The Chicago v. Sykes

Citation1 Ill.App. 520,1 Bradw. 520
CourtUnited States Appellate Court of Illinois
Decision Date31 December 1877
PartiesTHE CHICAGO, BURLINGTON & QUINCY R. R. CO.v.CHLOE M. SYKES, Adm'x.

OPINION TEXT STARTS HERE

Appeal from the Circuit Court of Warren county; the Hon. Arthur A. Smith, Judge, presiding.

Mr. William C. Norcross, for appellant; that the deceased was guilty of gross negligence in crawling under the train, in any view of the case cited, C. B. & Q. R. R. Co. v. Lee, adm'x, 68 Ill. 576; C. B. & Q. R. R. Co. v. Van Patten, 64 Ill. 510; C. B. & Q. R. R Co. v. Dewey, 26 Ill. 255; C. B. & Q. R. R. Co. v. Dunn, 52 Ill. 260; Ill. Cent. R. R. Co. v. Baches, 55 Ill. 379.

That the court erred in refusing defendant's 13th and 15th instructions: C. B. & Q. R. R. Co. v. Lee, 68 Ill. 576; Keokuk Packet Co. v. Henry, 50 Ill. 264; T. P. & W. R. R. Co. v. Riley, 47 Ill. 514; C. B. & Q. R. R. Co. v. Dewey, 26 Ill. 255; Ohio & Miss. Ry. Co. v. Stratton, 78 Ill. 88; C. B. & Q. R. R. Co. v. Van Patten, 64 Ill. 510; C. B. & Q. R. R. Co. v. Dunn, 52 Ill. 260; C. & A. R. R. Co. v. Gretzner, 46 Ill. 82.

That the verdict should have been set aside as being clearly against the weight of evidence: Adams Ex. Co. v. Jones, 53 Ill. 463; Clement v. Bushway, 25 Ill. 200; Boren v. Bartleson, 39 Ill. 43; Gibson v. Webster, 44 Ill. 483; Scott v. Plumb, 2 Gilm. 595; Lowrie v. Orr, 1 Gilm. 70; Keaggy v. Hite, 12 Ill. 99; Baker v. Pritchett, 16 Ill. 66; Miller v. Hammers, 51 Ill. 175; Chase v. Debolt, 2 Gilm. 371; Higgins v. Lee, 16 Ill 495; Gordon v. Crooks, 11 Ill. 142; Kewanee v. Depew, 80 Ill. 119; Ill. Cent. R. R. Co. v. Chambers, 71 Ill. 519; C. R. I. & P. R. R. Co. v. Bell, 70 Ill. 102.

That an invitation to the deceased by the conductor of the train to crawl under the car was not within the duties of such conductor, and defendant cannot be held liable therefor: Story on Agency, 156; 1 Greenl'f's Ev. 129; 1 Wharton on Ev. 252; Davison v. Porter, 57 Ill. 300; Snyder v. Hannibal & St. Jo. R. R. Co. 60 Mo. 413; St. L. & Memphis Packet Co. v. Parker, 59 Ill. 23.

That an instruction to that effect was erroneous, as being calculated to mislead the jury: Paulin v. Howser, 63 Ill. 312; Brown v. Graham, 24 Ill. 628.

That evidence of statements made by the conductor not within the scope of his agency, and made after the transaction, was improperly admitted: Story on Agency, 156; 1 Greenl'fs Ev. 129; 1 Wharton on Ev. 252; Law v. Bryant, 9 Gray 245; Robinson v. R. R. Co. 7 Gray, 92; Anderson v. Rome, etc. R. R. Co. 54 N. Y. 834; Griffin v. Montgomery R. R. Co. 26 Ga. 111; Luby v. Hud. R. R. R. Co. 17 N. Y. 131; Bank v. Stewart, 37 Me. 519; Great Western R. R. Co. v. Willis, 18 C. B. 748; Allen v. Denston, 8 C. & P. 706; Stiles v. Western R. R. 8 Met. 46; Cooley v. Norton, 4 Cush. 93; Treadway v. Sioux City, etc. R. R. 8 Am. Rep. 415; Ang. and Ames on Cor. 334; Paley on Agency, 207.

That the deceased was violating a statute law of this State in crawling under the train: Rev. Stat. 1874, 810.

