The Ill. Cent. R.R. Co. v. Benton

• Court: Illinois Supreme Court
• Writing for the Court: WALKER
• Citation: The Ill. Cent. R.R. Co. v. Benton, 69 Ill. 174, 1873 WL 8431 (Ill. 1873)
• Decision Date: 30 September 1873
• Parties: THE ILLINOIS CENTRAL RAILROAD COMPANYv.SAMUEL BENTON.

69 Ill. 174

1873 WL 8431 (Ill.)

THE ILLINOIS CENTRAL RAILROAD COMPANY

v.SAMUEL BENTON.

Supreme Court of Illinois.

September Term, 1873.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of LaSalle county; the Hon. EDWIN S. LELAND, Judge, presiding.

This was an action on the case, brought by Samuel Benton against the appellant, to recover damages sustained from a collision with appellant's train of cars, at a highway crossing. The facts of the case are stated in the opinion.

Messrs. ELDRIDGE & LEWIS, for the appellant.

Mr. R. D. MCDONALD, for the appellee.

Mr. JUSTICE WALKER delivered the opinion of the Court:

It appears that about the first of January, 1871, the servant of appellee was driving a team of horses, attached to a wagon, along a road, near to and which crossed the railroad track of appellant. Appellee had sent his horses to a blacksmith shop to have them shod, after which the driver was directed to return with the wagon and team, by the way of the village of New Rutland, for the transaction of some business. In crossing the railroad, one of appellant's engines, with a train attached, struck the horses, threw them and the wagon into the ditch at one side of the road, killing one of the horses and injuring the wagon. The declaration was in case, and averred negligence in not slackening the speed of the train, and in failing to ring a bell or sound a whistle at the road crossing, as required by the statute. A trial was had, resulting in a verdict and judgment against the company for the sum of $135.75, from which this appeal is prosecuted.

It is urged that the verdict is not sustained by the evidence, and that the court gave improper instructions, by which the jury were misled in their finding. The evidence shows that a bell was not rung or a whistle sounded, at the time of the accident. And it is urged that the evidence fails to show that the highway was laid out or otherwise legally established. The evidence shows that it was traveled by the public, and had been worked and repaired by the authorities having charge of the highways in that road district. This was prima facie evidence of the existence of a public highway, legally established. Chicago and Alton Railroad v. Adler, 56 Ill. 344.

To have overcome this evidence, appellant should have shown that the road had no legal existence. The evidence, uncontradicted, was sufficient to require them to show that appellant was not required to ring a bell or sound a whistle at this crossing.

Whether the failure to ring a bell or sound a whistle, as required by the statute, was the cause of the injury, was a question for determination by the jury. The statute only imposes liability for injuries resulting from that neglect of duty. And where it appears that the non-compliance with the statute did not result in injury, no such cause of action would arise because of the non-compliance with the statute. The injury must be the result of that neglect, either in whole or in part. If the company were guilty of other negligence, and it should be doubtful which produced the injury, or if both combined produced the injury, then the company would, no doubt, be liable, if the injured party was not in default to such an extent as to relieve the company from liability.

Both parties must employ all reasonable means to avoid the infliction of injury on each other, and to avoid receiving it themselves. But when both are in fault, then plaintiff can not recover, unless his negligence is slight and that of defendant is gross. In this case, the servants of the company failed to give the signal on their approach to the highway. This the statute required them to do, and had declared that, failing to do so, they should be liable for all damages resulting from such neglect. But, on the other hand, appellee's driver was acquainted with the locality. He knew that the road was there; that it approached the highway through a...