The Union Rolling Mill Co. v. Gillen

• Decision Date: 30 September 1881
• Citation: 1881 WL 10594,100 Ill. 52
• Parties: THE UNION ROLLING MILL COMPANYv.THOMAS GILLEN.
• Court: Illinois Supreme Court

100 Ill. 52

1881 WL 10594 (Ill.)

THE UNION ROLLING MILL COMPANY

v.THOMAS GILLEN.

Supreme Court of Illinois.

Filed at Ottawa Jun. 20, 1881.Rehearing denied September Term, 1881.

APPEAL from the Appellate Court for the First District;--heard in that court on appeal from the Circuit Court of Cook county.

Messrs. LAWRENCE, CAMPBELL & LAWRENCE, for the appellant.

Messrs. HYNES, ENGLISH & DUNNE, for the appellee.

Mr. JUSTICE SHELDON delivered the opinion of the Court:

The Union Rolling Mill Company is a corporation engaged in the manufacture of iron and steel, and having its furnaces and its mills for rolling the metal in the city of Chicago. It owns a couple of switch engines, for the purpose of delivering on or removing from its premises cars loaded with its material, upon certain spur or switch tracks, which are laid to connect its grounds with the tracks of the Chicago and Alton Railroad Company, which pass through this part of the city. November 21, 1878, Gillen was engaged in hauling stone to the mills of the Union Rolling Mill Company. Having delivered a load, and while passing over one of the switch tracks above mentioned, where it crosses Ashland avenue, a collision occurred between his wagon and a car load of coke which was being backed along said track by one of the engines of the rolling mill company. The wagon in which Gillen was riding was crushed, and he received some injuries, to recover damages for which this suit was brought, and which resulted in his obtaining a verdict for $5000, and a final judgment for $3000, in the circuit court, a remittitur of $2000 having been entered by plaintiff, in accordance with a suggestion of the court. On appeal to the Appellate Court for the First District the judgment was affirmed, and the company appealed to this court.

As to the question of fact whether the verdict is supported by the evidence, that must be considered as settled by the judgment of the Appellate Court, and we can consider only the questions of law raised in the case, and not controverted questions of fact.

The giving of the second instruction for the plaintiff is assigned as error.

The instruction stated, that if Gillen was crossing the track while in the exercise of due care and diligence, and defendant ran its train upon the track “recklessly and negligently, without ringing a bell or blowing a whistle, or warning of any kind, and that the defendant ran said car upon and against the plaintiff's wagon, thereby smashing the same, and thereby throwing the plaintiff from his seat on the wagon, and thereby causing to the plaintiff serious injuries, then the plaintiff is entitled to recover.” The objection taken to the instruction is, that it omits the vital condition that the running of the train “recklessly and negligently, without ringing a bell or blowing a whistle, or warning of any kind,” must have been the cause of the accident; that, admitting no warning was given, it does not necessarily follow that such omission or negligence was the cause of plaintiff's injuries.

Appellee's counsel insist that the word “thereby,” in the instruction, was evidently intended to refer to all that precedes it, both the manner of propulsion and the act of striking, and that it could not have been otherwise understood by the jury. We are inclined to take this view of the instruction, especially in view of the evidence in the case.

Gillen, the plaintiff, testifies that, going north on Ashland avenue, when he started to cross this switch track, the locomotive was standing, with a car attached, upon the track, about eight or ten feet west from where he crossed; that when he got to the track it was still standing, and just as he went to move across, walking his team slowly, the engineer put on steam and the engine ran against him, etc. Another witness corroborates this statement that the engine and car were standing still on this side track at the time, and both state the bell was not rung nor the whistle sounded. In opposition to this, Reagan, who was in charge of the locomotive, states that he ran up the main track on Ashland avenue until he got to the switch; that he ran north of that, when the switch was...