That the deceased was clearly guilty of gross negligence as is proven by all the testimony in the case: Kewanee v. Depew, 80 Ill. 119; Ill. Cent. R. R. Co. v. Chambers, 71 Ill. 519; Ill. Cent. R. R. Co. v. Hall, 72 Ill. 222; Snyder v. Hannibal & St. Jo. R. R. Co. 60 Mo. 413; R. R. I. & St. L. R. R. Co. v. Byam, 80 Ill. 528; Sterling Bridge Co. v. Pearl, 80 Ill. 251; I. C. R. R. Co. v. Goddard, 72 Ill. 567; St. Louis & S. E. R. R. Co. v. Britz, 72 Ill. 256; T. W. & W. R. R. Co. v. Barlow, 71 Ill. 640; I. C. R. R. Co. v. Godfrey, 71 Ill. 500.

A higher degree of care is required of an adult than of a child: C. & A. R. R. Co. v. Murray, 71 Ill. 601; C. B. & Q. R. R. Co. v. Dewey, 26 Ill. 255; R. R. Co. v. Gladman, 15 Wall. 408.

Messrs. Stewart & Phelps, for appellee; insisted that the question whether the deceased was guilty of negligence was a proper one for the jury, and cited I. & St. L. R. R. Co. v. Stables, 62 Ill. 315; T. W & W. R. R. Co. v. Spencer, 66 Ill. 528; T. W. & W. R. Co. v. Triplett, 38 Ill. 482; C. & N. W. R. R. Co. v. Sweeney, 52 Ill. 325; I. C. R. R. Co. v. Hammer, 72 Ill. 347; P. D. R. R. Co. v. Mullins, 66 Ill. 526.

That where the evidence is conflicting, the verdict will not be set aside, unless grossly against the evidence: Morgan v. Ryerson, 20 Ill. 343; Millikin v. Taylor, 53 Ill. 509; Chicago v. Garrison, 52 Ill. 516; Voltz v. Stephani, 46 Ill. 54; Bagley v. McClure, 46 Ill. 381; Baker v. Robinson, 49 Ill. 299; Chicago v. Smith, 48 Ill. 107; Crain v. Wright, 46 Ill. 107; McCarthey v. Mooney, 49 Ill. 247; Keith v. Fink, 47 Ill. 272; Hope Ins. Co. v. Lonergan, 48 Ill. 49.

That deceased was not guilty of gross negligence in passing under the train upon invitation of the conductor: R. R. I. & St. L. R. R. Co. v. Coultas, 67 Ill. 398; I. C. R. R. Co. v. Slatton, 54 Ill. 133; I. C. R. R. Co. v. Able, 59 Ill. 131.

That it was negligence on the part of the railroad company to obstruct the sidewalk: C. B. & Q. R. R. Co. v. Dewey, 26 Ill. 255; Rev. Stat. 1877 (Hurd's Ed.), 771.

If the negligence of the party injured was slight and that of the company gross, a recovery can be had: T. W. & W. R. R. Co. v. O'Conner, adm'r, 77 Ill. 391; C. & N. W. R. R. Co. v. Sweeney, 52 Ill. 325; C. & N. W. R. R. Co. v. Coss, 73 Ill. 394; I. & St. L. R. R. Co. v. Herndon, 81 Ill. 143; G. & C. N. R. R. Co. v. Jacobs, 20 Ill. 478; C. B. & Q. R. R. Co. v. Van Patten, 64 Ill. 510; R. R. I. & St. L. R. R. Co. v. Coultas, 67 Ill. 398; C. & A. R. R. Co. v. Sullivan, 63 Ill. 293; C. & A. R. R. Co. v. Gretzner, 46 Ill. 74; C. & A. R. R. Co. v. Murray, 62 Ill. 326; I. C. R. R. Co. v. Waddlesworth, 43 Ill. 66; St. L. & A. etc. R. R. Co. v. Manly, 58 Ill. 306.

I. C. R. R. Co. v. Maffit, 67 Ill. 431; I. C. R. R. Co. v. Hammer, 72 Ill. 347; R. R. I. & St. L. R. R. Co. v. Hillmer, 72 Ill. 235; C. B. & Q. R. R. Co. v. Triplett, 38 Ill. 482; T. W. & W. R'y Co. v. McGinnis, 71 Ill. 346; I. C. R. R. Co. v. Cragin, adm'r, 71 Ill. 177; Dimick v. C. & N. W. R'y Co. 80 Ill. 341; St. L. V. & T. H. R. R. Co. v. Dunn, 78 Ill. 197; C. & A. R. R. Co. v. Hogarth, 38 Ill. 370.

