The Lake Erie v. Zoffinger

• Decision Date: 30 November 1881
• Citation: 10 Ill.App. 252,10 Bradw. 252
• Parties: THE LAKE ERIE AND WESTERN RAILWAY COMPANYv.JOHN ZOFFINGER.
• Court: United States Appellate Court of Illinois

10 Ill.App. 252

10 Bradw. 252

THE LAKE ERIE AND WESTERN RAILWAY COMPANY

v.JOHN ZOFFINGER.

Appellate Court of Illinois, Third District.

November Term, 1881.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of McLean county; the Hon. OWEN T. REEVES, Judge, presiding. Opinion filed January 17, 1882.

Mr. B. D. LUCAS and Messrs. WELDON & MCNULTA for appellant; that if appellee was injured while on the right-of-way of appellant, he can not recover unless the injury was willfully or wantonly inflicted, cited Ill. Cent. R. R. Co. v. Hetherington, 83 Ill. 510; Ill. Cent. R. R. Co. v. Godfrey, 71 Ill. 500; J. M. & I. R. R. Co. v. Goldsmith, 47 Ind. 43; Gill v. Pa. R. R. Co., 59 Pa. 129; Railroad Co. v. Norton, 12 Harris, 465; Railroad Co. v. Mulherin, 81 Pa. 366.

Appellee must show that his negligence was slight, and that of defendant gross in comparison: C. B. & Q. R. R. Co. v. Avery, 8 Bradwell, 13; Ill. Cent. R. R. Co. v. Hetherington, 83 Ill. 510; C. B. & Q. R. R. Co. v. Harwood, 90 Ill. 425; C. & A. R. R. Co. v. Becker, 76 Ill. 25.

When ordinary care is not exercised, there is gross negligence: C. B. & Q. R. R. Co. v. Van Patten, 64 Ill. 510; C. & N. W. R. R. Co. v. Scates, 90 Ill. 586; Chicago v. Walton, 6 Bradwell, 344; City of Macomb v. Smithers, 6 Bradwell, 474; President, etc., v. Carter, 2 Bradwell, 35; Chicago City R'y Co. v. Lewis, 5 Bradwell, 245.

Special damages, if claimed, must be alleged in the declaration: Chicago v. O'Brennan, 65 Ill. 160; Dickerson v. Boyle, 17 Pick. 79; Sherman v. Dutch, 16 Ill. 283; Chitty's Pl. 398.

Evidence of the plaintiff's pecuniary condition was not admissible under the issues in this case: Chicago v. O'Brennan, 65 Ill. 160; P. Ft. W. & C. R. R. Co. v. Powers, 74 Ill. 341.

The burden was on appellee, not only to show negligence of appellant, but also due care on his part: Kepperly v. Ramsden, 83 Ill. 354; I. & St. L. R. R. Co. v. Evans, 88 Ill. 63; Chicago City R'y Co. v. Lewis, 5 Bradwell, 245.

Mr. NEWTON B. REED and Messrs. FIFER & PHILLIPS, for appellee; that running a train backward without having any one to watch the track, or without any light, is gross negligence on the part of the railroad company, cited Ill. Cent. R. R. Co. v. Ebert, 74 Ill. 399; C. & A. R. R. Co. v. Garvey, 58 Ill. 83. C. B. & Q. R. R. Co. v. Triplett, 38 Ill. 482; Ill. Cent. R. R. Co. v. Baches, 55 Ill. 379; C. R. I. & P. R. R. Co. v. Dignan, 56 Ill. 487; I. & St. L. R. R. Co. v. Galbraith 63 Ill. 436.

When, considered as a whole, the jury have been fairly and sufficiently instructed, the court will not reverse for slight or technical error: T. P. & W. R'y Co. v. Ingraham, 58 Ill. 120; Hardy v. Keeler, 56 Ill. 152; Chicago v. Garrison, 52 Ill. 517; Cusick v. Campbell, 68 Ill. 508; Kightlinger v. Egan, 75 Ill. 141; Clark v. Day, 93 Ill. 480.

Nor for a slight error, when the court can see that justice has been done: Hardy v. Keeler, 56 Ill. 152; C. B. & Q. R. R. Co. v. Dickson, 63 Ill. 151; Graves v. Shoefelt, 60 Ill. 462; Daily v. Daily, 64 Ill. 329.

Where a crossing is dangerous, the ringing of the bell is not a sufficient warning to excuse the company; it is bound to use every possible precaution to avoid injury: I. & St. L. R. R. Co. v. Stables, 62 Ill. 313; C. B. & Q. R. R. Co. v. Triplett, 38 Ill. 482; Wabash R. R. Co. v. Henks, 91 Ill. 406; St. L. V. & T. H. R. R. Co. v. Dunn, 78 Ill. 197; T. W. & W. R'y Co. v. O'Connor, 77 Ill. 391.

It is negligence to permit weeds and brush to grow upon the right-of-way, so as to obstruct the view of the track: C. B. & Q. R. R. Co. v. Lee, 87 Ill. 454; I. & St. L. R. R. Co. v. Smith, 78 Ill. 112.

