The Lake Shore v. Berlink

• Decision Date: 31 October 1878
• Citation: 2 Ill.App. 427,2 Bradw. 427
• Parties: THE LAKE SHORE AND MICHIGAN SOUTHERN RAILWAY COMPANYv.ABRAHAM BERLINK, by his next friend, etc.
• Court: United States Appellate Court of Illinois

2 Ill.App. 427

2 Bradw. 427

THE LAKE SHORE AND MICHIGAN SOUTHERN RAILWAY COMPANY

v.ABRAHAM BERLINK, by his next friend, etc.

Appellate Court of Illinois, First District.

October Term, 1878.

OPINION TEXT STARTS HERE

APPEAL from the Superior Court of Cook county; the Hon. JOHN A. JAMESON, Judge, presiding.

Mr. C. D. ROYS, for appellant; that the plaintiff must show that he exercised due care and diligence, cited Ill. Cent. R. R. Co. v. Hetherington, 83 Ill. 510.

Where the plaintiff has been guilty of gross negligence an action will not lie unless the injury was willfully or wantonly inflicted: C. B. & Q. R. R. Co. v. Lee, 68 Ill. 576; L. S. & M. S. Ry. Co. v. Hart, 1 Chicago Law Jour. 298; Ill. Cent. R. R. Co. v. Godfrey, 71 Ill. 500; Ill. Cent. R. R. Co. v. Hall, 72 Ill. 222; C. B. & Q. R. R. Co. v. Damerell, 81 Ill. 450; L. S. & M. S. R. R. Co. v. Miller, 25 Mich. 274; Wharton on Negligence, § 384; Galena, etc. R. R. Co. v. Loomis, 13 Ill. 548.

It is the duty of a person approaching a railroad crossing to look in every direction before attempting to cross, and a failure to do so is gross negligence: C. B. & Q. R. R. Co. v. Van Patten, 64 Ill. 510; C. R. I. & P. R. R. Co. v. Bell, 70 Ill. 102; C. B. & Q. R. R. Co. v. Lee, 68 Ill. 576; Ill. Cent. R. R. Co. v. Hetherington, 83 Ill. 510; C. B. & Q. R. R. Co. v. Damerell, 81 Ill. 450; C. B. & Q. R. R. Co. v. Harwood, 80 Ill. 88; Ill. Cent. R. R. Co. v. Green, 81 Ill. 19; C. & A. R. R. Co. v. Jacobs, 63 Ill. 178; C. & A. R. R. Co. v. Gretzner, 46 Ill. 74; Ill. Cent. R. R. Co. v. Godfrey, 71 Ill. 500; R. R. Co. v. Houston, 5 Otto, 697; T. P. & W. R. R. Co. v. Riley, 47 Ill. 514.

The fact that the engine was running at a prohibited rate of speed does not relieve the plaintiff from the exercise of ordinary care, nor is it alone a sufficient reason for holding that the injury was willful or wanton: C. B. & Q. R. R. Co. v. Lee, 68 Ill. 576; Artz v. C. R. I. & P. R. R. Co. 34 Iowa, 153; R. R. Co. v. Hunter, 33 Ind. 335; R. R. Co. v. Houston, 5 Otto, 697.

Where an infant insists upon his right of action, it is incumbent upon him to show compliance with the conditions upon which such right is based, irrespective of his age: Heinzberger v. Second Ave. R. R. 40 N. Y. 570; Burke v. Broadway & Seventh Ave. R. R. Co. 49 Barb. 529; Lafayette & Indianapolis R. R. v. Hoffman, 28 Ind. 287; C. & A. R. R. Co. v. Becker, 76 Ill. 25.

Instructions must be based on evidence: G. & C. U. R. R. Co. v. Jacobs, 20 Ill. 478.

The negligence of the plaintiff must be slight and that of the defendant gross: Ill. Cent. R. R. Co. v. Goddard, 72 Ill. 567.

A failure to sound bell or whistle will not excuse the plaintiff from exercising due care in crossing the track: C. B. & Q. R. R. Co. v. Payne, 49 Ill. 499; C. B. & Q. R. R. Co. v. Lee, 60 Ill. 501; Ill. Cent. R. R. Co. v. Maffit, 67 Ill. 431.

An instruction to the effect that if the track was unobstructed and nothing to prevent the plaintiff's view, he is guilty of negligence if he failed to look both ways before attempting to cross, should have been given as asked by defendant: T. W. & W. R. R. Co. v. Miller, 76 Ill. 278; C. & A. R. R. Co. v. Engle, 76 Ill. 317; Tefft v. Ashbaugh, 13 Ill. 602; Amos v. Sinnot, 4 Scam. 440; Pleasant v. Plant, 22 Wal. 116.

Rights which accrue under a statute and are not concluded by judgment, are lost by its repeal: Van Inwagen v. Chicago, 61 Ill. 31; Wilson v. O. & M. R'y Co. 64 Ill. 542.

Statutes will be interpreted so as to best promote the object intended: R. R. I. & St. L. R. R. Co. v. Heflin, 65 Ill. 366; Decker v. Hughes, 68 Ill. 33.

The verdict was against the weight of evidence: C. R. I. & P. R. R. Co. v. Herring, 57 Ill. 59; Q. A. & St. L. R. R. Co. v. Wellhœner, 72 Ill. 60; R. R. I. & St. L. R. R. Co. v. Coultas, 67 Ill. 398; T. W. & W. R. R. Co. v. Miller, 76 Ill. 278; St. L. A. & T. H. R. R. Co. v. Manly, 58 Ill. 300; Davenport v. Springer, 63 Ill. 276; C. B. & Q. R. R. Co. v. Parks, 18 Ill. 460.

