The Chicago v. Murray
| Citation | 1874 WL 8733,71 Ill. 601 |
| Parties | THE CHICAGO AND ALTON RAILROAD COMPANYv.ELLEN MURRAY. |
| Decision Date | 31 January 1874 |
| Court | Supreme Court of Illinois |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of McLean county; the Hon. THOMAS F. TIPTON, Judge, presiding.
Messrs. WILLIAMS, BURR & CAPEN, for the appellant.
Mr. W. W. O'BRIEN, Messrs. STEVENSON & EWING, and Messrs. HUGHES & MCCART, for the appellee.
This was an action on the case, brought by appellee against appellant, in the circuit court of McLean county. A trial was had before a jury, and appellee obtained a verdict for $8100. The court overruled a motion for a new trial, and rendered judgment upon the verdict.
As is shown by the record, Ellen Murray, appellee, on the 30th day of July, 1870, while crossing the railroad track of appellant, where the road is intersected by Chestnut street, in the city of Bloomington, was run over by an engine, one leg cut off, her right hand crushed in such a manner that it was necessary to amputate two fingers, besides being otherwise injured. At the time, appellee was a small girl, seven years and eight months old.
Appellee bases her right of recovery upon the ground that the accident occurred from the gross negligence of the servants of the railroad company, and that she was exercising ordinary care; or if there was negligence on her part, it was slight, in comparison with that of the company. On the other hand, it is insisted by appellant that the injury received by appellee was caused by gross negligence on her part.
The principal errors relied upon by appellant to reverse the judgment are: 1st. The court erred in refusing to render judgment for appellant on the special verdict. 2d. The court erred in overruling a motion for a new trial. 3d. The 1st, 3d and 6th instructions given for appellee are erroneous.
At the instance of appellee, the jury returned a special verdict as follows, in reply to the following interrogatories:
“1. Was the defendant or its servants guilty of gross negligence in the management of the engine at the time plaintiff was struck? Ans.--Yes.
2. Did the negligence of the defendant (if any) greatly preponderate over the negligence of the plaintiff? Ans.--Yes.
3. Could the engineer or fireman in charge of the engine have avoided the injury to plaintiff by looking in the direction in which the engine was going at the time plaintiff was struck? Ans.--Yes.
4. Was the watchman of defendant attending to his duty on the crossing at the time plaintiff was struck. Ans.--No.
5. If the jury find such watchman was not attending to his duty at the time of the injury, then they will answer whether or not he could have prevented the injury by attending to his duty at that time? Ans.--Yes.”
And to the following interrogatories on behalf of the defendant:
“1. Was the plaintiff, at the time of the injury, of sufficient age and discretion to justify her parents in sending her across this crossing unaccompanied by any one? Ans.--Yes.
2. Was the plaintiff, at the time of the injury, of sufficient age and discretion to know that a locomotive engine in motion was a dangerous thing, and that if one should run over her it would kill or injure her? Ans.--Yes. 3. Was the plaintiff, at the time of the injury, of sufficent age and discretion to know that it was her duty, before attempting to cross a railroad track, to look to see if a train or engine was about to cross the same place at the same time? Ans.--Yes.
4. Could the plaintiff, by looking before her, and exercising due care, have seen the engine and avoided the injury? Ans.--Yes.
5. Did the plaintiff know that an engine in motion was dangerous? Ans.--Yes.
6. Did the plaintiff look to see whether or not trains or engines were crossing the street on the track before she stepped on the track? Ans.--We find that there was no proof upon the question.”
The act of 1872, in regard to practice in courts of record, section 51, declares, the court may, at the request of either party, require the jury to return a special verdict upon any fact or facts in issue in the cause, which shall be entered of record and proceedings had thereon as in other cases. When the special finding of the fact is inconsistent with the general verdict, the former shall control the latter, and the court shall give judgment accordingly.
Was there in this case such an inconsistency between the general verdict and the special finding, as required the court to set aside the general verdict? We think not. Had the court disregarded entirely the special finding at the instance of appellee, and considered the special finding at the request of appellant, then, perhaps, the court would have been justified in granting the motion of appellant to set aside the general verdict.
But by the special verdict which was rendered in reply to interrogatories of appellee, the jury found appellant guilty of gross negligence in the management of the engine; that the negligence of appellant greatly preponderated over that of appellee. It was the duty of the circuit court, in passing upon the special finding of the jury, to examine and consider it as a whole, and if the special finding thus considered was not inconsistent with the general verdict, to render judgment upon the general verdict. Upon this plan of construction, which we have no doubt was adopted by the circuit court, it appears, by the answer to appellant's 4th interrogatory, that appellee was guilty of negligence, but by the answer to the 1st interrogatory of appellee, it appears that appellant was guilty of gross negligence; and by the answer to the 2d interrogatory, it seems the jury found the negligence of appellant greatly preponderated over that of appellee. The only reasonable construction to be placed upon these special findings is, that the negligence of appellee was slight, in comparison with that of appellant, and when the special verdicts are considered together, there is not such an inconsistency between them and the general verdict as to authorize the court in disregarding the general verdict.
Under the second ground urged for a reversal of the judgment, it is argued that the special finding of the jury is against the weight of evidence. We shall not stop to inquire whether the numerous special findings in this case are all of them sustained by the weight of the evidence. We have no doubt the deliberations of the jury are, in many cases, embarrassed by voluminous instructions, drawn by ingenious counsel, calling for special findings, and the practice ought...
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