The Chicago v. Gregory
| Decision Date | 31 January 1871 |
| Citation | 1871 WL 7920,58 Ill. 272 |
| Court | Illinois Supreme Court |
| Parties | THE CHICAGO, BURLINGTON & QUINCY RAILROAD CO.v.ELIZABETH GREGORY, Administratrix, etc. |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of Adams county; the Hon. JOSEPH SIBLEY, Judge, presiding.
Messrs. BROWNING & BUSHNELL, for the appellant.
Messrs. WARREN & WHEAT, and Messrs. WHEAT & MARCY, for the appellee.
This action was brought under the act of 1853, by the administratrix, to recover damages for the death of Charles M. Bennett, whose death, it is alleged, was occasioned by the wrongful act and negligence of the railroad company.
The accident occurred at Cliola station, on the appellant's road. The deceased, at the time he received the injury which resulted in his death, was a fireman on the locomotive, and in the employ of the company. It is alleged that the company negligently and carelessly permitted the mail-catcher to stand in close proximity to the track, thereby greatly and unnecessarily endangering the lives and safety of the employees of the company while in discharge of their duties, and that by reason of such carelessness and negligence, Bennett, while in the discharge of his duties as fireman, and in the exercise of due care and caution, was brought in sudden and violent contact therewith, and from the collision received the injuries from which he died.
What are called “mail-catchers” are of modern invention, and it appears they have been placed upon lines of railroads, under the supervision of the postal department of the United States. They are placed at the side of the track, for the purpose of facilitating the transportation of the mails. From the evidence, we understand they are of uniform construction, and that it is the general practice to place them about the same distance from the track. A witness, who is familiar with their structure and use, describes them and their position with regard to the track, as follows:
The post, or crane, to which the mail-bag is suspended, is fixed in a square box filled with stone or other material, to give sufficient weight to overcome the resistance of the instrument attached to the car that catches the bag. The distance of the upright post which supports the arm from which the bag is suspended, from the inside of the nearest rail, is seven feet. The distance from the end of the arm from which the bag is suspended, to the inside of the nearest rail, is three and a half feet. The upper arm is ten feet above the rail; the lower arm is seven and a half feet above the rail, and drops when the bag is removed; and the projecting arm of the crane, from which the mail-bag is suspended, is from seven to ten inches from the side of the coaches as they pass, varying in distance according to the construction of the different coaches used.
Witnesses of large experience, whose depositions were read upon the trial, all concur in the opinion, that when the mail-catchers are placed at the proper and usual distance from the track, they are not dangerous to the operatives of the road. They can be readily seen at a considerable distance, and by the use of ordinary care and prudence all danger can be avoided. It appears they have been quite generally introduced on all roads that run fast trains, and they have operated to facilitate the transmission of the mails on express trains, by enabling them to receive the mail while running at full speed.
The testimony of a number of witnesses familiar with the operation of these contrivances, has been taken, and it does not appear that any accident, within their knowledge, has occurred from their use, except the one at Cliola station on the appellant's road, although such inventions have been in use for a considerable period, in this State. It may therefore be assumed, as a fact established by the evidence, that if the mail-catcher is placed a proper distance from the track, it is not at all dangerous to the employees of the company operating the trains.
Among the questions of fact submitted to the jury, were, 1st, was Bennett killed by a collision with the mail-catcher at Cliola station? 2d, was it placed at a proper distance from the track to render it safe to the operatives of the road, using ordinary care and caution? and 3d, was the company guilty of negligence in permitting it to stand in such close proximity to the track as would make it dangerous?
The finding of the jury was against the appellant on these issues, and by the fourth assignment of errors it is insisted that the verdict is against the law and the evidence. The law is well settled, that before a party can recover in such cases, it is necessary to prove, 1st, that the accident was occasioned by the wrongful act, neglect or default of the defendant, and 2d, that the party injured was in the exercise of due and proper care, and that the injury was not the result of his own negligence and want of proper precaution.
It is said there is no evidence in the record, proving or tending to prove, either care or caution on the part of appellee's intestate, or wrongful act, neglect or default on the part of the company.
It is not, ordinarily, the province of this court to re-investigate questions of fact which have been submitted to the jury. The rule is, that where there is evidence from which the jury could properly find their verdict, it will not be disturbed, although the evidence might, in the opinion of the appellate court, justify a different construction. If there is a total failure of evidence, or if the verdict is manifestly against the weight of the evidence, it is the duty of the court to award a new trial and submit the cause to another jury. Lowry v. Orr, 1 Gilm. 70.
We have most carefully considered the entire evidence contained in the record, and we can not say there is a total failure of evidence to support the verdict, or that it is so manifestly against the weight of the evidence that an appellate court would, for that reason alone, award a new trial.
We can not doubt that Bennett was killed by a collision with the mail-catcher at Cliola station. It is true, there is no direct evidence as to the manner of his death, but we do not think we are left to mere conjecture as to the cause. The attending circumstances leave no rational doubt on the mind as to the cause of his death. No other plausible theory has been, or can be, suggested, consistently with the evidence. The evidence makes no other impression on our minds, and we doubt not that it made the same impression on the minds of the jury. But it is insisted there is no evidence that the deceased was in the exercise of due care and caution at the time of the casualty. If it is meant that there is no direct testimony bearing on that question, it may be conceded. But are there no facts and circumstances in this case, illustrative of the conduct of the deceased, equally strong and convincing as would be direct testimony itself? The law only requires the highest proof of which the case is susceptible, or that can reasonably be made. It does not require impossible things. What would amount to sufficient proof in one case, might be deemed insufficient in another. It would be exceedingly difficult to lay down any rule of universal application, and each case must therefore rest upon its own facts and circumstances.
No one saw the fatal accident, in this instance, and consequently there was no one to detail the particulars. The lips of the party injured have been sealed in death, and at the fatal moment, the attention of his only companion was turned in another direction. The appellee has produced the only and the highest possible evidence of which the nature of the case would admit; but the evidence is not silent as to the manner of Bennett's death, or as to the degree of care used by him. There is evidence that enlightens both inquiries. It is true, the evidence is of a circumstantial character, but it is none the less convincing for that reason.
The accident occurred in the darkness of the night. There was nothing that could give Bennett any possible warning of the danger he was approaching. But a moment before, he was at his post in the discharge of his proper duties. It was shown that it was the duty of the fireman, when approaching such stations, to look out for signals. In looking for signals, the testimony shows it was customary and usual for the fireman to look out at the front window, and sometimes at the side window or gangway. The deceased was at his station on the left side of the locomotive, and on the side where the mailcatcher stood. The track made a slight curve before reaching the station, which obstructed the view to some extent, and made it necessary for the fireman to look out at the side window or gangway, to observe whether any signals were given. We can not resist the conclusion, that the fatal collision occurred while Bennett was looking out of the side window or gangway for signals, in discharge of the necessary duties imposed upon him by his employment. Up to within a moment of the accident, he was shown to have been in the exercise of due care, and in his proper place, and it would do violence to the facts in the case to presume that in the instant that intervened he was guilty of negligence, in the absence of proof of any circumstances that even tend to establish the fact of negligence.
Ordinarily, when such accidents occur, there are living witnesses to detail the particulars. Undoubtedly the general rule is, that it must affirmatively appear that the injured party was in the exercise of due care and caution. This material fact may be made to appear by circumstantial, as well as by direct evidence. It is immaterial how the proof is made, so the fact is made to distinctly appear. In this case the evidence is circumstantial, and consists of facts and circumstances developed, and we can not say that the evidence is not sufficiently strong to warrant...
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