The Chicago v. Johnson

• Decision Date: 21 June 1882
• Citation: 103 Ill. 512,1882 WL 10348
• Parties: THE CHICAGO, BURLINGTON AND QUINCY RAILROAD COMPANYv.THOMAS L. JOHNSON, Admr.
• Court: Illinois Supreme Court

103 Ill. 512

1882 WL 10348 (Ill.)

THE CHICAGO, BURLINGTON AND QUINCY RAILROAD COMPANY

v.THOMAS L. JOHNSON, Admr.

Supreme Court of Illinois.

Filed at Ottawa Jun. 21, 1882.

OPINION TEXT STARTS HERE

APPEAL from the Appellate Court for the Second District;--heard in that court on appeal from the Circuit Court of Kendall county; the Hon. CHARLES KELLUM, Judge, presiding.

This suit was instituted in the circuit court by Thomas L. Johnson, as administrator of Christian L. Johnson, deceased, against the railroad company, to recover damages for the death of the plaintiff's intestate, occasioned, as is alleged, by the negligence of the company in the management and running of a locomotive and train of cars. Upon a trial the plaintiff recovered a judgment for the sum of $1500, from which the defendant appealed to the Appellate Court for the Second District, where the judgment was affirmed. The railroad company thereupon appealed to this court. The principal question presented in the case arises upon certain instructions given at the instance of the plaintiff, relating to the measure of care, under the circumstances shown by the evidence to have existed, imposed upon the respective parties. The defendant company also objected that the trial court permitted witnesses to give their opinions as to the rate of speed at which the train was running when the accident occurred, and that the widow of the deceased was allowed to testify that she and a minor child were entirely dependent on his labor for their support.

Mr. CHARLES WHEATON, for the appellant:

To warrant a recovery, the party injured must have exercised ordinary care, or the injury must have been wantonly inflicted. Chicago and Northwestern R. R. Co. v. Sweeney, 52 Ill. 325; Chicago and Alton R. R. Co. v. Gretzner, 46 Id. 74; Chicago, Burlington and Quincy R. R. Co. v. Van Patten, 64 Id. 510; Illinois Central R. R. Co. v. Green, 81 Id. 19; Chicago, Burlington and Quincy R. R. Co. v. Lee, 68 Id. 576; Illinois Central R. R. Co. v. Hetherington, 83 Id. 510; Chicago, Burlington and Quincy R. R. Co. v. Colwell, 3 Bradw. 548; Lake Shore and Michigan Southern R. R. Co. v. Berlink, 2 Id. 427; Town of Earlville v. Carter, 2 Id. 34.

The running of a train at a rate of speed prohibited by ordinance, raises no presumption the injury was willful or wanton. Illinois Central R. R. Co. v. Hetherington, 83 Ill. 510; Artz v. Chicago, Rock Island and Pacific R. R. Co. 34 Iowa, 153; Railroad Co. v. Hunton, 33 Ind. 335; Railroad Co. v. Houston, 5 Otto, 697.

Nor does the omission to ring the bell or sound the whistle raise such presumption. Chicago, Burlington and Quincy R. R. Co. v. Lee, 68 Ill. 576; Chicago, Rock Island and Pacific R. R. Co. v. McKean, 40 Id. 218.

The witnesses who were allowed to testify to the speed of the train were not shown to have been competent to give an opinion. A witness must have some knowledge of that concerning which he gives an opinion. Cooper v. Randall et al. 59 Ill. 317; Chicago and Northwestern R. R. Co. v. Ingersoll et al. 65 Id. 399.

And it must be shown that he was competent to give an opinion. Chicago and Alton R. R. Co. v. Springfield and Northwestern R. R. Co. 67 Ill. 142.

The instructions given for the plaintiff do not state the law of comparative negligence correctly, and were calculated to mislead. The fact that proper instructions were given for the defendant will not cure the error in those given for the plaintiff. Camp Point Manufacturing Co. v. Ballou, 71 Ill. 417; Ottawa, Oswego and Fox River Valley R. R. Co. v. McMath, 4 Bradw. 356; Morris v. Gleason, 1 Id. 510.

The court erred in admitting evidence that the widow and minor child of the deceased were entirely dependent upon his labor for their support. Chicago, Rock Island and Pacific R. R. Co. v. Henry, 7 Bradw. 322; Eagle Packet Co. v. Defries, 94 Ill. 598.

Mr. A. C. LITTLE, and Mr. RANDALL CASSEM, for the appellee:

The defendant was guilty of gross negligence in running its train at a rate of speed prohibited by ordinance, and dangerous to the public safety, at the time and place when it killed the plaintiff's intestate. Chicago and Alton R. R. Co. v. Gregory, 58 Ill. 256; Chicago and Alton R. R. Co. v. Beacher, 84 Id. 483; Toledo, Peoria and Warsaw R. R. Co. v. Deacon, 63 Id. 91; Wabash Ry. Co. v. Henks, 91 Id. 412.

