The Pa. Co. v. Frana

• Decision Date: 17 November 1884
• Citation: 1884 WL 10022,112 Ill. 398
• Parties: THE PENNSYLVANIA COMPANYv.ALBERT FRANA.
• Court: Illinois Supreme Court

112 Ill. 398

1884 WL 10022 (Ill.)

THE PENNSYLVANIA COMPANY

v.ALBERT FRANA.

Supreme Court of Illinois.

Filed at Ottawa Nov. 17, 1884.

OPINION TEXT STARTS HERE

APPEAL from the Appellate Court for the First District;--heard in that court on appeal from the Superior Court of Cook county; the Hon. JOSEPH E. GARY, Judge, presiding.

This was an action brought by Albert Frana, against the Pennsylvania Company, to recover for a personal injury received by the plaintiff while attempting to cross the railroad track of the defendant with a wagon and team, attributing the accident to the alleged negligence of the defendant's servants in the management of its train. A judgment in favor of the plaintiff in the trial court was affirmed in the Appellate Court, and the defendant brings the cause to this court on his further appeal.

Messrs. WILLARD & DRIGGS, for the appellant:

Appellee's employers were guilty of negligence in two respects, viz:

First--In keeping their lumber yard at the place in question without a permit from the city council, as required by ordinance. The failure of any person to perform a duty imposed by legal authority is prima facie negligence. Rail way Co. v. Loomis, 13 Ill. 548; Railway Co. v. Terhune, 50 Id. 151; Weick v. Lauder, 75 Id. 93; Railway Co. v. Berlink, 2 Bradw. 427; Shearman & Redfield on Negligence, sec. 39.

Second--Appellee's employers were guilty of negligence in piling their lumber so high on the north-east corner of the yard as that drivers of their wagons coming from the west, and drivers of trains from the south, could not see each the other approach to the point of crossing at said corner. Railroad Co. v. Payne, 49 Ill. 499; Railway Co. v. Larmon, 67 Id. 68; Railway Co. v. Maxfield, 72 Id. 95; Railroad Co. v. Hillmer, Id. 235; Railway Co. v. Smith, 78 Id. 112; Railroad Co. v. Lee, 87 Id. 454; Railway Co. v. Pennell, 94 Id. 448.

The negligent conduct of appellee's employers, as aforesaid, is chargeable to the appellee himself.

The plaintiff unnecessarily and voluntarily placed himself in known danger. In such case he can not recover compensation for an injury. Railway Co. v. Gretzner, 46 Ill. 755; Railway Co. v. Bell, 70 Id. 102; Railway Co. v. Harwood, 80 Id. 88; Railway Co. v. Hetherington, 83 Id. 510; Railway Co. v. Hart, 87 Id. 529; Railway Co. v. Dimick, 96 Id. 42; Railway Co. v. Garland, 8 Bradw. 571.

A railway company will not be held liable for an injury for failing to place a flagman at points not required by law or common usage. Beisiegel v. Railroad Co. 40 N. Y. 9; Weber v. Railroad Co. 58 Id. 451; Welsch v. Railway Co. 72 Mo. 451; Kenney v. Crocker, 18 Wis. 74.

Railway trains have the preference or prior right to passage, and it is the duty of persons in charge of vehicles drawn by animal power to give way to cars propelled by steam power. Railroad Co. v. Lee, 87 Ill. 454; Hugan v. Railway Co. 15 N. Y. 380; Wilbrand v. Railway Co. 3 Bosw. 314; Commonwealth v. Temple, 14 Gray, 69; McCarty v. State, 37 Miss. 411; Zimmerman v. Railroad Co. 71 Mo. 476; Railroad Co. v. Damerell, 81 Ill. 450; Pierce on Railroads, 342. Mr. JAMES FRAKE, and Mr. CHARLES E. PICKARD, for the appellee, after stating the facts, made the following points:

The plaintiff was bound to exercise only ordinary care. Railroad Co. v. Grimes, 13 Ill. 585; Stratton v. Horse Railway Co. 95 Id. 25.

