The Pa. Co. v. Frana

• Decision Date: 31 March 1883
• Citation: 13 Ill.App. 91,13 Bradw. 91
• Parties: THE PENNSYLVANIA COMPANYv.ALBERT FRANA.
• Court: United States Appellate Court of Illinois

13 Ill.App. 91

13 Bradw. 91

THE PENNSYLVANIA COMPANY

v.ALBERT FRANA.

Appellate Court of Illinois, First District.

March Term, 1883.

OPINION TEXT STARTS HERE

APPEAL from the Superior Court of Cook county; the Hon. ELLIOTT ANTHONY, Judge, presiding. Opinion filed June 27, 1883.

This suit was by Frana, the appellee, to recover against the Pennsylvania Company, the appellant, for a personal injury suffered by the plaintiff, May 18, 1882, resulting in the loss of his right leg and the big toe of the other foot, by being run into by a car of the defendant, which was being backed up by a locomotive, while plaintiff was riding in a wagon drawn by a mule, and attempting to cross the defendant's railroad track, at its intersection with North Canal street, in the city of Chicago.

The declaration contains two counts, the first of which charges general negligence in the management of said car and locomotive engine; the second charges negligence in failing to have a flagman at the place of the collision in violation of an ordinance of said city. On the trial upon a plea of not guilty, the plaintiff with his other evidence introduced an ordinance of said city as follows:

“All railroad companies whose track or tracks cross or intersect any of the streets in the city of Chicago, east of the west line of Western avenue, or north of the south line of Egan avenue, and also at all crossings of street or horse railways, shall station, keep and maintain at all times, at their own expense, at each and every of said street and railroad crossings, a flagman, whose duty it shall be to signal persons traveling in the direction of any or either of the crossings, and warn them of the approach of any locomotive engine, or any impending danger.”

There was no evidence that the place where the accident occurred was a street or horse railway, or tending to show that such locality was east of west line of Western avenue, or north of the south line of Egan avenue, but only, that it was in the city of Chicago. There was a conflict of evidence upon the question of negligence of defendant, and whether the plaintiff was, at the time, in the exercise of ordinary care.

At the instance of the plaintiff's counsel, the court gave the following instructions:

1. “The court instructs the jury on behalf of the plaintiff, that if they believe, from the evidence, that the railroad track of the defendant intersects with North Canal street at a point just north of the line beyond of Parsons & Foster; and if they believe from the evidence that an ordinance of the city of Chicago required the defendant to keep and maintain a flagman at such point in order to give warning of the approach of trains along the said railroad track; and if they further believe, from the evidence, that at the time of the accident, if any, there was no flagman present as such point, or that no flagman gave warning of the approach of the train along the said track; and if the jury believe, from the evidence, that the plaintiff undertook to cross the tracks of the defendant at said point, and that before attempting to cross the same he stopped and looked and listened to see if any trains were approaching, and was using due care at said time, and that he did not know of the approach of any train of the defendant, and did not see or hear of the approach of any trains, and received no notice or warning of the approach of any, and that he was struck by a train of cars of the defendant at said time and place, and sustained an injury in consequence of the neglect of the servants of the defendant, and not through any negligence of the plaintiff, then the plaintiff can recover in this case.”

2. “The court further instructs the jury in behalf of the plaintiff, that if they believe, from the evidence, that the railroad track of the defendant intersects North Canal street at or near the point where the accident, if any, happened; and if they further believe, from the evidence, it was the duty of the defendant to keep a flagman at said point, and that the defendant regularly kept and employed a flagman at or near such point, whose duty it was to give warning of the approach of trains along the track of the defendant; and if they further believe, from the evidence, that at the time of accident, if any, the flagman was absent, engaged in the performance of other duties than that of giving warning to those crossing the track or tracks of the defendant, and that the said plaintiff was at the time of the accident referred to, using due care, and that he was injured by reason of the negligence of the servants of the defendant, and not through his own negligence, then the plaintiff is entitled to recover in this case.”

The plaintiff had judgment for six thousand dollars, and defendant appealed to this court.

Messrs. WILLARD & DRIGGS, for appellant; that the first count of the declaration was too general and the demurrer thereto should have been sustained, cited C. B. & Q. R. R. Co. v. Harwood, 90 Ill. 425.

