The Chicago v. Vanpatten

• Decision Date: 30 September 1872
• Citation: 64 Ill. 510,1872 WL 8359
• Parties: THE CHICAGO, BURLINGTON AND QUINCY RAILROAD CO.v.RUBY VANPATTEN, Admx. etc.
• Court: Illinois Supreme Court

64 Ill. 510

1872 WL 8359 (Ill.)

THE CHICAGO, BURLINGTON AND QUINCY RAILROAD CO.

v.RUBY VANPATTEN, Admx. etc.

Supreme Court of Illinois.

September Term, 1872.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Peoria county; the Hon. SABIN D. PUTERBAUGH, Judge, presiding.

Messrs. MCCULLOCH & STEVENS, for the appellant.

Messrs. WEED & JACK, for the appellee. Mr. JUSTICE SCOTT delivered the opinion of the Court:

This was an action, brought by the appellee as administratrix, against the railway company, under the statute, to recover damages for causing the death of Matthew B. VanPatten.

It is charged that on the fourth day of January, 1871, as the deceased was about to cross the track of appellant's railroad, on a public crossing within the village of Farmington, being in the exercise of due care and caution, he was run over and killed by a train of cars operated and managed by the servants of the appellant.

The acts of negligence which are relied on to charge the company, consisted, first, in the omission to ring the bell or sound the whistle for the requisite distance before reaching the crossing at which the accident occurred; second, in running the train at a highly dangerous and improper rate of speed; third, in keeping no look-out from the engine; and fourth, in general mismanagement and gross want of care in running the train. Upon all these points in the case, there is a direct and sharp conflict in the evidence.

The theory of the appellee is that there was no want of ordinary care on the part of the deceased; that as he approached the crossing, he could not see the train; that the servants of the appellant omitted to give the usual signals, that would have notified him of approaching danger; and that if they had been running the train at a proper rate of speed, as it was their duty to do within the corporate limits of the village, and if they had been on the look-out, they could have discovered the deceased in time to have stopped the train, and so avoided the fatal collision.

On the part of the appellant, it is insisted that the usual signals were given at the proper distance before reaching the crossing at which the deceased was about to pass, but because it was a severe, cold day, he was so wrapped in his winter clothing that he could not hear the signals, if given, and that it was gross carelessness in him to approach the crossing without looking in either direction for the trains, and if he had looked he could have readily seen the advancing train in ample time to have avoided the accident; that the train was running at a slow rate, at least not an unusual rate, of speed; that the engineer was upon the look-out, but as the deceased came upon the track suddenly, having been traveling by the side of the track in the same direction with the advancing train, he was not discovered until it was too late to have avoided the collision, and hence no culpable negligence can be attributed to the company.

It can not be gainsaid that there is evidence in the record that tends to support the opposite theories advanced by the respective parties.

It is a familiar rule in this court that where there is a contrariety of evidence, and where the case has been fairly presented to the jury, on proper instructions, the verdict will not be disturbed unless it is manifestly against the weight of the evidence, or where it appears clearly to have been the result of passion and prejudice; but in that class of cases sounding purely in damages, where the evidence is conflicting, and presents a difficult issue even to persons accustomed to investigate legal matters, the jury ought to be most accurately instructed. We know, from common observation, how apt they are, in cases where the recitals of the facts tend to touch their feelings, to seek for a reason that would justify them in finding a verdict in accordance with their sympathies. An improper instruction may often afford the desired pretext, and in all such cases no instruction which is calculated to mislead the jury into giving a verdict not warranted by law should be allowed to go to them.

We regard this case as one where the jury ought to have been accurately instructed. There is so much conflict in the evidence, that it is a matter of very grave doubt, and the jury should have been assisted in their investigations, by clear, accurate and concise instructions, to enable them to arrive at a just conclusion. In the light of the evidence in the record, and tested by the principles here announced, we think the error is well assigned that the court erred in giving some of the instructions on behalf of the appellee, and in modifying some of those asked by appellant.

By the second instruction given on the part of the appellee, the jury were told, in substance, that if they believed from the evidence that at the time of the disaster no bell was rung or whistle sounded, they were at liberty to infer negligence on the part of the appellant, and should find for the appellee, unless they should believe from the evidence that the deceased was guilty of such negligence as contributed directly to produce or cause the injury.

This instruction does not state the law correctly. While it is true that it is negligence in the servants of the company to omit to ring the bell or sound a whistle when approaching a public crossing, yet the company is not necessarily liable for every accident that may occur where they omit this duty. It is only where the injury happens by reason of such neglect that the company may be held...