The Chicago v. Notzki
| Decision Date | 30 September 1872 |
| Citation | 66 Ill. 455,1872 WL 8604 |
| Parties | THE CHICAGO, BURLINGTON AND QUINCY RAILROAD COMPANYv.JOHN NOTZKI. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of Peoria county; the Hon. SABIN D. PUTERBAUGH, Judge, presiding.
This was an action on the case, by the appellee against the appellant, to recover for injuries received at a public crossing on the track of defendant's road in the city of Peoria, on May 18, 1871. The injury was caused by the engine of one of defendant's trains colliding with plaintiff's team as he was crossing the track, which resulted in throwing plaintiff under the engine, when his hand was torn off. His horse was killed and his wagon broken to pieces. The negligence charged in the declaration was, that no bell was rung or whistle sounded at the time of the accident; that the train was running at a greater rate of speed than the ordinance of the city allowed, and that the company had suffered its trains and cars to remain standing upon the side-tracks in the vicinity so as to obstruct from view the approaching train. The proof showed that the plaintiff was in the habit of crossing the track at that place several times every day. The defendant offered to prove that it was usual for the several railroad companies occupying Water street to allow cars to stand on such street in the vicinity of the place of the accident, for the purpose of showing that the plaintiff knew the danger of the situation, which the court below refused to permit.
On the trial the defendant asked the court to give instruction numbered twelve, which is as follows:
“If the jury believe, from the evidence, that, at the time the plaintiff was approaching the place of the accident, there was a switchman in full view of the plaintiff, signaling the approaching train, and that said plaintiff saw said switchman so signaling said train, then, these are facts proper to be taken into consideration by the jury in determining whether or not the plaintiff was guilty of negligence in approaching the crossing of said railroad.”
This the court below refused to give. The trial resulted in a verdict and judgment in favor of the plaintiff for $5500, from which defendant appealed.
Messrs. MCCULLOCH & STEVENS, for the appellant.
Messrs. O'BRIEN & HARMON, and Mr. H. W. WELLS, for the appellee.
In giving the seventh instruction for plaintiff below, there was material error. The jury...
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