The Ohio v. Stratton

• Decision Date: 30 June 1875
• Citation: 1875 WL 8426,78 Ill. 88
• Parties: THE OHIO AND MISSISSIPPI RAILWAY COMPANYv.CHARLES T. STRATTON.
• Court: Illinois Supreme Court

78 Ill. 88

1875 WL 8426 (Ill.)

THE OHIO AND MISSISSIPPI RAILWAY COMPANY

v.CHARLES T. STRATTON.

Supreme Court of Illinois.

June Term, 1875.

APPEAL from the Circuit Court of Marion county; the Hon. AMOS WATTS, Judge, presiding.

This was an action on the case, by the appellee, against the appellant, to recover damages for personal injuries alleged to have been caused by negligence on the part of the defendant. The opinion of the court gives a statement of the facts. The jury returned a verdict in favor of the plaintiff for $6000, upon which the court rendered judgment, overruling a motion by the defendant for a new trial.

Mr. H. P. BUXTON, for the appellant. Mr. B. B. SMITH, and Messrs. CREWS & HAYNES, for the appellee.

Mr. CHIEF JUSTICE SCOTT delivered the opinion of the Court:

When plaintiff was injured, he was but ten years old. That was in 1863. He had just arrived from St. Louis. His father, in whose care he was while in the city, desired to leave for Salem by the evening express train on defendant's road. That train, it was known, did not usually stop at Salem, but on inquiry of the division superintendent, it was ascertained it would stop that night. Accordingly, he procured passage for himself and son. On their arrival at Salem, in attempting to leave the cars, plaintiff was in some way thrown or fell under the moving cars, and had both legs so badly crushed they had to be amputated. Soon after reaching his majority, plaintiff commenced this action to recover damages for the injuries sustained.

In the first count of the declaration, it is averred, as a ground of liability, that, plaintiff being a passenger from East St. Louis to Salem, defendant did not at the latter station slacken the speed of its train and stop a reasonable length of time to enable plaintiff to get off the cars without injury to his person; that defendant did not use due care in that regard, but, on arrival at Salem, slackened the speed of the train, thereby inviting plaintiff to leave the cars, and that, with the consent and persuasion of defendant, plaintiff did alight from the cars, but, by means of the rapid rate at which the train was moving, he was thrown violently upon the platform, and thence underneath the moving cars; and in the second count it is averred defendant did not at Salem stop its train a reasonable length of time to allow plaintiff to leave it with safety, but negligently and carelessly suddenly started the train in motion, whereby plaintiff was violently thrown underneath the moving cars, and was injured.

It is not claimed any recovery can be had on the first count. The proof shows, and it is not now disputed, the train was stopped a reasonable time to permit all persons to get off with entire safety. A number of passengers, among them women and children, did get off at that station, ample opportunity being allowed for that purpose. There can be no pretense that branch of the case has been sustained by any testimony offered. The contest is as to the cause of action attempted to be set up in the second count, viz: whether defendant, although it may have stopped its train, suddenly started it up again with such violence, while plaintiff was in the act of getting off, as to throw him upon the platform, and from thence under the cars.

The jury found the issues for plaintiff, and the principal question is, whether the verdict can be maintained on the testimony.

It will not be necessary to remark on all the instructions given on behalf of plaintiff, further than to say many of them are faulty in the statements of legal principles applicable to the case. The case is by far too serious in its character, and too sad in its consequences, to be decided on any mere technical objections to instructions. We prefer to place our decision on the merits of the case alone. The injury plaintiff has sustained is irreparable, and, if a recovery can be had at all, the present judgment ought to be affirmed. No measure of damages can make full reparation. These considerations have induced a most careful and painstaking investigation of the case in all its phases. We have examined the record with that degree of care the importance of the case demands, and, however much we may be touched by the inexpressibly sad misfortune of plaintiff, we have been unable to discover, even under the most favorable view of the evidence, any tenable ground upon which to place an affirmance of the judgment in his favor.

Plaintiff was too young to exercise any great degree of care for his personal safety. He was largely controlled in his actions by his father, in whose care he had been traveling. The arrangement for leaving St. Louis on the evening express train, that did not usually stop at Salem, was made by his father. Plaintiff had nothing to do with the selection of the train he was to go on. An accommodation was to leave on the same evening, but at a later hour, which it was known would stop at all the stations, for the convenience of passengers; but his father chose for them the express train, and plaintiff had no choice in the matter.

Conceding it to be a correct principle, the negligence of the parent or other guardian having in charge a child of tender years would not excuse the carrier...