The Wabash v. Shacklet

• Decision Date: 31 January 1883
• Citation: 105 Ill. 364,1883 WL 10142,44 Am.Rep. 791
• Parties: THE WABASH, ST. LOUIS AND PACIFIC RAILWAY COMPANYv.LOUISA J. SHACKLET, Adm'x.
• Court: Illinois Supreme Court

105 Ill. 364

1883 WL 10142 (Ill.)

44 Am.Rep. 791

THE WABASH, ST. LOUIS AND PACIFIC RAILWAY COMPANY

v.LOUISA J. SHACKLET, Adm'x.

Supreme Court of Illinois.

Filed at Mt. Vernon Jan. 31, 1883.

OPINION TEXT STARTS HERE

APPEAL from the Appellate Court for the Fourth District;--heard in that court on appeal from the City Court of East St. Louis; the Hon. CHARLES T. WARE, Judge, presiding.

Mr. G. B. BURNETT, and Mr. FRANK W. BURNETT, for the appellant:

The judgment should be reversed because plaintiff's instructions ignore the question of ordinary care by the deceased. Chicago and Northwestern R. R. Co. v. Dimmick, 96 Ill. 42; Chicago, Burlington and Quincy R. R. Co. v. Harwood, 80 Id. 88; Chicago, Burlington and Quincy R. R. Co. v. Payne, 49 Id. 499; Chicago, Burlington and Quincy R. R. Co. v. Lee, 60 Id. 502; Chicago and Northwestern R. R. Co. v. Simonson, 54 Id. 504; Illinois Central R. R. Co. v. Moffit, 67 Id. 431; Illinois Central R. R. Co. v. Herrington, 83 Id. 510; Chicago and Alton R. R. Co. v. Pennell, 94 Id. 42; Wabash Ry. Co. v. Hunt, 91 Id. 406; Chicago Packing Co. v. Tipton, 87 Id. 547; Illinois Linen Co. v. Hough, 91 Id. 63; Stratton v. Central Horse Ry. Co. 95 Id. 25.

As the deceased was a passenger of the transit company, whose negligence contributed to the injury, the plaintiff can not recover from appellant unless the negligence of the transit company was slight in comparison with that of appellant. City of Joliet v. Seward, 86 Ill. 406; Toledo, Wabash and Western Ry. Co. v. Miller, 76 Id. 278; Toledo, Wabash and Western Ry. Co. v. Grable, 88 Id. 443; Lockhart v. Lichtenthaler,46 Pa. St. 151; Lake Shore and Michigan Southern R. R. Co. v. Miller, 25 Mich. 274; Smith v. Smith, 2 Pick. 621; Houfe v. Fulton, 29 Wis. 296; Prideaux v. Mineral Point, 43 Id. 513; Forkstown v. King,84 Pa. St. 230; Payne v. Chicago Ry. Co. 39 Iowa, 525; C. C. & C. R. R. Co. v. Terry, 8 Ohio St. 570; Puterbaugh v. Reason, 9 Id. 484; Brown v. New York Central R. R. Co. 31 Barb. 335; Thorogood v. Bryan, 65 Eng. C. L. 114; Catlin v. Hill, Id. 123; Child v. Hearn,L. R. 9 Exch. 176; Wharton on Negligence, sec. 395; Cooley on Torts, 684, 140.

It was error to instruct the jury that if both companies were negligent, the plaintiff might recover from either. Yeazel v. Alexander, 58 Ill. 254; Chicago and Northwestern Ry. Co. v. Scates, 90 Id. 586; Cooley on Torts, 133, 140; Wharton on Negligence, sec. 395.

Appellee, as foreign administratrix, is not entitled, under the statute, to maintain this action. Hurd's Stat. 1880, chap. 3, sec. 42; People v. Peck, 3 Scam. 118; Judy v. Allington, 11 Ill. 211; City of Chicago v. Major, 18 Id. 349; Illinois Central R. R. Co. v. Cragin, 71 Id. 177.

Mr. WALDO P. JOHNSON, and Mr. M. MILLARD, for the appellee:

There being no doubt as to the defendant's negligence, the giving or refusing of instructions working no injury will not reverse. Andes Ins. Co. v. Fish, 71 Ill. 620; Schwartz v. Schwartz, 26 Id. 81; Ryan et al. v. Donnelly, 71 Id. 101.

Errors in instructions, where the verdict does justice, are no ground for a reversal. Potter v. Potter, 41 Ill. 81; Jarrard v. Harper, 42 Id. 457; Murray v. Haverty, 70 Id. 318; White v. Stanbro, 73 Id. 575; Hall v. Sroufe, 52 Id. 421; Strohm v. Hayes, 70 Id. 41; Hubner v. Feige, 90 Id. 208.

