The Chicago v. Scates

• Decision Date: 30 September 1878
• Citation: 1878 WL 10212,90 Ill. 586
• Parties: THE CHICAGO AND NORTHWESTERN RAILWAY COMPANYv.WALTER B. SCATES.
• Court: Illinois Supreme Court

90 Ill. 586

1878 WL 10212 (Ill.)

THE CHICAGO AND NORTHWESTERN RAILWAY COMPANY

v.WALTER B. SCATES.

Supreme Court of Illinois.

September Term, 1878.

OPINION TEXT STARTS HERE

APPEAL from the Superior Court of Cook county; the Hon. JOHN A. JAMESON, Judge, presiding.

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

The proof does not support the averments of the declaration. The charge must be proved as made in the declaration. Quincy Coal Company v. Hood, 77 Ill. 68; Gridley v. City of Bloomington, 68 Id. 47; Chicago, Burlington and Quincy Railroad Company v. Lee, Id. 576; Guest v. Reynolds, Id. 478.

The appellant was guilty of no wrong or negligence. The appellee was guilty of gross negligence in attempting to follow up and get on board a train in motion. Knight v. Ponchartrain Railroad Company, 23 La. An. R. 462; Phillips v. Rens. and Saratoga Railroad Company, 49 N. Y. 177; Harpers v. Erie Railroad Company, 32 N. J. L. R. 90; Chicago, Rock Island and Pacific Railroad Company v. Bell, 70 Ill. 102; Illinois Central Railroad Company v. Hill, 72 Id. 222; Lovenguth v. Bloomington, 71 Id. 240; Correll v. B., C. R. and M. Railroad Company, 38 Iowa, 121; Liddy v. St. Louis Mo. Company, 40 Mo. 506; Jetter v. New York and Harlem Company, 2 Keyes, 154; Ohio and Mississippi Railroad Company v. Stratton, 78 Ill. 92.

The appellee was doing an unlawful act,--he was violating a city ordinance. His injury resulted directly from such unlawful act. In such case he can not recover. Harris v. Hatfield, 71 Ill. 310; Worcester v. Bridge Company, 7 Gray, 459; Bosworth v. Swansen, 10 Metcalf, 363; Heland v. Lowell, 3 Allen, 408; Stanton v. Railroad Company, 14 Id. 486; Sutton v. Town of Wauwatosa, 29 Wis. 23; Illinois Central Railroad Company v. Hetherington, 83 Ill. 510.

Appellee was guilty of gross negligence in not looking out for obstacles as he was following up the car. Chicago and Rock Island Railroad Company v. Stell, 19 Ill. 499; Galena and Chicago Union Railroad Company v. Dill, 22 Id. 265; Chicago and Alton Railroad Company v. Gretzner, 46 Id. 82; Toledo, Wabash and Western Railroad Company v. Riley, 47 Id. 515; Railroad Company v. Manley, 58 Id. 300; Railroad Company v. Jacobs, 63 Id. 179; Chicago, Burlington and Quincy Railroad Company v. Lee, 68 Id. 576; Railroad Company v. Jones, 76 Id. 312; Railroad Company v. Miller, 76 Id. 278; Railroad Company v. Bell, 70 Id. 102; Railroad Company v. Hill, 72 Id. 222; Pennsylvania Railroad Company v. Beall, 73 Penn. St. R. 504; McGraw v. New York Central Railroad, 59 N. Y. 468; Galena and Chicago Union Railroad Company v. Fay, 16 Ill. 567.

Mr. W. B. SCATES, pro se.

Mr. CHIEF JUSTICE CRAIG delivered the opinion of the Court:

This was an action brought by Walter B. Scates, in the Superior Court of Cook county, against the Chicago and Northwestern Railway Company, to recover for personal injuries received while attempting to get upon a train of cars at the depot of the company in the city of Chicago.

