The Toledo v. Jones

• Decision Date: 31 January 1875
• Citation: 1875 WL 8197,76 Ill. 311
• Parties: THE TOLEDO, WABASH AND WESTERN RAILWAY CO.v.JOHN JONES.
• Court: Illinois Supreme Court

76 Ill. 311

1875 WL 8197 (Ill.)

THE TOLEDO, WABASH AND WESTERN RAILWAY CO.

v.JOHN JONES.

Supreme Court of Illinois.

January Term, 1875.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Macon county; the Hon. C. B. SMITH, Judge, presiding.

This was an action on the case, by John Jones against the Toledo, Wabash and Western Railway Company. The opinion states the essential facts of the case. Messrs. NELSON & ROBY, and Mr. A. J. GALLAGHER, for the appellant.

Messrs. CREA & EWING, and Messrs. PARK & LEE, for the appellee.

Mr. JUSTICE BREESE delivered the opinion of the Court:

This was case, in the circuit court of Macon county, against a railroad company, for negligence. The jury found for the plaintiff, and assessed the damages at five thousand dollars. A motion for a new trial was entered by the defendant, which, on a remittitur of one thousand dollars being allowed by plaintiff, was denied, and judgment rendered for four thousand dollars, to reverse which defendant appeals.

The point, that the damages are excessive, though assigned as one of the reasons for a new trial, and also assigned as error, is not argued by appellant, and we will not consider it. The points made and relied on for reversal are, admitting improper evidence for the plaintiff, in this, that one Hall was permitted, against defendant's objection, to testify as to the condition of the culvert at the crossing.

Although it is alleged in the declaration that defendant neglected to keep the crossing in repair, it is not alleged that being out of repair contributed to, or caused the accident. The liability of the company was placed upon the negligent management of the train by not lessening the speed, and not giving the required warning. As to the crossing, the allegation is, that the defendant neglected to maintain and keep it in repair; carelessly and negligently conducted the locomotive and train on its approach to the crossing, by not slackening speed and not giving warning of the approach of the train to plaintiff; while he was driving to and across the railroad with all due care and caution, and while passing along such highway, the wagon, etc., was struck and overturned by said locomotive and train.

It is not perceived there is any allegation that the condition of the crossing contributed to the injury. It is no part of the gravamen of the action. Suppose a crossing is out of repair, as they will be sometimes, and no injury results to any one from its being in a dilapidated condition, an action of this kind will not lie, nor can its condition be used as a makeweight to sustain an entirely different charge in which the condition of the crossing is not an element.

This point is well taken, and permitting evidence to go in, against the objections of defendant, was error, and the instructions based upon that evidence should not have been given.

Appellee insists there is authority for the introduction of such evidence, and for the instructions thereon, in Indianapolis and St. Louis R. R. Co. v. Staples, 62 Ill. 313. In looking at that case we find nothing on this point, and are constrained to hold it was error to admit the testimony and give the instructions, as calculated to mislead the jury and draw their attention from the real gist of the action.

Appellant also complains that the third instruction should not have been given. It required the jury to find the defendant guilty of negligence, from the mere fact that a bell was not rung or a whistle sounded, regardless of the consideration whether the failure contributed to the accident or not.

This court said, in the case of this same company against Blackman, 63 ib. 117, that the provision of the statute requiring this duty of all railroads, is, that such companies shall be liable for any damages sustained by reason of the neglect to perform this duty, and not that it shall be liable for the mere non-performance; and, therefore, an instruction similar to the one now in review was erroneous; and the same was held in Galena and Chi. Union R. R. Co. v. Dill, 22 ib. 264.

In Ill. Cent. R. R. Co. v. Phelps, 29 ib. 447, it was held, that the omission to ring a bell or sound a whistle at a road crossing, does not render the company liable for injury to animals, unless it is made to appear the ringing or sounding might have prevented the injury. On the authority of these cases, we must hold the instruction erroneous. It is also complained by appellant that the ninth instruction was erroneous. That instruction is as follows:

“The court...