Wabash v. Krough
| Decision Date | 31 May 1883 |
| Citation | 13 Ill.App. 431,13 Bradw. 431 |
| Parties | WABASH, ST. LOUIS AND PACIFIC RAILWAY COMPANYv.SAMUEL KROUGH. |
| Court | United States Appellate Court of Illinois |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of Champaign county; the Hon. C. B. SMITH, Judge, presiding. Opinion filed September 21, 1883.
Mr. J. S. LOTHROP, for appellant; that being a village, appellant was not bound to fence, cited T. W. & W. R'y Co. v. Spangler, 77 Ill. 568; C. & A. R. R. Co. v. Engle, 58 Ill. 381; T. W. & W. R'y Co. v. Chapin, 66 Ill. 504.
Appellant not being bound to fence, is responsible only for gross negligence or wantonness: I. C. R. R. Co. v. Phelps, 29 Ill. 447; I. C. R. R. Co. v. Goodwin, 30 Ill. 117; Great West. R. R. Co. v. Morthland, 30 Ill. 451; G. & C. U. R. R. Co. v. Griffin, 31 Ill. 303.
Persons crossing a railroad track are bound to know that such an undertaking is dangerous, and must take all proper precautions to avoid accident: C. & A. R. R. Co. v. Gretzner, 46 Ill. 74; I. C. R. R. Co. v. Hetherington, 83 Ill. 510; C. & N. W. R'y Co. v. Ryan, 70 Ill. 211; I. C. R. R. Co. v. Goddard, 72 Ill. 567; C. R. I. & P. R'y Co. v. Bell, 70 Ill. 102.
The failure of the boy to use his eyes, is greater negligence than the failure to give the usual signal: St. L. A. & T. H. R. R. Co. v. Manly, 58 Ill. 300; C. B. & Q. R. R. Co. v. Van Patten, 64 Ill. 510; C. B. & Q. R. R. Co. v. Lee, 68 Ill. 576; C. B. & Q. R. R. Co. v. Harwood, 80 Ill. 88.
Parties crossing a railroad track at place other than public crossing take all the risk of injury to themselves: I. C. R. R. Co. v. Hall, 72 Ill. 222; I. C. R. R. Co. v. Hetherington, 83 Ill. 510; I. C. R. R. Co. v. Hammer, 72 Ill. 347; I. C. R. R. Co. v. Godfrey, 71 Ill. 500; L. S. & M. S. R. R. Co. v. Hart, 87 Ill. 529.
As to instructions upon comparative negligence: C. & N. W. R'y Co. v. Coss, 73 Ill. 394; E. St. L. P. & P. Co. v. Hightower, 92 Ill. 139; The President, etc., v. Carter, 2 Bradwell, 34; C. B. & Q. R. R. Co. v. Harwood, 90 Ill. 425; City of Winchester v. Case, 5 Bradwell, 486.
Messrs. GERE & BEARDSLEY, for appellee; as to rate of speed, cited T. W. & W. R'y Co. v. McGinnis, 71 Ill. 346; T. W. & W. R'y Co. v. Miller, 76 Ill. 278; C. & A. R. R. Co. v. Engle, 84 Ill. 397; Wabash R'y Co. v. Henks, 91 Ill. 413; C. & A. R. R. Co. v. Gregory, 58 Ill. 226.
Due allowance must be made for the fact that the boy may not have exercised as good judgment as one older: C. B. & Q. R. R. Co. v. Dewey, 26 Ill. 258; C. & A. R. R. Co. v. Murray, 71 Ill. 601.
A railroad company must use care in approaching places where people are crossing frequently: Butler v. M. & S. R'y Co. 28 Wis. 487; Townley v. C. M. & St. P. R'y Co. 53 Wis. 626.
As to instructions upon reasonable care: T. P. & W. R'y Co. v. Foster, 43 Ill. 415; G. & C. U. R. R. Co. v. Dill, 22 Ill. 264; Great West. R. R. Co. v. Haworth, 39 Ill. 348; C. & A. R. R. Co. v. Pennell, 94 Ill. 455; C. & N. W. R'y Co. v. Donahue, 75 Ill. 106.
This suit was commenced by appellee against appellant to recover the value of a horse killed by one of appellee's freight trains within the limits of the village of Foosland. It appears from the evidence that as the train approached the village the whistle upon the engine was sounded at the usual place, but, there being no occasion for the train to stop at that point, it continued on its way through the village at the rate of from twelve to fifteen miles per hour. Witnesses who saw the horse killed say they heard no bell, but the fireman says he rang the bell all the way through the village until about the time of the accident.
Appellee had gone from home and left his horse in charge of a boy about twelve or thirteen years of age, who, it appears, was a competent person to have charge of it. During the night time the horse got away from appellee's place, east of appellant's track, and in the morning, about six o'clock, was found by the boy in an inclosure west of and adjoining appellant's right of way.
From this inclosure the boy led the horse through a gate, into appellant's right of way some distance south of the station house. There he mounted the horse, and with nothing to guide or control him but a halter, rode north along the fence, to a point about fifty feet south of the station house, where he turned east, and, passing the station house, went upon the railroad track. At this time the incoming train appears to have been about three hundred feet north of him and in full view. The engineer saw him come from behind the station house, and stop upon the track. There is no evidence that the boy actually knew of the approach of the train before attempting to go upon the track, but it seems almost incredible that a train could have been so near him without his knowing it. That he did see the train when he went upon the track is evident from his own statement, made to the section foreman at the time of the accident, as well as from the testimony of both the engineer and the fireman, who testify he stopped upon the track and looked at the approaching train.
When on the track, the boy became alarmed, leaped from the horse, let the halter drop out of his hands, and fled up an embankment for his own safety. The horse then ran south along the track until he encountered a cattle guard at the southern boundary of the village, where he was killed by the train.
The engineer testified that when he saw the boy upon the track, both boy and horse appeared to stand quite a little while looking at the engine; that supposing the boy would go off the track before the engine got to him, he did nothing until he saw him leap from the horse; that then he called for brakes, which were immediately and well applied, but the train could not be stopped in time to save the horse.
The fireman corroborates this statement very fully, and adds to it the further fact, that while the boy was on the track he saw him kick the sides of the horse as though trying to get him to move.
The boy was not examined as a witness upon the trial, but on the morning of the accident he said to the section foreman that as he was crossing the track he saw the train coming and could not get the horse along; that the horse became frightened and he jumped off to save himself.
The foregoing facts appear to be well established by the evidence. There is some controversy as to whether or not there was a public street where the boy attempted to cross the track, but in the view we take of the case we do not deem it necessary to determine that point. Assuming it to have been a public street, does the evidence contained in this record show a right of recovery?
It is no doubt the law that as soon as an engineer has become cognizant of the fact that either person or property is in danger of being injured by his train, or if in the exercise of a proper degree of care and caution he might have become so, it is his duty to do what he can to avoid the injury, and a failure to do so would be negligence on his part, more or less aggravated by the circumstances of the case. Thus, where an engineer saw a...
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