As to whether the negligence of a third party can be imputed to the plaintiff, and defeat a recovery against one whose failure of duty was the proximate cause of the injury, is not beyond dispute. The better doctrine seems to be to limit this rule to cases where there is such a personal relation as fairly to make the plaintiff responsible for the other's conduct. Dyer v. Erie Ry. Co. 71 N. Y. 288; Chapman v. New Haven R. R. Co. 19 Id. 341; Bennett v. New Jersey R. R. Co. 36 N. J. 225; Danville Turnpike Co. v. Stewart, 2 Metc. (Ky.) 119; Louisville R. R. Co. v. Case's Admr. 9 Bush, 728; Shearman & Redfield on Negligence, 48; Wharton on Negligence, sec. 395.

A foreign administrator may maintain the action. Illinois Central R. R. Co. v. Cragin, 71 Ill. 177. Mr. JUSTICE MULKEY delivered the opinion of the Court:

This is an appeal from the Appellate Court for the Fourth District, affirming a judgment of the City Court of East St. Louis, rendered at its August term, 1881, against the Wabash, St. Louis and Pacific Railway Company, the appellant, for the sum of $3500, in an action brought by Eliza J. Shacklet, the appellee, as administratrix of Elijah E. Shacklet, her late husband, to recover damages for injuries received by him in a railway collision, resulting in his death, charged to have been caused by the negligence of the appellant.

The injury complained of occurred in East St. Louis, on a short line of railroad belonging to the St. Louis National Stock Yards, and was caused by a collision of two trains of cars, belonging, respectively, to the appellant and the Union Railway and Transit Company. The road on which the collision occurred connected the stock yards with the various lines of railway running through or terminating at East St. Louis, and was open alike to the free and common use of all railway companies for the purpose of shipping live stock to or from the stock yards. This connecting line of road belonging to the stock yards company consists of two main tracks, connected at or near the stock yards by necessary switches and turn-outs, so that with proper care and precaution collisions between incoming and outgoing trains might readily be avoided. The track on which the collision occurred is called the “wall track,” and the evidence tends to show that trains going in with stock were entitled to the right of way on this track. At the time of the accident the transit company was pulling a train into, and the appellant was pushing one out from, the stock yards on this wall track, both trains being loaded with live stock, but owing to a sharp curve in the track, and some obstructions on the line of the road, those having the trains in charge did not discover their close proximity till it was too late to avoid the collision. Shacklet, at the time, was riding on the engine of the transit company's train, and a number of the cars belonging to it were loaded with his stock.

Kay, a witness on behalf of appellee, in giving an account of the affair, says: “There is a curve in the track going around the sheep house, near the stock yards. Shacklet was sitting right by me on the engine. I jumped off just as the conductor said ‘look out.’ There were six or seven persons riding on the engine. I was standing on the foot-board, and we all jumped off except Shacklet, when we saw the Wabash train backing towards us. The tender of the bridge engine slopes downward, and the men were sitting on this slope on the front end of the tender. I had just time to jump off before the collision. The Wabash train was about fifteen yards from us, backing towards us, when I saw it. The transit train was going about five miles an hour, and the Wabash train pretty lively. The Wabash had about eighteen cars, and was pushing them towards us. Could not see the Wabash train sooner on account of the curve, which is very short, and the sheep house also obstructed the view. The Wabash train was moving about twelve miles an hour when the collision occurred. When the trains came together the car of the Wabash slid upon the sloping end of the transit engine, and caught Shacklet. He lived about twenty minutes. I saw none of the Wabash employés on the train. I saw a stock shipper standing on top of the Wabash train as it came around the curve. He was standing near the end. The transit train was going round to the chutes to unload stock, and the Wabash train was coming from the chutes at the time.”

On the trial of the cause, the court, against the objections of the appellant, gave to the jury, among others, the following instructions:

“3. If the jury believe, from the evidence, that the train of defendant was negligently and carelessly backed on the stock yards track, and that said train collided with an engine and train of the transit company, and Shacklet was rightfully riding on the last mentioned train, on the engine, and his death was caused by said collision, the jury will find for plaintiff, even if they further believe, from the evidence, that there was also negligence on the part of those in charge of the transit train.

4. If the jury believe, from the evidence, that the train of defendant was negligently and carelessly backed on the stock yards track, and that said train collided with an engine of the transit company on the same track, and caused the death of Shacklet, who was rightfully riding on the transit engine, then the jury will find for the plaintiff.”

The giving of these instructions is assigned for error. We are unable to perceive upon what theory they can be sustained, unless the fact of appellee's intestate being carried on the transit company's train in the manner we have seen, as matter of law relieved him from all obligation to exercise ordinary care and diligence to avoid the injury complained of, and we are aware of no authority which sanctions such a position. The declaration in this case expressly alleges that “the said Elijah E. Shacklet was then and there riding on one of the engines and trains of the said Union Railway and Transit Company, along and on said track, with due care and diligence,” etc. The cases are not in accord as to whether the plaintiff was bound to make this averment in order to entitle him to recover. According to many respectable authorities the plaintiff's own negligence is matter of defence, and properly comes from the other side, and hence the plaintiff is not bound to negative it in his declaration; and perhaps this is the better rule, and is more in consonance with the philosophy of pleading and the general analogies of the law. Yet it can not be denied that other respectable authorities maintain the contrary view, and precedents of declarations in cases of this...