Where two juries have passed upon the facts of a case with like result each time, the verdict will not be disturbed unless clearly against the weight of evidence: Ottawa v. Sweely, 65 Ill. 434, Calvert v. Carpenter, 96 Ill. 63; Nevius v. Gurley, 97 Ill. 365; Wood v. Hildreth, 73 Ill. 525; C. B. & Q. R. R. Co. v. Lee, 87 Ill. 454.

MCCULLOCH, J.

On the fifth day of July, 1880, appellee was in the city of Bloomington, having arrived there on the previous night from his home in Minier. About nine o'clock at night he started for the union depot at the crossing of the Chicago & Alton and the Indiana, Bloomington & Western Railroads, but, losing his way, he got on the track of the latter road and was run over by one of appellant's trains. The accident resulted in the loss of his right arm and his right leg, for which damage he brought suit and recovered the judgment from which this appeal is taken.

At the intersection of Washington and Howard streets, the track in question is distant from Washington street less than one block. From Howard street to the union depot, the distance is nearly one thousand feet, with Morris street intervening at a distance of four hundred and sixty-five feet from Howard. Between these two streets the railroad does not follow a public street of the city, but is laid upon the right-of-way of the I. B. & W. Company. Some of the counts of the declaration lay the scene of the accident at the crossing of Howard street and the railroad, but one count lays it at or near said crossing. Immediately after its occurrence, appellee was found in a mangled condition two hundred feet west of the crossing, with no marks of blood, or other evidence of his having been dragged along the ground more than fifteen feet, except that his clothing was torn or cut into ribbons and almost entirely stripped from his body.

Appellee's account is, that when he had gotten as far down Washington street as the intersection of Howard street, he looked south and saw some lights in a large building, facing the latter street, which he took for the depot, and went in that direction until he came to a fence which must have been on the south side of Front street, which is the next street south of Washington. In going there he necessarily crossed the track of the I. B. & W. railroad, but he says he did not notice it to be a railroad, but supposed it to be a bridge. Finding he was mistaken about the depot, he started to go back upon the same street on which he came, which would be Howard street. Having gone a short distance, he heard a bell ahead of him, and a noise behind him like a team running away with a wagon, when almost immediately he was struck by the train, and knew no more until he came to his senses at the Chicago House after his limbs had been amputated.

The train which ran over appellant was running westward. It consisted of seven cars loaded with ice, which were being transferred to the Chicago and Alton Railroad; the engine being on the east end of the train headed eastward, but pushing the train westward. The complaint is that it was running at an improper rate of speed through the city; that no bell was rung or whistle sounded on its approach; that no proper lookout was kept, or signals given, or lights displayed by those in charge.

The evidence is somewhat conflicting, but, upon some of the vital questions, we think it strongly tends to support appellant's theory of the case. Appellee appears to be a German by birth, and has but a limited use of the English language. In the few short sentences of his testimony wherein he attempts to give an account of his exact locality at the time of the happening of the accident, he appears very obscure. He seems to have become confused in the darkness as to the location of the union depot, and having discovered his mistake, attempted to return on the same street to find it, and from the character of the ground at that place it is evident he must have gone back on the same street at least as far as the railroad track. Then he heard bells right in front of him in the direction of the union depot, and a noise in the rear, which, doubtless, was the noise of the approaching train. These facts would indicate that he was then facing westward instead of northward. Had he been going north, the bell, if at the depot, would have been to his left; if it was on the approaching train, it would have been to his right, and the noise of the train would have been in the same direction. But he says, when he heard the noise, he looked over his left shoulder and was immediately struck. These statements are in harmony with the theory that he had left Howard street, and was walking westward on the track, and had gone in that direction near to the place where he was found, before he was struck by the approaching train.

There is some conflict in the evidence as to whether or not a street lamp was burning at the crossing of Howard street. The evidence inclines us to the opinion that it was burning. Wilson, who was on the train, says it was burning, and as the train approached, the light of the lamp appeared like the headlight of a locomotive coming around a curve. This witness testifies that, at the Howard street crossing, he sat on the top of the rear car, with his legs hanging over the end of it, with a lantern in his hand suspended a little below the top of the car.

The evidence is clear that the train was running at a very moderate rate of speed and that the bell on the engine was ringing. Appellee's principal charge of negligence is the want of a sufficient signal light, so displayed on the train as to apprise any one upon the street crossing of its approach. Several witnesses testify that no light was upon the train, but none of these observed it until it had passed Howard street by at least two hundred feet. Wilson, on the other hand, testifies that he maintained his position, with the lantern in his hand, until he had passed Howard street a few feet, when he went to the other end of the car to set the brakes for the Chicago and Alton crossing, leaving the lantern on the top of the car at its rear end. There is, therefore, but a slight conflict in the evidence upon this point.

The proof of negligence on the part of appellant is not at all satisfactory, while the evidence tends strongly to show that the accident did not happen at or on the...