The Chicago v. Payne

• Decision Date: 31 January 1871
• Citation: 59 Ill. 534,1871 WL 8076
• Court: Illinois Supreme Court
• Parties: THE CHICAGO, BURLINGTON & QUINCY RAILROAD CO.v.THOMAS PAYNE, Administrator of ALBERT Y. PAYNE, Deceased.

59 Ill. 534

1871 WL 8076 (Ill.)

THE CHICAGO, BURLINGTON & QUINCY RAILROAD CO.

v.THOMAS PAYNE, Administrator of ALBERT Y. PAYNE, Deceased.

Supreme Court of Illinois.

January Term, 1871.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Hancock county; the Hon. JOSEPH SIBLEY, Judge, presiding.

Messrs. BROWNING & BUSHNELL, for the appellant.

Messrs. SKINNER & MARSH, for the appellee.

Mr. JUSTICE MCALLISTER delivered the opinion of the Court:

This is an appeal from the judgment of the Adams circuit court, rendered in an action brought under the act of 1853, by appellee, as administrator of Albert Y. Payne, deceased, against appellant, to recover, for the benefit of the next of kin of deceased, the damages resulting from his death, which was caused, as it is alleged, by the wrongful acts, neglect and default of appellant's servants.

The general grounds relied upon for reversal are: 1st, error in overruling appellant's motion for a new trial; 2d, error both as to giving and refusing instructions.

The first of these grounds is narrowed down, by the argument of appellant's counsel, to a single point, though that is presented in a double aspect, viz: that, by the uncontradicted evidence, or the clear weight and preponderance of evidence, the deceased was himself guilty of gross, or at least some, contributory negligence, and in either case there could be no recovery. The doctrine, that any contributory negligence by the party injured, no matter how slight when compared with that of the defendant, will defeat a recovery, has been repeatedly repudiated by this court, and in no case more directly than in this, when previously before us, on appeal from a former judgment. C., B. & Q. R. R. Co. v. Payne, 49 Ill. 499.

But the questions remain to be considered under the first head of appellant's argument: Was the deceased guilty of the gross negligence imputed to him by counsel? And should the new trial have been granted?

In seeking a solution of these questions, we find, from the voluminous evidence in the case, and the contrariety of its tendency, that, notwithstanding the effort of appellant's counsel to narrow the question down to a single phase, as though it rested upon the uncontradicted testimony of credible witnesses, we must, nevertheless, pursue the inquiry upon the broad proposition, whether the verdict is so clearly and manifestly against the weight and preponderance of the evidence on the whole case, as that we should reverse for that reason. To consider the question of negligence on the part of deceased apart and isolated from its relation to that of appellant's servants, is to disregard the very spirit of the rule by which such cases must be governed. See Galena & Chicago Union Railroad Co. v. Jacobs, 20 Ill. 478, for the rule of this court, and which it has been the intention to adhere to throughout the subsequent decisions.

The injury occurred just at evening on the 14th day of July, 1866, about two and a half miles from the city of Quincy, at a point where a common public road, leading from Quincy to Warsaw, in a northeast direction, is crossed by appellant's railroad. At this point, which is commonly known as the “Warsaw Crossing,” the highway runs due north and south, and the railroad almost due east and west, so that they cross each other nearly at right angles. The crossing is in a hollow between two hills--that on the north being called Col. Jamison's Hill, and the one on the south the Streeter Hill. The top of the Streeter hill is about 31 feet higher than the crossing, the distance being about 480 feet from the top of the hill to the crossing. Down this hill the highway runs in a cut varying from about 3 feet to 7 feet in depth, with an ordinary rail fence some 4 or 5 feet high on top of the embankment on the east side down to the crossing. The highway is 16 feet wide down to the crossing, and there it is only 12 feet wide, with a culvert on each side of it. East of the crossing the railroad itself runs in a cut, which is upwards of 7 feet deep at the crossing, upwards of 10 feet deep 150 feet east of it, and from that point it gradually lessens in depth until, at the distance of about 465 feet, it runs out upon the natural surface. About 80 rods east of the crossing was the ordinary whistle post, and there was no sign board at or near the crossing, as required by statute. From Cliola station, about five and a half miles east of the crossing, all the way to Quincy, there is an easy down grade, so that trains run from Cliola to Quincy without the use of steam, and at a rate of speed varying from fifteen to twenty-five miles per hour.

Such, substantially, was the relative situation of the Warsaw road and the railroad, when young Payne, the deceased, then being between nineteen and twenty years of age, with a steady horse attached to a top buggy, with two lads, William H. Jones and Charles Letton, riding with him, came down the Streeter hill, from the south, and approached the crossing. Just before them a man of the name of Donohue was driving, on a slow trot, with a buggy and a lady in it, and hearing or seeing no train, he passed over the track, and had gone the distance of only 15 or 20 feet over it when a freight train of appellant, from the east, passed the crossing at a fast rate of speed, and went on without stopping. Payne's horse was seen running back up the Streeter hill with nothing but the shafts of the buggy attached. The buggy was dashed into pieces, the fragments lying south of track. Payne and Jones were lying south of track on the west cattle guard. The latter was killed outright. Payne was breathing, but had one leg smashed, bone broken and flesh mangled. He died soon after. Letton was badly injured, but survived. From the description given of the accident by Long, who was upon a load of hay on the Jamison hill north, and going south towards the crossing, and having full view of the whole scene, the horse Payne was driving must have reached the railroad track as the train came on to the crossing, and then by suddenly whirling around in the narrow space of 12 feet between the cattle guards, so violently cramped the buggy as to tip and throw it against the corner of some of the passing cars. Long saw the boys, over the engine or between the cars, throw up their hands, and immediately saw the horse running back up the Streeter hill. This witness could see the train from his position, but could hear no bell or whistle or other sound than the mere rumbling of cars; is quite positive that the boys were not driving fast, and from their position, with relation to Donohue, it is very...