The Toledo v. Miller

• Court: Illinois Supreme Court
• Writing for the Court: SCOTT
• Citation: The Toledo v. Miller, 76 Ill. 278, 1875 WL 8189 (Ill. 1875)
• Decision Date: 31 January 1875
• Parties: THE TOLEDO, WABASH AND WESTERN RAILWAY COMPANYv.ANDREW J. MILLER.

76 Ill. 278

1875 WL 8189 (Ill.)

THE TOLEDO, WABASH AND WESTERN RAILWAY COMPANY

v.ANDREW J. MILLER.

Supreme Court of Illinois.

January Term, 1875.

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

This was an action on the case, by Andrew J. Miller, administrator of the estate of James D. Miller, deceased, against the Toledo, Wabash and Western Railway Company, to recover damages for negligently and wrongfully causing the death of the intestate.

A trial was had, the jury finding the defendant guilty, and assessing plaintiff's damages at $3500. The circuit court overruled a motion by defendant for a new trial, and rendered judgment on the verdict, and the defendant appealed.

Messrs. NELSON & ROBY, and Mr. A. J. GALLAGHER, for the appellant.

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

Mr. JUSTICE SCOTT delivered the opinion of the Court:

This action was brought by the administrator, under the statute, to recover damages resulting to the next of kin of James D. Miller, whose death was caused by a collision of the wagon, on which he was riding, with a passenger train on appellant's road.

It will not be necessary to consider all the points raised upon the record, for the reason that, in no view that can be taken, can the judgment be maintained. Our conclusion is, from a careful consideration of the entire case in all its phases, the verdict is contrary to the weight of the evidence.

When the accident occurred, deceased was on the wagon with the witness Jones. The road on which they approached the crossing ran east and west, and was crossed nearly at a right angle by the railroad. Some complaint is made as to the condition of the crossing and its approaches. But conceding they were defectively constructed, we do not see how that fact tended to produce the injury. The accident is not attributable to that cause, but to the thoughtless conduct of the witness Jones in driving his team upon the crossing without observing due caution. His attention must have been absorbed with other thoughts, and perhaps it never occurred to him he was approaching a railroad crossing until he was in the midst of dangers from which he could not extricate himself and his little companion.

Whether the team suddenly became unmanageable and ran upon the track in front of the advancing train, according to the account the witness Jones gave of it at the time, is immaterial. All the witnesses concur that, had he been on the look-out, he...