Union Ry. & Transit Co. v. Shacklet

• Decision Date: 25 January 1887
• Court: Illinois Supreme Court
• Parties: UNION RAILWAY & TRANSIT CO. v. SHACKLET.

119 Ill. 232

10 N.E. 896

UNION RAILWAY & TRANSIT CO.

v.SHACKLET.

Supreme Court of Illinois.

January 25, 1887.

Error to appellate court, Fourth district.

Case by Louisa Shacklet, as administratrix of Elijah E. Shacklet, defendant in error, against the Union Railway & Transit Company, plaintiff in error, to recover damages resulting from the death of said Elijah E. Shacklet, alleged to have been caused by the negligence of the said company.

No single witness testified as to anything else but that the collision was produced by the gross negligence of the Wabash Railroad. When the case by the same plaintiff against the Wabash Railroad was before the supreme court, (105 Ill. 373,) the court say upon the same or even weaker testimony in favor of the present defendants in error, in speaking of the contributory negligence of the Union Railway & Transit Company: ‘Assuming this to be law, we might content ourselves by saying the affirmance of the judgment below [against the Wabash] by the appellate court conclusively negatives the charge of contributory negligence on the part of the transit company.’

It is shown by the testimony that the engine was the only place to ride, and that all stock-men were carried on the tender. It was a mode of travel established by the company itself. In Ohio & M. Ry. v. Muhling, 30 Ill. 9, the court say: ‘Any one lawfully on the train is entitled to all the protection afforded by the obligations of a carrier of passengers.’ In that case a person was riding on a construction train, and was injured. A drover on a stock train is a passenger. Railroad Co. v. Lockwood, 17 Wall. 357;Indianapolis R. Co. v. Horst, 93 U. S. 291. A carrier is bound to do all that human care, vigilance, and foresight can accomplish, consistent with the mode of conveyance, to render a passenger secure. Tuller v. Talbot, 23 Ill. 37;Pittsburg, C. & St. L. Co. v. Thompson, 56 Ill. 138. And in Wabash, etc., R. Co. v. Shacklet, 105 Ill. 372, the court say that while riding on the tender might be regarded as a circumstance showing contributory negligence on the part of Shacklet, ‘if he had any choice in the matter,’ (page 371,) in a suit against that company, yet, ‘ as between him and the carrier company, he had a right to go there in this manner.’

It is claimed the court erred in admitting the letters of administration, but this is also an objection which must be overruled. The point is that an admitted copy of the letters was improperly received as testimony; but there was no issue upon the subject. The defendant did not specially deny that the plaintiff was the administratrix of her husband, and the general issue admitted that fact. Chicago Legal News Co. v. Browne, 103 Ill. 317. And the copy was good evidence, even if it was necessary to establish the plaintiff's representative character. The act of congress does not confine the mode of proving foreign records to a certified copy, as required by its provisions. It simply enacts that, if a copy shall be authenticated in a prescribed manner, the courts must give it full faith and credit; but, if admitted without that proof, there can be no objection. See 1 Greenl. Ev. § 505.G. & G. A. Koerner

, for plaintiff in error.

M. Millard, for defendant in error.

MULKEY, J.

In the month of September, 1879, Elijah E. Shacklet, the plaintiff's intestate, and his brother Absalom Shacklet, who were shippers and dealers in stock, shipped four car-loads of cattle, by way of the Missouri Pacific Railroad, from Dresden, Missouri, to the National Stock-yards, in East St. Louis. The Missouri Pacific Railroad Company gave through bills of lading for the stock, and stock passes to the shippers. There was a caboose attached to the Missouri Pacific train, in which the Shacklets rode until they reached the Union depot in St. Louis, where they were told to change cars. The cars containing the cattle were then detached from the Missouri Pacific train, and turned over to the Union Railway Transit Company, to be taken by it to the National Stock-yards, in East St. Louis. The train of the transit company, in which the detached cars were placed for this purpose, had on this occasion no caboose attached to it for the accommodation of shippers, though the evidence shows a caboose car was sometimes provided for this purpose. The deceased and his brother, finding no caboose attached to the train, took positions on the top of one of the stock cars preparatory to starting. This being observed by one of the employes of the transit company, they were directed by him to get down, and go to the engine. On attempting to get in the cab on the engine, they were ordered by the engineer to take a place in front on the engine. This being the only place provided for them, they accordingly did so. Being carried in this manner, they passed through the tunnel over into East St. Louis, and were proceeding on their way to the stockyards, when suddenly, while rounding a sharp curve in the track, and almost at the end of their destination, the train carrying them collided with another belonging to the Wabash, St. Louis & Pacific Railway Company, which at the time was being rapidly backed out from the stock-yards.

The front of the tender or engine upon which the parties were riding being sloping and wedge shaped, the rear car of the Wabash train was forced in the collision up the tender, catching the plaintiff's intestate between it and the car, and inflicting upon him serious injuries, from which he died in a few minutes thereafter. Shacklet, at the time of his death, was a resident of Pettis county, Missouri. He died intestate, leaving the defendant in error, his widow, and three minor children. The defendant in error, having just taken out letters of administration on her husband's estate at the place of his domicile in Missouri, brought the present action in the city court of East St. Louis against the appellant to recover damages for the death of her husband, which she alleges was caused by the latter's negligence. The trial resulted in a judgment of $5,000 for the plaintiff, which was subsequently affirmed by the appellate court for the Fourth district. The company brings the case here for review. The accident which caused the death of Shacklet occurred on a short line of railway belonging to the National Stock-yards, and connecting the various roads passing through and terminating at East St. Louis with the stock-yards, and was used exclusively for transferring and carrying stock to and from the stock-yards. It was open alike to all the owners and operators of railways having occasion to use it for such purpose.

The substance of the charge of negligence in the declaration, shortly stated, is that at the time of the collision the defendant was operating its train without having first ascertained whether or not the track was obstructed by other trains. Whether this charge was proved or not, of course was a question for the appellate court, and not for this. Yet, for the purpose of passing upon the plaintiff's first instruction, it is proper to advert to some of the evidence, as it is claimed there is no evidence upon which to base it. The instruction is as follows: ‘(1) The jury are instructed that, if it appears from the testimony the defendant company was guilty of negligence which materially contributed to the injury complained of, and that the said Elijah E. Shacklet was exercising due care, the plaintiff is entitled to recover, although the Wabash Company may have also been guilty of negligence in causing the death of the plaintiff's husband.’

Notwithstanding the very sweeping assertion of counsel for plaintiff in error that the collision in question was produced by the Wabash, without the slightest fault on the part of the Union Transit Company, we feel constrained to say that, after a very careful examination of the record, we fail to find the statement verified by the evidence. For instance, Mr. Dorsey, the very first witness examined, in giving an account of the affair, says: ‘Mr. Shacklet was sitting on the tender of the transit company, and there was a...