What constitutes such ordinary care, and what is an absence of ordinary care on the part of the defendant, is a question of fact, to be determined by the jury from all the circumstances of the case, as disclosed by the evidence. Railroad Co. v. Haworth, 39 Ill. 346; Kolb v. O'Brien, 86 Id. 210; Garland v. Railway Co. 8 Bradw. 571; Schmidt v. Railway Co. 83 Ill. 405; Railway Co. v. Donahue, 75 Id. 106; Railway Co. v. Ryan, 70 Id. 211; McClelland v. Mitchell, 82 Id. 35; Johnson v. Smallwood, 88 Id. 73.

The absence of the flagman was, at the time and under the circumstances, gross negligence on the part of appellant, because required at that point by city ordinance, and because required at the point, under the circumstances, as a matter of ordinary and usual precaution on the part of the company. Railway Co. v. Dunn, 78 Ill. 197; Kinney v. Crocker, 18 Wis. 74; Welsch v. Railway Co. 72 Mo. 451.

Even if it were no part of the flagman's duty to flag appellee, yet his omission to do so was negligence, as he had always done so before, and his absence was a tacit representation that all was right, and virtually an invitation to come upon the track. Lunt v. Railway Co. 1 L. R. Q. B. 277; Stapley v. Railway Co. 1 L. R. (Ex.) 21.

The absence of the flagman, upon whose presence, when a train was approaching, Frana had been taught to rely, excused him from stopping, in addition to looking and listening,--that is, rendered it unnecessary at the time as a constituent factor in “ordinary care” and “due diligence.” Railroad Co. v. Tuplett, 38 Ill. 483; Railroad Co. v. Lee, 87 Id. 454; Railroad Co. v. Hillmer, 72 Id. 235. Even if appellee were negligently upon the track, yet if by the exercise of ordinary care and diligence the servants of appellant could have seen him in time to have stopped the train and thus have avoided the accident, a failure to thus stop the train would render appellant liable. Railway Co. v. Kellam, 92 Ill. 245; Springall v. Ball, 4 F. & F. 472; Harlan v. Railway Co. 65 Mo. 22.

Mr. JUSTICE CRAIG delivered the opinion of the Court:

No question is made in regard to the admission or exclusion of evidence. The only question, therefore, to be considered is, whether the law governing the case was properly given to the jury by the instructions of the court.

The court gave two instructions on behalf of the plaintiff, and they are both claimed to be erroneous. The first in substance directed the jury that if they believed, from the evidence, that the plaintiff, while exercising ordinary care to avoid the injury, was injured by the negligence of the defendant, as charged in the declaration, they will find for the plaintiff. The second count of the declaration charged the defendant with negligence in failing to have a flagman at the place of the accident, in violation of an ordinance of the city of Chicago, and it is claimed that the words of the instruction, “as charged in the declaration,” left the jury to determine the applicability of the ordinance to the circumstances of the case. We think this is a misapprehension of the meaning of the instruction. Whether the railroad was required to keep a flagman at the place of the accident, whose duty it was to flag persons who attempted to cross the track, was not alluded to or mentioned in the instruction. If the negligence of the defendant was established by the evidence, that evidence was necessarily confined to the averments of the declaration, as negligent acts not averred in the declaration could not be proven,--and we perceive no substantial objection to the instruction. The second instruction, to which objection is made, declared, in substance, that if the jury believed, from the evidence, under the instructions of the court, that the plaintiff was entitled to recover, then, in fixing the damages, the jury should take into consideration all the circumstances as disclosed by the evidence, “such as the circumstances attending the injury.” Under this last clause of the instruction, counsel for appellant urge that the jury might give punitive damages. There was no evidence introduced on the trial which would authorize the jury to give punitive damages, and by the terms of the instruction they were limited and confined to the evidence in making a verdict. Indeed, so far as appears from the record, there was no pretence on the part of plaintiff that he was entitled to recover punitive damages. As no such claim was made, and as no evidence was offered to establish a claim of that character, the instruction could not have misled the jury.

The court refused defendant's instruction No. 1, which was as follows:

“The jury are instructed that it is the duty of a person, before attempting to cross a railway track, to stop, if necessary, and look and listen for the approach of trains, before entering upon such track; and if the jury believe, from the evidence, that the plaintiff in this case could have discovered the approach of the defendant's train, and avoided the injury in question by having stopped his mule before driving upon the track, and looking and listening for the approach of said train, then he can not recover in this case, unless the jury shall believe, from the evidence, that the agents or servants of the defendant were guilty of gross negligence in the operation of said...