In the first count of the declaration it is averred that it was the duty of the defendant to have a safe and convenient platform to the train of cars free from dangerous and unsafe obstructions, so that the plaintiff could obtain ingress to said cars in a safe and comfortable manner; that defendant in that regard did not perform its duty, but that defendant kept the platform to the cars in a negligent and unsafe manner, and kept a wooden post upon said platform in such close proximity to the railroad track that at the place where the platform abuts thereupon, the plaintiff, in the exercise of due care in the act of getting on the car to take passage to Evanston, was, by said defendant, carelessly and negligently crushed between the train and the post negligently and carelessly placed upon the platform, whereby, etc.

In the second count it is averred, that it was the duty of the defendant to have at the station at Chicago a safe platform, so that plaintiff could obtain safe ingress to the car; that defendant did not regard its duty in that behalf, but erected a wooden post upon the platform in such close proximity to the track of the railroad, that while the plaintiff, with all care and diligence, was then and there getting on the cars, the defendant moved its cars athwart and by the said wooden post and crushed and jambed the plaintiff between the car and the post, by means whereof, etc.

These are the only counts in the declaration, and on the evidence introduced under these averments the plaintiff recovered a verdict and judgment for the injuries sustained.

We do not deem it necessary to consume time in the consideration of the evidence, further than it may be necessary to determine whether the law applicable to the facts of the case was properly given to the jury. The defendant requested the court to give the following instructions, which were refused:

“2. That if, at the time the accident to the plaintiff is alleged to have occurred, the defendant's train started at the regular time of starting, and if the train had been in the proper position to receive its passengers a sufficient time to allow all passengers who were ready at the proper time to take seats in in the car, and if the plaintiff, after the car started and while it was in motion, attempted to get on board, and the injury to him was received by reason of the car being in motion, he can not recover for such injury.

3. It was not the duty of the defendant to provide means by which the plaintiff could get on board the train of cars while the same was in motion. If the defendant had constructed and maintained a platform at a convenient and suitable place, by which passengers could safely and securely enter the cars when the train was placed in position for the reception of passengers when the cars were not in motion, it had fulfilled its duty to the plaintiff so far as the platform is concerned, and the plaintiff can not recover under the averment of his declaration in this case.”

No other instructions involving the same principle were given.

The depot where the accident occurred is a building containing two waiting rooms, one for gentlemen and the other for ladies. The building also contains a baggage room. The roof of the building extended over a platform, supported by a row of posts. The posts opposite the passengers' waiting rooms were several feet from the cars on the track, but the post furthest west, which was opposite the baggage room, was only one foot and four inches from the car as it stood upon the track.

It appears, from the evidence, that the train had been standing on the track for some time before it started, ready to receive passengers. The plaintiff did not, however, go upon the train, as he had ample opportunity to do while it was standing on the track opposite the waiting room, but, for some purpose, he went into the baggage room, and while there the train started. When appellee discovered that the train was moving off, he started from the baggage room door, for the purpose of getting upon the train. A large man, with a valise in his hand, also started for the train, and reached the cars first. When this person reached the car door, the plaintiff was on the first step of the car. The door, however, turned out to be locked, and the man, not being able to enter the car, immediately turned and proceeded down the steps in great haste. Of course he encountered the plaintiff, who was either crowded off or pushed off on the platform. After plaintiff was thus upon the platform, he held on to the iron railing of the car, and followed the moving train until he came against a post which stood near the track in front of the baggage room, and was injured between the post and the moving car.

The fact that the train started on regular time, and ample opportunity had been given passengers to take passage before it started, as declared in the second refused instruction, is not disputed or denied. Had the plaintiff the right to attempt to get on the train while in motion; and if an injury occur in consequence of such an act, can a person recover damages for such an injury?

In Illinois Central R. R. Co. v. Slatton, 54 Ill. 133, where it appeared the train had stopped at a station and remained a sufficient time to allow passengers to leave in safety, but the deceased, not availing of that opportunity, waited until the train was in motion and then attempted to leave the train, and while so doing was thrown under the cars and killed, it was held, there appearing to have been no mismanagement of the train by the company, it was not...