The Chicago v. Ryan

• Decision Date: 30 September 1873
• Citation: 1873 WL 8577,70 Ill. 211
• Parties: THE CHICAGO AND NORTHWESTERN RAILWAY CO.v.ANDREW RYAN.
• Court: Illinois Supreme Court

70 Ill. 211

1873 WL 8577 (Ill.)

THE CHICAGO AND NORTHWESTERN RAILWAY CO.

v.ANDREW RYAN.

Supreme Court of Illinois.

September Term, 1873.

OPINION TEXT STARTS HERE

APPEAL from the Superior Court of Cook county; the Hon. WILLIAM A. PORTER, Judge, presiding.

The opinion of the court contains a statement of all the facts necessary to an understanding of the case. The seventh instruction given for the plaintiff, after submitting the facts, hypothetically, upon which the defendant was liable, also stated, “and that, therefore, and without fault on plaintiff's part, the accident happened, then the jury should find a verdict in favor of the plaintiff.” It was urged, in this court, that the words “ ordinary care ” should have been used in place of the word “ fault.'D'

Mr. B. C. COOK, for the appellant.

Mr. MELVILLE W. FULLER, for the appellee.

Mr. JUSTICE CRAIG delivered the opinion of the Court:

This was an action on the case, brought by appellee against appellant, in the Superior Court of Cook county, to recover for personal injuries by being run over by a switch engine, near the depot, in the city of Chicago. The cause was tried before a jury, and a verdict returned in appellee's favor, for $3500. A motion was made by appellant for a new trial, which was overruled, and judgment rendered upon the verdict.

A reversal of the judgment is insisted upon by appellant, mainly on the ground that the verdict is not sustained by the evidence.

It appears, by the record, that the accident occurred on the 22d day of February, 1868. At the time, appellee was employed by the company as a day laborer, at its carpenter shops. Appellee resided north of the carpenter shops, and, in going from the shops to his residence, he had to pass over the tracks of appellant's road. This was his usual route, and in fact his only one.

It is claimed by appellant, first, that appellee was guilty of gross negligence at the time the accident occurred; second, that the servants of the company in charge of the engine used ordinary care, and were free from negligence. If the evidence sustained these positions, no recovery could be had.

It is the undoubted duty of all persons who undertake to cross a railroad track, to act with caution and prudence, because it is apparent that such crossings are always more or less dangerous. This being the case, those who desire to cross must use every reasonable precaution to avoid an accident, and if they fail to do this, no recovery can be had for an injury which might have been averted by the exercise of ordinary care.

On the evening the accident happened, appellee, on the blowing of the six o'clock whistle, which gave notice to the employees to quit work, started from the shops, to go to his residence. The track was only a few steps from the shop door. He testifies, and upon this he is uncontradicted, that he looked up and down the track, and saw that it was clear, no train or engine in sight; he then turned north, and had only proceeded a few steps, when the engine came around the curve, behind him, from the direction of the round house, and he was struck. When Ryan looked up and down the track, and saw that no train or engine was in sight, he might reasonably conclude that it was safe to proceed, and if an engine was upon the track, and not in sight, he would be warned of its approach by the sound of the bell or whistle, and having used this precaution, it can not, with propriety, be said he was guilty of negligence.

In regard to the conduct of the servants of appellant in charge of the engine, the evidence, on some points, is conflicting. Appellee testifies that the bell was not rung or the whistle sounded; that the engine was running at a high rate of...