That it was gross negligence to start the train in the manner it was started without giving a signal by blowing the whistle or ringing the bell: R. R. I. & St. L. R. R. Co. v. Linn, 67 Ill. 109; I. C. R. R. Co. v. Hammer, 72 Ill. 347; T. W. & W. R. R. Co. v. Miller, 76 Ill. 278; C. B. & Q. R. R. Co. v. Stumps, 55 Ill. 367.

Instructions that take from the jury a consideration of the facts in the case, or that are calculated to mislead, should be refused: Frasure v. Zimmerly, 25 Ill. 202; Dart et al. v. Horn, 20 Ill. 212; Duffield v. Delancy, 36 Ill. 258; Winn v. Hammond, 37 Ill. 99; Stout v. McAdams, 2 Scam. 67; Baxter v. The People, 3 Gilm. 368; Hill v. Ward, 2 Gilm. 285; Denman v. Bloomer, 11 Ill. 177; Coughlin v. The People, 18 Ill. 266; Harris et al. v. Miner, 28 Ill. 136; C. B. & Q. R. R. Co. v. George, 19 Ill. 510; Hosley v. Brooks et al. 20 Ill. 116; Calhoun Co. use, etc. v. Buck et al. 27 Ill. 440; Pfund et al. v. Zimmerman, 29 Ill. 269; Trustees, etc. v. McCormick Bros. 41 Ill. 323.

All that appellant was entitled to ask was given by the court, and should not be repeated in other instructions: Hesing v. McCloskey, 37 Ill. 341; McKichan v. McBean, 45 Ill. 228; Underwood v. White, 45 Ill. 437; Freeman v. Tinsley, 50 Ill. 497; Calhoun v. O'Neal, 53 Ill. 354.

Generally as to the liability of the master for the acts of his servant: Wilton v. Middlesex R. R. 107 Mass. 169; Bayley v. Manchester, etc. R'y Co. 8 C. P. 153; Cosgrove v. Ogden, 49 N. Y. 255; Anderson v. Rome, etc. R. R. Co. 54 N. Y. 340; Luby v. H. R. R. Co. 17 N. Y. 133.

That substantial justice has been done, and the verdict will not be disturbed: Leigh v. Hodges, 3 Scam. 15; Dishon v. Shorr, 19 Ill. 59; Pahlman v. King, 49 Ill. 266; Hall v. Groufe, 52 Ill. 421; Watson v. Woolverton, 41 Ill. 241.

LELAND, P. J.

This was an action brought in Warren county by appellee, as administratrix of Francis M. Sykes, deceased, against appellant, to recover damages for the death of the deceased, who was injured in May, 1876, while attempting to pass under one of the cars of a freight train, at Knoxville, in Knox county, in order to take passage upon a passenger train. There was a verdict for plaintiff of $4,250.

The wheel of the freight car passed over the foot of the deceased, and the death resulted from tetanus or lock-jaw some eight days after the injury. The deceased had been station agent for the company for several years, but at the time of his injury he had ceased to be, and his son, Loren Sykes, had succeeded him. At the time deceased attempted to pass under the freight train, the engine was attached, and the steam was up, and the train in a condition to start at any moment when it was desired to cause it to move, and according to the evidence of some witnesses, liable to be moved by the escape of steam into the cylinder, without any agency of the engineer. The two trains were standing lengthwise, east and west, the passenger train north of the station, on the main track, the freight south of it on a side track. The street running north and south, along which it was necessary to go to pass from the depot to his home, was obstructed by the freight train, which stood across it. The deceased was at the depot, and was going to take the passenger train to go fishing. Desiring to go home to get his boots, he passed under the freight train to go home, came back with his boots, and attempted to again pass under the train, because it was so far to go around that he might miss the passenger train. He attempted to crawl under a freight car at or near the sidewalk, with his boots in his hands, and while making such attempt the freight train started and he was injured.

That under ordinary circumstances, and without any encouragement from the servants of the company that it might be safely done, such conduct of the deceased would be gross negligence, sufficient to prevent a recovery would...

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