The Toledo v. Grable
| Decision Date | 31 January 1878 |
| Citation | 1878 WL 9904,88 Ill. 441 |
| Parties | THE TOLEDO, WABASH AND WESTERN RAILWAY COMPANYv.LLOYD L. GRABLE, ADMR. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
WRIT OF ERROR to the Circuit Court of Scott county; the Hon. CYRUS EPLER, Judge, presiding.
Messrs. DUMMER, BROWN & RUSSELL, for the plaintiff in error.
On the 8th day of June, 1874, Dora Lena Shores was struck by a moving locomotive on defendant's road and was instantly killed. Its mother, while endeavoring to rescue her child from the imminent peril to which it was exposed, was also struck and killed by the same train. The residence occupied by the parents was situated near the track of defendant's road, with no fence or anything else to prevent the child from going upon the railroad whenever it chose to do so. Immediately before the accident occurred, the father and mother of the child were in the house; he was suffering from headache, and his wife was engaged in bathing his head. While so engaged, they heard the sound of the whistle upon the locomotive, and on observing that the child was not present, its mother went in search of it. After calling twice for her child she saw it either upon or coming upon the track in front of the advancing train, and flew with all possible haste to rescue it, but only succeeded in reaching it as it was struck by the locomotive, and was herself killed with her hand upon her child. The train that occasioned this most unfortunate accident was nearly, if not exactly, on its usual time, the same it had been running on for some considerable time previous. It must be, the parents of the child knew the time the train would usually pass their house. This action was brought by the administrator of the deceased child to recover damages resulting to the next of kin on account of its death.
Numerous questions have been elaborately argued by counsel for defendant, but we do not deem it necessary to remark upon all of them. The intestate, at the time of her death, was only twenty-eight months old, and of course she was too young to exercise any care for her personal safety. But its parents, in whose custody the child was, must be charged with the duty of exercising reasonable care for its safety, and if, for the want of such care, the child was killed, it is apprehended there can be no recover on behalf of the next of kin. What degree of care the parents in this instance exercised for the personal safety of...
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...would be to enrich the child's parents, who would inherit his estate, and thus profit by their own gross neglect of duty. Railway Co. v. Grable, 88 Ill. 441; Railway Co. v. Schumilowsky, 8 Ill.App. Railway Co. v. Wilcox, 33 Ill.App. 450, 138 Ill. 370, 27 N.E. 899. But a contrary view was ex......
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