Thompson v. Cleveland, C., C. & St. L. Ry. Co.

• Decision Date: 18 April 1907
• Citation: 226 Ill. 542,80 N.E. 1054
• Court: Illinois Supreme Court
• Parties: THOMPSON v. CLEVELAND, C., C. & ST. L. RY. CO. et al.

226 Ill. 542

80 N.E. 1054

THOMPSON

v.CLEVELAND, C., C. & ST. L. RY. CO. et al.

Supreme Court of Illinois.

April 18, 1907.

Error to Appellate Court, Third District.

Action by A. B. Thompson against the Cleveland, Cincinnati, Chicago & St. Louis Railway Company and others. From a judgment sustaining a demurrer to the complaint affirmed by the Appellate Court (123 Ill. App. 47), plaintiff brings error. Affirmed.F. W. Dundas, for plaintiff in error.

George B. Gillespie (L. J. Hackney, Hamlin & Gillespie, and R. L. McKinlay, of counsel), for defendants in error.

The railroad of the defendants in error crosses a certain public highway in Edgar county. On August 4, 1904, there were no proper cattle guards at this crossing. On said date plaintiff in error was driving a number of calves along the highway. When the calves reached the railroad crossing, they turned and went a few yards along and upon the railroad right of way. Plaintiff in error followed, and was attempting to drive them back to the highway when a train operated by defendants in error approached the crossing at a high rate of speed, without ringing a bell, sounding a whistle, or giving any other signal of its approach. Plaintiff in error did not know of the approach of the train until it was quite near him, when he sought to reach a place of safety at the side of the right of way, but, being old and compelled to move slowly, he was unable to do so, and, while he was attempting to cross a ditch on the right of way in his endeavor to reach a safe place, the locomotive of the train struck one of the calves and hurled it against the plaintiff thereby injuring him to such an extent as to require amputation of one of his legs. Plaintiff in error brought an action of case in the circuit court of Edgar county seeking to recover damages from defendants in error for the injuries so received by him. He filed a declaration containing two counts, each of which sets up the facts above stated. The two counts are alike, except one charges negligence in failing to ring a bell or sound a whistle continuously for 80 rods as the train approached the crossing, as required by statute, and the other charges negligence generally in failing to give any signal or warning of the approach of the train. Both counts allege that except for the negligence of defendants in error in failing to give the proper warning of the approach of the train to the crossing plaintiff in error would have discovered the approaching train in time to have removed himself to a place of safety. The circuit court sustained a general demurrer interposed to the declaration; and, plaintiff in error electing to stand by his declaration, judgment was entered in favor of defendants in error. Plaintiff in error sued out a writ of error from the Appellate Court for the Third District, where the judgment of the circuit court was affirmed. He now brings the cause to this court by writ of error.

SCOTT, C. J. (after stating the facts).

Plaintiff in error was on the right of way of defendants in error, attempting to drive his calves to the highway, when he was injured. The calves had reached the right of way as a result of the negligence of defendants in error in failing to provide legal and proper cattle guards at the crossing. Such...