The Chicago v. Dvorak

• Decision Date: 31 October 1880
• Citation: 7 Bradw. 555,7 Ill.App. 555
• Parties: THE CHICAGO, BURLINGTON AND QUINCY RAILROAD CO.v.JOSEPH DVORAK.
• Court: United States Appellate Court of Illinois

7 Ill.App. 555

7 Bradw. 555

THE CHICAGO, BURLINGTON AND QUINCY RAILROAD CO.

v.JOSEPH DVORAK.

Appellate Court of Illinois, First District.

October Term, 1880.

OPINION TEXT STARTS HERE

APPEAL from the Superior Court of Cook county; the Hon. SIDNEY SMITH, Judge, presiding. Opinion filed December 13, 1880.

This was an action on the case by appellee against appellant, to recover for personal injuries received by the former, by being struck by an engine while moving appellant's cars, while he, the appellee, in the exercise of reasonable care, was crossing appellant's railroad track on Twenty-second street, in the city of Chicago, the declaration containing two counts. The first, that the engineer neglected the statutory duty to ring a bell or sound a whistle. The second, that it was within the corporate limits of Chicago, and the train was running faster than at the rate of six miles per hour, in violation of a certain ordinance of the said city, in consequence of which appellee was injured. The case was tried by a jury under the general issue, and the evidence was conflicting upon every point essential to a recovery.

At the instance of appellee's counsel, the court gave the jury the following instruction:

“The jury are instructed that the statute law of the State of Illinois requires that every railroad corporation shall cause a bell of at least thirty pounds weight, or a steam-whistle, to be placed and kept upon each locomotive engine, and shall cause the same to be rung or whistled at the distance of at least eighty rods from the place where the railroad crosses or intersects any public highway, and the same shall be kept ringing or whistling until such highway is reached; and if the jury believe from the evidence that the plaintiff was struck by the locomotive of a train of cars, which was then operated by the defendant, while he was crossing the railroad on which said train was running, at an intersection with Twenty-second street, a public highway, with such care and diligence to avoid danger as could be expected from a boy of his age and capacity, and that at the time neither of the signals were given as required by the statute, then the plaintiff is entitled to recover damages for such injuries as the jury may believe from the evidence he has sustained from being so struck by said locomotive.”

To which exception was taken.

The counsel for defendant requested the court to give the following instruction on behalf of defendant, but which the court refused to give as asked, and modified and gave it as indicated below. In the following instructions the words in brackets were stricken out by the court, and the words in Italics added:

“1. The jury are instructed that the plaintiff in this case claims, as grounds for recovery, that at the time of the accident he was walking on Twenty-second street, at the crossing of the railroad of the defendant; that the bell on the defendant's locomotive was not rung at a distance of eighty rods from the said crossing, and kept ringing until the said crossing was reached, or that the train of the defendant was running at a greater rate of speed than six miles an hour when it crossed Twenty-second street; that he was struck by the locomotive engine of the defendant while walking on said street, and thereby sustained the injury for which he seeks to recover; that such accident was caused by the failure of defendant, or its servants, to ring said bell, or by such unlawful rate of speed, and that the plaintiff himself was exercising such care and caution at the time of such accident as a boy of his age could be expected to exercise; and if the jury find from the evidence that the plaintiff has [failed to] not establish ed by a preponderance of evidence [either of these allegations, their verdict should be for the defendant] either that the train was running at a greater rate of speed than six miles at the time of the injury, or the bell on defendant's locomotive was not rung at a distance of eighty rods from said crossing, and kept ringing till it reached said crossing, then he cannot recover in this case, and your verdict should be for the defendant.”

To the refusal to give said instruction as asked, and in modifying the same, the counsel for defendant excepted.

The jury found the defendant guilty, and assessed plaintiff's damages at $4,500. Defendant moved for a new trial, which the court overruled, and gave judgment on the verdict. The defendant brings the case to this court by appeal.

Messrs. DEXTER, HERRICK & ALLEN, for appellant; that the declaration in a cause is a statement of the particular facts of plaintiff's case, made presumably by his authority, and is competent evidence in the nature of an admission, cited Gordon v. Parmalee, 2 Allen, 212; Bliss v. Nichols, 12 Allen, 443; Parsons v. Copeland, 33 Me. 374.

As to the superior weight of affirmative evidence as against negative evidence: C. & I. R. R. Co. v. Still, 19 Ill. 500; C. & A. R. R. Co. v. Gretzner, 46 Ill. 74; C. B. & Q. R. R. Co. v. Lee, 86 Ill. 582; C. B. & Q. R. R. Co. v. Damerell, 81 Ill. 450.

A person approaching a railroad crossing must take every precaution to avoid danger, and if he neglects to do so, there can be no recovery for injuries received: St. L. A. & T. H. R. R. Co. v. Manly, 58 Ill. 300; C. B. &. Q. R. R. Co. v. Damarell, 81 Ill. 450; L. S. & M. S. R. R. Co. v. Hart, 87 Ill. 534.

A child of no more than eleven years of age may be chargeable with such negligence as to bar a recovery: Brown v. European & N. R. R. Co. 58 Me....