The Ill. Cent. R.R. Co. v. Hetherington

• Decision Date: 30 September 1876
• Citation: The Ill. Cent. R.R. Co. v. Hetherington, 83 Ill. 510, 1876 WL 10388 (Ill. 1876)
• Parties: THE ILLINOIS CENTRAL RAILROAD COMPANYv.BENJAMIN M. HETHERINGTON.
• Court: Illinois Supreme Court

83 Ill. 510

1876 WL 10388 (Ill.)

THE ILLINOIS CENTRAL RAILROAD COMPANY

v.BENJAMIN M. HETHERINGTON.

Supreme Court of Illinois.

September Term, 1876.

OPINION TEXT STARTS HERE

APPEAL from the Superior Court of Cook county; the Hon. JOSIAH MCROBERTS, Judge, presiding.

This was an action on the case, by the appellee, as administrator of the estate of Julia Lawlor, deceased, against the Michigan Central Railroad Company and the appellant, jointly, to recover damages for alleged negligence of defendants, causing the death of plaintiff's intestate.

Before trial the suit was dismissed as to the first named company, and thereupon a trial was had, resulting in a verdict and judgment for $2600 for the plaintiff.

Mr. JOHN N. JEWETT, and Mr. CHAS. T. ADAMS, for the appellant.

Messrs. LAWRENCE, CAMPBELL & LAWRENCE, for the appellee.

Mr. JUSTICE CRAIG delivered the opinion of the Court:

A number of questions have been raised and elaborately discussed in regard to the ruling of the court, in the giving, refusing and modification of certain instructions, but after a careful examination of all the instructions, we are inclined to the opinion that no error affecting the substantial merits of the case occurred in that regard, except in the giving of appellee's instruction No. 5, which was as follows:

“If the jury believe, from the evidence, that Julia Lawlor was killed on the track of the Illinois Central Railroad, within the city of Chicago, and that said train was running at the rate of fifteen miles per hour, and that the city ordinance prohibited trains from running within said city faster than six miles per hour, then the law is, that it was negligence on the part of said railroad company to allow said trains to run at the rate of fifteen miles per hour; and the jury are instructed further, that if they believe said Julia Lawlor was a trespasser upon the track of the Illinois Central Railroad, they are to consider whether her negligence in being upon said track was slight in comparison with that of the defendant, and if they believe, from the evidence, that it was, then they are authorized to find for the plaintiff.”

This instruction, although artfully drawn, was calculated to mislead the jury. It, in effect, excluded from their consideration any negligence of the deceased, except the bare fact that she might have been a trespasser upon the track, when the evidence tended to show the track where she was walking was an exceedingly dangerous place, on account of the number of trains that were constantly passing and repassing, and also tended to establish the fact that the deceased walked with her back to the direction from which the train came that caused her death, without using the usual precaution to look back to avoid danger from an approaching train. If the conduct of the deceased on the track amounted to gross negligence on her part, she could not recover, unless the railroad company was guilty of wilful or criminal negligence; and yet the jury were told, by the instruction, that they were to consider whether the negligence of the deceased, in being upon the track as a trespasser, was slight in comparison with that of the defendant, and if they found it was, she could recover.

If it was the province of the jury to settle the rights of the parties, by instituting a comparison of the negligence of the deceased and the railroad company, that duty could not be properly discharged without a consideration, not only of the fact that the deceased might have been a trespasser on the right of way of the defendant, but also her each and every act and omission which materially contributed to the injury. The instruction, however, did not place the question in that attitude before the jury, and we think it was calculated to mislead them upon a vital point in the case, and upon this ground, if for no other, we would be compelled to reverse the judgment.

But we are not satisfied, from the evidence, that the plaintiff was entitled to recover. It is true, the railroad company was negligent in running its trains within the limits of the city at a greater rate of speed than six miles per hour, in defiance of the ordinance of the city, but this accident did not occur at a railroad crossing, or at a place where the deceased, at the time, had a legal right to be.

The deceased, when injured, was walking, in company with another young lady, upon the right of way of the railroad company, for pleasure. She was walking down the track when overtaken by a train going into the city, struck in the back, and killed. At the place where the accident occurred, one of her own witnesses says the headlight of the train could have been seen, by one looking, for nearly a mile. There is a conflict in the evidence as to the ringing of the bell, but those in charge of the engine testify positively that it was ringing before and at the time of the accident. But, be that as it may, it is apparent that the deceased was familiar with the danger likely to overtake any person who might travel up and down the track, as she lived near by, and, doubtless, knew that trains were constantly passing and repassing. It is also true, so far as we are able to learn from the evidence, that no precaution was used to guard against the dangerous position in which the deceased had placed herself. Besides, the deceased had no right whatever to be walking upon the track of the railroad company. She occupied the position of a trespasser. The fact that persons residing in the locality where the accident occurred had been in the habit of traveling upon the right of way of the defendant, and no measures had been taken to prevent it, did not change the relative rights or obligations of the deceased or the railroad company. In the case of Illinois...