Any person of ordinary knowledge may testify to his judgment of the speed of a train or vehicle. That is not a question for experts. Salter v. Utica and Black River R. R. Co. 59 N. Y. 631; Detroit R. R. Co. v. Van Steinberg, 17 Mich. 99.

Facts discernible by judgment or estimate, but not requiring special knowledge or skill, are not regarded as matters of opinion. Abbott's Trial Evidence, 587.

Irrespective of any ordinance, it is the duty of a railroad company to run its trains, while in a city or village, with reference to public safety, and at such a speed as to have them under control to avoid injury, and a failure to do so is gross negligence. Wabash Ry. Co. v. Henks, 91 Ill. 412; Chicago and Alton R. R. Co. v. Engle, 84 Id. 399.

Counsel reviewed the evidence to show that plaintiff's intestate was not guilty of negligence under the circumstances, or that it was slight, if any, but contended that whether or not he was, was a question of fact for the jury, citing Grayner v. Old Colony and Newport Ry. Co. 100 Mass. 208; Indianapolis and St. Louis Ry. Co. v. Evans, 86 Ill. 63; Chicago and Alton R. R. Co. v. Pennell, 94 Id. 448.

The jury having found on that question in favor of plaintiff, this court should not disturb the finding. Illinois Central R. R. Co. v. Benton, 69 Ill. 174.

No objection was taken on the trial as to the evidence of the pecuniary circumstances of the widow and child of the intestate, and it can not be urged in this court. Littech v. Mitchell, 73 Ill. 603; Wickencamp v. Mitchell, 77 Id. 92; Gillespie v. Smith, 29 Id. 473.

It was competent and proper to show how much plaintiff's intestate earned, and that he left a wife and minor child who shared his income. Chicago and Northwestern R. R. Co. v. Moranda, Admx. 93 Ill. 302.

The injured party guilty of want of ordinary care may still recover if the carelessness has been gross and his slight in comparison therewith. Chicago and Northwestern Ry. Co. v. Clark, 70 Ill. 276; East St. Louis Packing and Provision Co. v. Hightower, 92 Id. 139; Chicago, Burlington and Quincy R. R. Co. v. Howard, 90 Id. 425; Village of Kewanee v. Depew, 80 Id. 119; Jacksonville and St. Louis R. R. Co. v. Grabble, 88 Id. 242; Chicago and Northwestern Ry. Co. v. Dimick, 96 Id. 42.

The jury are the judges of the relative carelessness. 8 Bradw. 135.

To instruct the jury that if the plaintiff failed to exercise ordinary care he was guilty of gross negligence, and that if injured for want of ordinary care, etc., no action will lie, unless defendants wantonly or willfully, etc., is unsound law. Stratton v. Central City Horse Ry. Co. 96 Ill. 25.

Mr. JUSTICE SCHOLFIELD delivered the opinion of the Court:

The declaration contains two counts. In the first the allegation is general that the defendant negligently drove and managed its locomotive, etc. In the second the negligence alleged is in driving its engine, etc., at a rate of speed prohibited by an ordinance of the town of Plano.

At the time he received the fatal injury, plaintiff's intestate was in the employ of a firm engaged in the manufacture of the “Marsh Harvester,” at the shops of the company of that name, at Plano. For the convenience of those in charge of these shops, a switch had been laid on the grounds of the Marsh Harvester Company, connecting with defendant's main track, which was used by those in charge of the shops for unloading materials shipped to the shops, and for loading machines to be shipped from the shops. In one of the buildings used for shops was a saw room, the door of which opened towards this switch, and within ten or twelve feet of it. It was the duty of plaintiff's intestate, in conjunction with several others, to take lumber out of the saw room by that door and across the track to another part of the grounds of the “Harvester” Company. While thus occupied, and as he was passing over this switch with a load of lumber on his shoulder, one of the defendant's trains, which was being backed along the side-track, struck and instantly killed him. The evidence tended to show that the defendant did the switching for the shops twice a day, at fixed regular hours, which were generally known to the employés in and about the shops; that the plaintiff's intestate had been engaged in the performance of the duties that he then was performing, for several months; that others saw the approaching train and gave him warning, and that, by looking in the proper direction, the train could have been observed in time to have avoided the injury. As to the weight of this evidence, it is not our province to express any opinion. It is sufficient to state there was evidence of this tendency before the jury. There was also a conflict in the evidence as to the rate of speed at which the train was moving,--some evidence tending to show that it was less than that allowed by the ordinance of the town of Plano, and some tending to show that it was greater.

Among other instructions given by the court at the instance of the plaintiff, were the following:

“1. The jury are instructed that the fact that a municipal corporation by ordinance prohibits the running of engines, locomotives and railway trains at a certain rate of speed, as, per example, six miles an hour, through its corporate territory, does not warrant or license the running of such trains at such rate of speed. It is the duty of those having the management and control of such engines, locomotives and trains, to conform the rate of speed to the safety of the public at all places where such a rate of speed would probably cause the death of individuals or endanger their personal safety. If, therefore, the jury believe, from all the...