The Chicago v. Lee

• Decision Date: 30 September 1873
• Citation: 1873 WL 8397,68 Ill. 576
• Parties: THE CHICAGO, BURLINGTON AND QUINCY R. R. CO.v.MARY J. LEE, Admx.
• Court: Illinois Supreme Court

68 Ill. 576

1873 WL 8397 (Ill.)

THE CHICAGO, BURLINGTON AND QUINCY R. R. CO.

v.MARY J. LEE, Admx.

Supreme Court of Illinois.

September Term, 1873.

APPEAL from the Circuit Court of Henderson county; the Hon. ARTHUR A. SMITH, Judge, presiding.

This was an action on the case, brought by Mary J. Lee, administratrix of the estate of Darius B. Lee, deceased, against the Chicago, Burlington and Quincy Railroad Company, to recover damages for causing the death of her intestate, through negligence. A trial was had at the special November term, 1872, resulting in a verdict and judgment of $5000 for the plaintiff. The opinion states the material facts of the case.

Messrs. MILLER & FROST, for the appellant.

Messrs. DOUGLAS & HARVEY, for the appellee.

Mr. JUSTICE SCOTT delivered the opinion of the Court:

This cause was before us on a former appeal, and the judgment was then reversed for two reasons: First, the court admitted improper testimony, and second, the negligence of the deceased was fairly presented by the evidence, but it was thought the law as to the comparative negligence of the parties was not properly stated in the instructions given.

A second trial was had, by stipulation, on the same evidence taken on the previous trial, saving all objections to the competency of the testimony. A part of the testimony decided to be improper, again appears in this record. Enough was said in the former opinion to indicate what testimony should be excluded, and it is not necessary to repeat the views there expressed. It is suggested the testimony declared to be incompetent was in fact excluded, but is inadvertently found in this record. We can not know whether this is so or not. The record imports verity. It is error that the objectionable testimony appears in it, for which the judgment would have to be reversed if no other cause existed.

The errors assigned which most materially affect the decision of the case are:

First, The court erred in giving and modifying instructions.

Second, The verdict is contrary to the law and the evidence.

It will not be necessary to consider all the objections taken to the several instructions. Our observations upon a few of them will serve to indicate our views of the law that must govern the ultimate decision of the case.

The 18th instruction asked by appellant, states a correct principle of law, and ought to have been given without qualification. The substance is, if the deceased, in approaching the railroad crossing, failed to exercise that care for his personal safety which an ordinarily prudent man would do, and if by the exercise of such care he could have discovered the approaching train in time to stop his team, so as to have avoided the collision, then the law is, the appellee could not recover. The court modified the doctrine stated in the text of the instruction by adding the words to the first division, “unless the negligence of the defendant was greater than plaintiff's.”

This modification was unwarranted by the law, as announced in the previous opinion in this case, and in numerous decisions of this court. The law in regard to the comparative negligence of the parties has been so repeatedly explained, it would now be a work of supererogation to restate it.

It never has been held to be the law that the plaintiff could recover simply because the defendant was guilty of greater negligence in that which produced the injury. The adjudged cases all declare the reasonable doctrine, if the plaintiff was alone guilty of negligence, or if the negligence of the parties was equal, there could be no recovery. Formerly it was the rule, if the negligence of the plaintiff contributed to the injury, however slight, it would bar an action. This rule has been modified by more recent decisions, and it is now the settled law the plaintiff may recover notwithstanding he may have been guilty of contributory negligence, if his negligence is slight and that of the defendant is gross. It is an essential element to the right of action in all cases, the plaintiff or party injured must himself exercise ordinary care, such as a reasonably prudent person will always adopt for the security of his person or property.

There are, and can be, no degrees of gross negligence. The cases all go to the length of holding, where a party has been injured for the want of ordinary care, no action will lie, unless the injury is wilfully inflicted by the defendant. The words added to the instruction plainly informed the jury, plaintiff cound recover notwithstanding deceased had been guilty of a want of ordinary care for his safety, or even if guilty of gross negligence, if defendant was guilty of greater negligence. On the authority of previous decisions this was error. C. B. and Q. R. R. v. Lee, 60 Ill. 501; C. and A. R. R. Co. v. Gretzner, 46 Ill. 75; C. B. and Q. R. R. Co. v. Van Patten, 64 Ill. 510, and case cited.

The third and tenth instructions of the series given for appellee are liable to the same objections, and will be considered together. It is asserted, as a ground of liability, if the engine-driver saw the team and wagon passing over the Gale crossing in time to have checked or stopped the train before the collision occurred, it was his duty to do so. If it was only intended to declare it was the duty of the engine-driver, when he saw the deceased on the track, to use every possible means in his power to prevent a collision, the charges were undoubtedly correct; but in that view they could have no application whatever to the facts of the case, and for that reason, if for no other, ought to have been refused. The tendency was, to direct the attention of the jury to an element of liability not found in the evidence. The train was moving at a high rate of speed down a descending grade, and there is not the slightest evidence the engine-driver saw the team and wagon on the track until he was within a few rods of the crossing. Then it was impracticable to stop the train in time to avoid the accident. The proof is, a train moving at the rate of thirty miles an hour can not be stopped short of a distance of from sixty to seventy rods, on a level road, by the use of good brakes. Although an instruction may state a correct principle of law, yet if it is not applicable to the facts it may tend to mislead the jury, and ought to be refused. Bailey v. Godfrey et al. 54 Ill. 507.

The instructions, however, are susceptible of a different construction, and it may be the jury understood them in a still more objectionable sense. If it was intended to assert it was the duty of the engine-driver, when he saw Lee with his team approaching the crossing, to apply the brakes and stop the train, to allow him time to pass over, then, on the authority of the St. L., A. and T. H. R. R. Co. Manly, 58 Ill. 300, the doctrine announced was not the law. We think the instructions may have made that impression on the mind. They can illustrate no phase of the case if that is not their meaning.

The law has not made it the duty of a railroad company to check up its trains on discovering persons approaching a crossing from the highway. Such a regulation would be unreasonable. The obligation is imperative to sound the signals of danger, and it is incumbent on all persons traveling on the highway to wait until the train has passed. Even if the engine-driver saw Lee driving in the direction of the public crossing--the testimony, however, affords no grounds for such a belief--he had a right to expect, according to the known custom, he would stop, rather than attempt to pass in front of the train, that all the witnesses say was running at a high rate of speed. This point was expressly ruled in Manly's case, supra, and is conclusive of this view of the law.

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