The Peoria v. Clayberg

• Decision Date: 20 November 1883
• Citation: 1883 WL 10347,107 Ill. 644
• Parties: THE PEORIA AND PEKIN UNION RAILWAY COMPANYv.JOHN CLAYBERG, Admr.
• Court: Illinois Supreme Court

107 Ill. 644

1883 WL 10347 (Ill.)

THE PEORIA AND PEKIN UNION RAILWAY COMPANY

v.JOHN CLAYBERG, Admr.

Supreme Court of Illinois.

Filed at Ottawa Nov. 20, 1883.

OPINION TEXT STARTS HERE

APPEAL from the Appellate Court for the Second District;--heard in that court on appeal from the Circuit Court of Peoria county; the Hon. DAVID MCCULLOCH, Judge, presiding.

Messrs. STEVENS, LEE & HORTON, for the appellant:

Plaintiff's second instruction, while it charges that the company was bound to take some means to warn passers over the street, fails to state the duties which the law required of the passers. It was a common highway, and the law required both to use reasonable and prudential precautions to avoid accident and danger. Chicago and Northwestern Ry. Co. v. Hatch, 79 Ill. 137.

The fourth instruction was wrong for several reasons. First, it singled out and gave undue prominence as to the question of the omission to ring a bell or sound a whistle when the train started, as constituting negligence. It has been held repeatedly, that an instruction which singles out and gives undue prominence to certain facts, ignoring other facts proved, and of equal importance to a proper determination of the case, is erroneous. Lake Shore and Michigan Southern R. R. Co. v. Berlink, 2 Bradw. 434; Calef v. Thomas, 81 Ill. 478; Homes v. Hale, 71 Id. 552; Hewett v. Johnson, 72 Id. 513; Evans v. George, 80 Id. 51; Anderson v. Warner, 5 Bradw. 417.

It was also faulty in telling the jury not only what constituted culpable negligence, but in the use of the word “culpable,” and in not instructing them as to any care observed in crossing the street by the employés, notwithstanding the omission to ring the bell or blow the whistle when the train was started. Our courts have never held that the omission to ring the bell or blow the whistle was “culpable negligence.” Negligence is a question of fact for the jury, and not a question of law. Chicago and Alton R. R. Co. v. Pennell, 94 Ill. 448. Mr. H. W. WELLS, for the appellee:

It is contended that the deceased was a trespasser; that he was on the company's private ground without license, and that the killing was not malicious, and the company is not liable. The case of Lake Erie and Western Ry. Co. v. Zoffinger, 10 Bradw. 252, cited to support this position, does not apply. In that case the injured party abandoned the highway and went on the defendant's right of way for his own convenience only, while in this, if the deceased went on the company's ground, it was in an attempt to pass a car left obstructing the highway, in which endeavor he stepped into a hole between the ties, which threw him down, and he was run over.

Where one makes an excavation on his own ground, so near the highway as to endanger the safety of those passing along the street in the exercise of proper care, and leaves the same unguarded, by fence or other protection against accident, he is liable. Wood on Nuisance, page 262, sec. 273; Burge v. Gardiner, 19 Conn. 507; Vale v. Bliss et al. 50 Barb. 358; Bird v. Holbrook, 4 Bing. 628.

Where there is no direct evidence that the negligence of the defendant occasioned the injury, the facts and circumstances, which the Supreme Court in several cases hold to be of sufficient proof, ( Illinois Central R. R. Co. v. Cragin, 71 Ill. 177, Chicago, Burlington and Quincy R. R. Co. v. Van Patten, 64 Id. 510, and Chicago, Burlington and Quincy R. R. Co. v. Lee, 68 Id. 577,) were in this case ample to satisfy the mind that the injury was due to the defendant's neglect.

It is gross negligence to run a train without a brakeman, over a public highway. Chicago and Alton R. R. Co. v. Sullivan, 63 Ill. 293.

Running a dark train through a village is greater negligence than walking on the track. In this case the rear of the train,--the end away from the engine,-- was perfectly dark and this dark end pushed across this most dangerous, crossing. Indianapolis and St. Louis R. R. Co. v. Galbreath, 63 Ill. 436.

The law is settled beyond doubt that at a railroad crossing each party owes the other a duty to use all proper care to avoid accident. In a city like Peoria, at a crossing like that described, the railroad company must use the highest care to insure the public safety. Toledo, Wabash and Western Ry. Co. v. Miller, 76 Ill. 278; Chicago, Burlington and Quincy R. R. Co. v. Stumps, 69 Id. 409.

Mr. JUSTICE SCHOLFIELD delivered the opinion of the Court:

Action on the case, for negligence resulting in the death of the plaintiff's intestate. Verdict of jury, and judgment of court thereon for plaintiff. Appeal to Appellate Court for Second District, and judgment of that court affirming the judgment of the circuit court, and appeal from that judgment to this court.

The judgment of the Appellate Court relieving us of all questions of fact, we are only to look into the alleged errors of law. The intestate, an errand boy, on his way home at the close of the day's labors, a little after dark, was struck while on a street, or on a cattle-guard by the side of a street, at a point where numerous railroad tracks and switches cross such street, by a moving car of defendant, and instantly killed. To show that the intestate was not observing due care at the time he received the fatal stroke from the car, the defendant, by its counsel, propounded to one of its witnesses the following question: “You may state whether or not you ever saw Fred (the deceased) get on, or attempt to get on, trains?” But, on objection, the court refused to permit the witness to answer the question. The counsel for the defendant then stated they proposed to prove by the witness under examination, and another witness named, that the deceased was in the habit of jumping on trains, but the court ruled that the evidence was inadmissible. No authority is referred to sanctioning the admission of such evidence, and we are not aware of any. Its effect is clearly to raise a collateral and immaterial issue. If such evidence is admissible to prove negligence on the part of the plaintiff's intestate, then the same character of evidence must be admissible to prove negligence on the part of the defendant, which has been condemned by the entire weight of judicial authority. In re Baltimore and Susquehanna R. R. Co. v. Woodruff, 4 Md. 242; Aldrich v. Pelham, 1 Gray, 510; Kidder v. Dunstable, 11 Id. 342; Collins v. Dorchester, 6 Cush. 396; Gahahan v. B. and L. R. R. Co. 1 Allen, 187; Hubbard v. A. and K. R. R. Co. 39...