Mr. ADOLPH MOSES, for appellee; that the negligence of a child is not to be measured by the standard of an adult, cited C. & A. R. R. Co. v. Becker, 76 Ill. 25; C. & A. R. R. Co. v. Murray, 71 Ill. 601; Kerr v. Forgue, 54 Ill. 482; C. & A. R. R. Co. v. Gregory, 58 Ill. 226.

The instruction given for plaintiff upon the liability of a railroad company by reason of running their engines at a prohibited rate of speed, was proper: P. C. & St. L. R. R. Co. v. Knutson, 69 Ill. 103; Rev. Stat. 1877, 773; Kissinger v. R. R. Co. 56 N. Y. 538; St. L. & T. H. R. R. Co. v. Dunn, 78 Ill. 197; T. W. & W. R'y Co. v. O'Connor, 77 Ill. 391; I. & St. L. R. R. Co. v. Peyton, 76 Ill. 340.

Upon the question of loss of rights accruing under a statute by a repeal of a statute: Rev. Stat. 1877, 960; Farmer v. The People, 77 Ill. 322; Roth v. Eppy, 80 Ill. 283.

If the negligence of the plaintiff is slight and that of defendant gross, a recovery may be had: G. & C. U. R. R. Co. v. Jacobs, 20 Ill. 478; C. & A. R. R. Co. v. Gretzner, 46 Ill. 76; St. L. A. & T. H. R. R. Co. v. Manly, 58 Ill. 300.

A less degree of negligence is required in a case where an infant is injured: Isabel v. Railroad Co. 60 Mo. 475; R. R. Co. v. Stout, 17 Wall. 660; R. R. Co. v. Gladmore, 15 Wall. 406; R. R. I. & St. L. R. R. Co. v. Delaney, 82 Ill. 198; Maher v. R. R. Co. 67 N. Y. 52; Wharton on Negligence, § 314; C. B. & Q. R. R. Co. v. Dewey, 26 Ill. 255.

The witnesses for defendant, being employes, all stand in the position of persons more or less accountable for the accident, and the jury are justified in giving their testimony less weight than that of others: C. B. & Q. R. R. Co. v. Triplett, 38 Ill. 484; C. B. & Q. R. R. Co. v. Cauffman, 38 Ill. 427.

Plaintiff need not aver that he was free from negligence: C. & N. W. R'y Co. v. Koss, 73 Ill. 394.

BAILEY, J.

This was an action on the case brought by appellee against appellant to recover damages for a personal injury alleged to have been received by appellee, in consequence of the negligence of the agents and servants of appellant. At the time of the injury, appellee was a boy eleven or twelve years old, residing with his parents in the city of Chicago, about a block and a half distant from the point where appellant's railroad crosses Harrison street. It appears that on the 2d day of September, 1874, at about eight o'clock in the evening, appellee was sent by his father on an errand to a point on the other side of appellant's railroad, and that while standing upon, or attempting to cross the railroad track at Harrison street, he was struck by one of appellant's engines and knocked down and severely injured. On the trial below, the jury found a verdict for appellee, and assessed his damages at $4,000, for which sum and costs judgment was rendered against appellant.

The record shows that at the time of the injury, there was in force an ordinance of the city of Chicago, providing, that no locomotive engine should be driven or run upon any railroad track within said city at a greater speed than six miles per hour, and evidence was introduced at the trial, on behalf of appellee, tending to show that at the time of the injury, the engine was being run at a rate of speed prohibited by said ordinance. Under these circumstances the court gave to the jury, at the instance of appellee, the following instruction:

“The court instructs the jury, that the laws of the State of Illinois provide, that whenever any railroad shall run any locomotive engine at a greater rate of speed than is permitted by any ordinance of such city, such railroad company shall be liable to the person aggrieved for all damages done to such person by the negligence of the railroad or its agents, and such injury shall be presumed to have been done by the negligence of such corporation; but such presumption may be rebutted by such railroad company by satisfactory evidence before the jury; so, if the jury believe from the evidence in this case, coming from the witness, or appearing from circumstances in evidence bearing upon such point, and considering the time and distance traveled by defendant's engine after crossing Harrison street going north, and re-crossing south, that at the time of the accident in question, said locomotive engine was running across Harrison street at a greater rate of speed than six miles per hour, and that the plaintiff was injured on said Harrison street by said engine, then the law presumes such injury to have been done by the negligence of the defendant company, unless it appears from the evidence to the satisfaction of the jury that the plaintiff's negligence was gross and willful.”

Apart from the provisions of the statute alluded to in this instruction, the law of this State unquestionably is, that a plaintiff whose own negligence has materially contributed to the injury of which he complains, cannot recover damages for such injury unless it appear that his negligence was slight, and that of the defendant gross in comparison therewith. The instruction, however, lays down the rule that in cases coming within the purview of the statute, the plaintiff's right to a recovery is defeated by no degree of negligence on his part less than that which is gross or willful.

This statute (R. S. 1874, chap. 114, § 62,) is a modification of the act of February 16, 1865 (Pub. Laws, 1865, p. 103). Section 1 of the last named act provided that any railroad company running its trains or engines through the limits of any incorporated city or town at a greater rate of speed than that permitted by the ordinances of such city or town, should be liable to each individual sustaining damage done by such train or engine to the full extent of such damage. Section 2, provided, that if any live stock should thereby be killed, the same should be presumed to have been done by the negligence of the company or its agents. By the revision of 1874 these two sections are combined in one, and it is now provided that, whenever any railroad corporation shall...