The Wabash v. Wallace

• Decision Date: 19 May 1884
• Citation: 110 Ill. 114,1884 WL 9857
• Parties: THE WABASH, ST. LOUIS AND PACIFIC RAILWAY COMPANYv.THOMAS WALLACE.
• Court: Illinois Supreme Court

110 Ill. 114

1884 WL 9857 (Ill.)

THE WABASH, ST. LOUIS AND PACIFIC RAILWAY COMPANY

v.THOMAS WALLACE.

Supreme Court of Illinois.

Filed at Ottawa May 19, 1884.

APPEAL from the Appellate Court for the Second District;--heard in that court on appeal from the Circuit Court of Will county; the Hon. FRANCIS GOODSPEED, Judge, presiding. Messrs. SLEEPER & WHITON, for the appellant:

Under the circumstances of this case the engineer and fireman were not required to slow up the train when they saw the plaintiff approaching the crossing, having a right to infer that as a man of ordinary sense he would not venture upon the track. The authorities supporting our views are numerous: Railroad Co. v. Jones, 76 Ill. 311; Railroad Co. v. Jacobs, 63 Id. 178; Railroad Co. v. Austin, 69 Id. 426; Railroad Co. v. Manly, 58 Id. 300; Railroad Co. v. Sweeney, 52 Id. 325; Railroad Co. v. Van Patten, 64 Id. 510; Railroad Co. v. Bell, 70 Id. 102; Railroad Co. v. Godfrey, 71 Id. 500; Railroad Co. v. Goddard, 72 Id. 567; Railroad Co. v. Harwood, 80 Id. 88; Burling v. Railroad Co. 85 Id. 18; Railroad Co. v. Damerell, 81 Id. 450; Railroad Co. v. Dimmick, 96 Id. 47. See, also, cases cited in Thompson on Negligence, 426.

If the jury believed the testimony of Handy and Manypenny as to the ringing of the bell, then there was no possible ground of recovery by the plaintiff. They were not at liberty to disregard this testimony, and believe the simple negative, uncorroborated testimony of the plaintiff himself, that he did not hear the bell. Edler v. Achtman, 10 Bradw. 488; Haycroft v. Davis, 49 Ill. 455; Hartford Life Ins. Co. v. Gray, 80 Id. 28; Evans v. George, Id. 51.

To recover, the plaintiff must have exercised ordinary care, such as a reasonably prudent person always will adopt for the security of his person. Railroad Co. v. Lee, 68 Ill. 580; Railroad Co. v. Johnson, 103 Id. 521.

The rule of comparative negligence laid down in the fourth instruction does not conform to the law as declared in Railroad Co. v. Dimmick, 96 Ill. 47, and Railroad Co. v. Johnson, 103 Id. 524. The want of ordinary care is fatal to a recovery, no matter how gross the negligence of the defendant may have been.

The seventh instruction completely ignores the necessity of due care on the part of the plaintiff, and attempts to substitute in its place only slight negligence, which is a very different thing. Railroad Co. v. Harwood, 80 Ill. 88; Railroad Co. v. Johnson, 103 Id. 512.

Mr. C. W. BROWN, and Mr. F. BENNETT, for the appellee:

The fourth instruction comes squarely within the rule of comparative negligence, drawn even as closely as it is. ( Railroad Co. v. Johnson, 103 Ill. 524.) It avoids the very error complained of in that case, by not asking the jury to determine whether or not plaintiff's negligence was slight, as compared with negligence of defendant.

It is sufficient to say in reference to the criticism upon the seventh instruction, that it is precisely in the language that has been approved twice by the Supreme Court. Chicago, Burlington and Quincy R. R. Co. v. Triplett, 38 Ill. 483; Chicago and Alton R. R. Co. v. Elmore, 67 Id. 178.

Mr. JUSTICE WALKER delivered the opinion of the Court:

This was an action on the case, instituted by appellee, Wallace, against appellant, to recover for injuries claimed to have been inflicted by the servants of appellant, in the negligent management of a train on its railroad. There were three counts in the declaration, in which it was averred that appellant's servants drove an engine and train on its road over the crossing of a highway so negligently that appellee was struck and injured, and his horse was damaged; that no whistle was sounded or bell rung, as required by statute, nor was there the sign required by the statute placed at the crossing; also, that the company had negligently permitted high piles of dirt and other substances to remain on its right of way, so as to obstruct the view of an approaching train on the railroad, whereby appellee and his horse were struck and injured. On a trial in the circuit court the jury found a verdict in favor of appellant for $1150. A motion for a new trial was entered and overruled, and judgment rendered on the verdict. An appeal was perfected to the Appellate Court for the Second District, where, on a hearing, the judgment was affirmed, and the company brings the case to this court by appeal.

The facts are settled by the findings of the circuit and Appellate courts, and we are relieved from their consideration, further than as they are a basis for the rulings of the court in trying the cause. We shall examine some of the objections urged against such rulings.

Objections are urged against the appellee's seventh instruction. It is this:

“The jury are instructed that if they believe, from the evidence, that a bell was not rung, or a steam whistle sounded, at a distance of eighty rods from the crossing of said defendant's railroad across said north and south highway, and kept ringing or whistling until the crossing was reached, and the plaintiff was lulled into security by reason of such neglect on the part of the defendant, then the plaintiff would have the right to recover for any injury caused thereby, even though he was guilty of slight negligence.”

Appellee cites in support of this instruction the case of Chicago and Alton R. R. Co. v. Elmore, 67 Ill. 178, and it seems to support the rule contained in the instruction. But the rule has been disregarded in subsequent cases. The cases of Chicago, Burlington and Quincy R. R. Co. v. Harwood, 80 Ill. 88, and Chicago, Burlington and Quincy R. R....