As to appellee's duty to get from his vehicle and go forward to a point where a view of appellant's approach could be obtained: Indianapolis & St. L. R. R. Co. v. Stables, 62 Ill. 313; C. & N. W. R'y Co. v. Hatch, 79 Ill. 137; Flemming v. W. P. R. R. Co. 49 Cal. 253; Penn. R. R. Co. v. Ackerman, 74 Penn. 265; Weiss v. Penn. R. R. Co. 79 Penn. 157; Duffy v. R. R. Co. 32 Wis. 269; Davis v. N. Y. C. R. R. Co. 47 N. Y. (Sickles) 400; C. & R. I. R. R. Co. v. Still, 19 Ill. 499; G. & C. U. R. R. Co. v. Dill, 22 Ill. 265; C. & N. W. R'y Co. v. Sweeney, 52 Ill. 325; C. B. & Q. R. R. Co. v. Lee, 87 Ill. 454; Toledo, W. & W. R'y Co. v. Jones, 76 Ill. 311; C. B. & Q. R. R. Co. v. Harwood, 80 Ill. 88; C. R. I. & P. R. R. Co. v. Austin, 69 Ill. 426; St. Louis, etc. R. R. Co. v. Manly, 58 Ill. 300.

The location of the lumber pile so as to obstruct the view of an approaching train was negligence on the part of appellee's employer and must be attributed to appellee himself: Indianapolis & St. L. R. R. Co. v. Smith, 78 Ill. 112; Rockford, R. I. & St. L. R. R. Co. v. Hillmer, 72 Ill. 235.

An ordinance of the city has the same force and effect as a law passed by the legislature and can not be regarded otherwise than a law of, and within the incorporation: Mason v. City of Shawneetown, 77 Ill. 533.

It is error to instruct the jury to pass upon a question of law: Amend v. Smith, 87 Ill. 198.

An instruction which ignores the pleadings with respect to the negligence alleged and allows a recovery for negligence of any kind, is erroneous: Chapin v. Thompson, 7 Bradwell, 288; Katz v. Moessinger, 7 Bradwell, 536.

As to instructions upon contributory negligence: C. B. & Q. R. R. Co. v. Van Patten, 74 Ill. 91; C. & N. W. R'y Co. v. Dimick, 96 Ill. 42; W. St. L. & P. R. R. Co. v. Shacklett, 15 Chicago Legal News, 172.

Oral instructions or oral modifications of written instructions are not allowed: Ray v. Wooters, 19 Ill. 81; I. C. R. R. Co. v. Hammer, 85 Ill. 526.

It is the duty of the court to pass on all instructions asked, regardless of the time when presented: Kepperly v. Ramsden, 83 Ill. 354.

Mr. JAMES FRAKE and Mr. CHARLES E. PICKARD, for appellee; that by pleading to the declaration after the overruling of the demurrer, the right to assign such overruling as error is waived, cited Vanderbilt v. Johnson, 3 Scam. 49; Brown v. Ill. Mut. Ins. Co. 42 Ill. 366.

The plaintiff was bound to use only ordinary care and diligence: Stratton v. Central City Horse Car Co. 95 Ill. 25.

The maintaining of a flagman at the place was a necessary precaution on the part of the company, and an omission to do so constituted gross negligence: St. L. etc. R. R. Co. v. Dunn, 78 Ill. 197.

What constitutes ordinary care is a question of fact to be found by the jury and not of law to be laid down by the court: G. W. R. R. Co. v. Haworth, 39 Ill. 346; Kolb v. O'Brian, 86 Ill. 210; Garland v. C. & N. W. R'y Co. 8 Bradwell, 571; Village of Warren v. Wrigler, 103 Ill. 98.

The finding of the jury upon the question of comparative negligence should not be set aside unless they were actuated by passion or great prejudice: C. & N. W. R'y Co. v. Ryan, 70 Ill. 211; McClelland v. Mitchell, 82 Ill. 35; Johnson v. Smallwood, 88 Ill. 73.

An ordinance is admissible in evidence: Barr v. Village of Auburn, 89 Ill. 361; Booth v. Town of Carthage, 67 Ill. 102.

Even if the jury did construe the ordinance, the instruction could not have prejudiced appellant as they construed it rightly and the case should not therefore be reversed: Dishon v. Schorr, 19 Ill. 59; Kendall v. Brown, 86 Ill. 387.

An averment of negligence is sufficient to admit proof of gross negligence: Rockford, R. I. & St. L. R. R. Co. v. Phillips, 66 Ill. 548.

As to instructions upon comparative negligence: Parker v. Fergus, 52 Ill. 420; Ryan v. Donnelley, 71 Ill. 100; Green v. Mann, 11 Ill. 613.

Even if an...