The Pittsburgh v. Shannon
| Decision Date | 31 March 1882 |
| Citation | 11 Ill.App. 222,11 Bradw. 222 |
| Parties | THE PITTSBURGH, CINCINNATI AND ST. LOUIS RAILWAY COMPANYv.PATRICK SHANNON. |
| Court | United States Appellate Court of Illinois |
OPINION TEXT STARTS HERE
APPEAL from the Superior Court of Cook county; the Hon. R. S. WILLIAMSON, Judge, presiding. Opinion filed July 25, 1882.
This was an action on the case, brought by Patrick Shannon against the Pittsburgh, Cincinnati and St. Louis Railway Company, to recover damages for injuries to the plaintiff's person and property caused by a collision with one of the defendant's locomotive engines. It appears that on the 26th day of May, 1880, the plaintiff was driving his horse and wagon along Sangamon street, in the city of Chicago, where it crosses the defendant's railway track, and that as he was attempting to cross said track, one of the defendant's engines collided with his horse and wagon, killing the horse, destroying the wagon, and inflicting injuries on the plaintiff's person.
The declaration, which originally consisted of three counts, charged that the servants of the defendant were guilty of negligence, in the driving and management of said engine; in running at a rate of speed prohibited by the ordinance of the city; and in failing to ring a bell or sound a whistle as required by statute. Two additional counts were subsequently filed, in one of which the defendant is charged with negligence in failing to keep a flagman at the crossing in question as required by the ordinance of the city; and in the other, with failing to give the plaintiff timely notice, by a flagman or otherwise, of the approach of the engine.
The evidence at the trial, so far as it relates to the alleged negligence of the defendant and its servants, was conflicting, and there was also evidence tending to charge the plaintiff with negligence in failing to take reasonable and ordinary precautions to ascertain whether an engine was approaching, before undertaking to cross the track. The record shows that the court, among other instructions, gave to the jury, at the instance of the plaintiff, the following:
1. “The jury are instructed that, if they believe from the evidence in this case, that the crossing where the injury referred to in this case occurred, was a public highway and street crossing in the city of Chicago, where large numbers of vehicles and foot passengers were in the habit of passing, and that defendant did not have a flagman at said crossing when said accident occurred at said crossing, and immediately prior thereto, to warn approaching wagons and foot passengers of the approach of locomotive engines in that way; had such a flagman and that such flagman failed to give the plaintiff sufficient and timely warning, by signaling or otherwise, of the approach of the engine which came in contact with plaintiff's wagon, and that the plaintiff was injured thereby while using all reasonable care and diligence on his part in crossing said railway track or tracks, then the jury should find for the plaintiff.
2. In this case, though the jury may believe from the evidence, that the plaintiff was guilty of some slight negligence, which contributed to the alleged injury complained of in the declaration filed in this cause, yet, if the jury further believe from the evidence, that the defendant, by its servant or servants, was guilty of gross negligence in that regard, and that the injury complained of was caused thereby, and that the negligence of the plaintiff was but slight, then the plaintiff is entitled to recover.
4. The court instructs the jury, that if they find for the plaintiff in this case, they may take into consideration, in assessing the damages, not only his actual outlay in curing himself of his injuries, if any such has been proved, and the value of the property which was destroyed, if any such has been proved, but also his pain and suffering of body, if any have been proved, and in computing his damages, they shall assess the same at such sum, not exceeding amount claimed in the declaration, as shall appear to them reasonable under the evidence, taking into account his permanent injuries, if any such have been found.”
The jury found the defendant guilty, and assessed the plaintiff's damages at $3,400, for which sum, less $1,400 remitted by the plaintiff, and costs, the court, after overruling the defendant's motion for a new trial, gave judgment for the plaintiff.
Messrs. WILLARD & DRIGGS, for appellant; that a person who knowingly goes upon a railroad track, regardless of the approach of trains, is, as a matter of law, guilty of gross negligence, cited Garland v. C. & N. W. R. R. Co. 8 Bradwell, 571; C. & A. R. R. Co. v. Robinson, 8 Bradwell, 140; St. L., A. & T. H. R. R. Co. v. Pflughmacher, 9 Bradwell, 300; C. & N. W. R. R. Co. v. Sweeny, 52 Ill. 325; C. B. & Q. R. R. Co. v. Van Patten, 64 Ill. 510; C. B. & Q. R. R. Co. v. Lee, 68 Ill. 576; C. R. I. & P. R. R. Co. v. Bell, 70 Ill. 102; C. R. I. & P....
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