southeasterly, the engine slowly easterly, and contact as above. What is the effect upon a man standing in the wagon, where men usually stand while driving? The momentum of the wagon is destroyed by the contact. The momentum of the center of gravity of the man continues, throwing it outside of the base southeasterly. The south side-board of the wagon prevents the man from saving himself, and he plunges diagonally southeastwardly over the side-board. If the contact of the locomotive, moving eastwardly, should slide the wagon laterally northward, the base of the man would move northwardly faster than the center of gravity, and the fall would be aided and made more southward. The man, thus falling, so fell that an engine-wheel passed over his arm. There was amputation, and he died in two days. Probably the headlong fall, rather than the crushing of the arm and amputation thereof caused the death. That it would not have happened if the predecessor of the unsafe off-horse hand been by the side of the safe near horse, no one can doubt. He would have been safe enough as it was if he had got out in time, and stood at the head of the horses, or if he had called upon those who were helping him load, to take them by the bits, but he was evidently a man who did not like to ask any one to help him manage a pair of horses. He could attend to that himself.

We are not disposed to attach much importance to the...