Wabash v. Weisbeck

• Decision Date: 28 February 1884
• Court: United States Appellate Court of Illinois
• Parties: WABASH, ST. LOUIS & PACIFIC RAILWAY CO.v.MARIA WEISBECK, Adm'x, etc.

14 Ill.App. 525

14 Bradw. 525

WABASH, ST. LOUIS & PACIFIC RAILWAY CO.

v.MARIA WEISBECK, Adm'x, etc.

Appellate Court of Illinois, Fourth District.

February Term, 1884.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Madison county; the Hon. WILLIAM H. SNYDER, Judge, presiding. Opinion filed April 18, 1884.

Mr. G. B. BURNETT, for appellant; that under the facts in this case, the negligence of deceased was such as to preclude a recovery even if the negligence of defendant was gross, cited C. & R. I. R. R. Co. v. Still, 19 Ill. 499; I. C. R. R. Co. v. Buckner, 28 Ill. 299; C. & R. I. R. R. Co. v. McKean, 40 Ill. 218; Gretzner's case, 46 Ill. 74; T. P. & W. Ry. Co. v. Riley, 47 Ill. 514; C. & N. W. Ry. Co. v. Sweeney, 52 Ill. 326; Manly's case, 58 Ill. 300; C., B. & Q. R. R. Co. v. Lee, 60 Ill. 501; C. & A. R. R. Co. v. Jacobs, 63 Ill. 178; C., B. & Q. R. R. Co. v. Notzki, 66 Ill. 455; C., B. & Q. R. R. Co. v. Lee, 68 Ill. 576; Bell's case, 70 Ill. 102; I. C. R. R. Co. v. Godfrey, 71 Ill. 500; I. C. R. R. Co. v. Hall, 72 Ill. 222; Ill. Cent. R. R. Co. v. Goddard, 72 Ill. 567; C., B. & Q. R. R. v. Van Patton, 74 Ill. 91; T. W. & W. R. R. v. Jones, 76 Ill. 312; C. & N. W. Ry. Co. v. Hatch, 79 Ill. 137; R. R. I. & St. L. R. R. Co. v. Byam, 80 Ill. 528; C., B. & Q. R. R. Co. v. Harwood, 80 Ill. 88; C., B. & Q. R. R. Co. v. Damerell, 81 Ill. 450; I. C. R. R. Co. v. Hetherington, 83 Ill. 510; L. S. &. M. S. Ry. v. Hart, 87 Ill. 529; I. & St. L. R. R. Co. v. Evans, 88 Ill. 63; C., B. & Q. R. R. Co. v. Harwood, 90 Ill. 425; C. & N. W. Ry. Co. v. Dimick, 96 Ill. 42.

Messrs. HAPPY & TRAVOUS, for appellee; that a person about to cross a track has a right to suppose the railroad company will conform the speed of trains to the ordinance, cited Correll v. B., C. R. & M. R. R. Co., 38 Ia. 120; St. L., V. & T. H. R. R. Co. v. Dunn, 78 Ill. 197; P. C. & St. L. Ry. Co. v. Knutson, 69 Ill. 103; C. & A. R. R. Co. v. Engle, 84 Ill. 397; Wabash Ry. Co. v. Henks, 91 Ill. 412.

It is for the jury to determine whether the intoxication contributed to the injury, and if it did not it is of no importance and should have no weight in the case: Camp v. Wood, 76 N. T. 72; Ridley v. Lamb, 10 U. C. Q. B. 354; Ohagan v. Dillon, 42 N. Y. 456; Frazier v. Reinler, 2 Hun, 514; Ditchett v. R. R. Co., 5 Hun, 165; Healy v. Mayor, 3 Hun, 708; Stuart v. Machias Post, 48 Me. 477; Maguire v. R. R. Co., 115 Mass. 239.

WALL, P. J.

The assignment of errors presents a number of questions as to the ruling of the court in admitting evidence, giving, refusing and modifying instructions, as well as to the merits of the case. After a careful examination we have thought it best only to determine whether there is a cause of action, and as there is no substantial conflict upon the main essential features of the case, we find no difficulty in reaching a conclusion. The train was running through the village of Venice faster than was allowed by the ordinance, which was ten miles per hour. The rate of speed being variously estimated from twelve to twenty-five miles per hour. The proper signal by sounding the whistle was given, and the bell was rung continuously for half a mile before reaching the crossing where the collision occurred.

A person going west along the rock road using ordinary care, could have seen and heard the train a considerable distance before reaching this crossing, though at a point quite near the track the view south is obstructed by buildings.

This condition of things and the fact that must have been known to deceased, that at this hour through trains on this and two other roads were in the habit of passing at the full rate of speed allowed by ordinance, made it especially incumbent upon him to exercise care when about to cross the track. It is apparent, however, he did not discover the train until he had passed these buildings and was within 25 feet of the track, the train being 125 feet from the crossing. At this moment the engineer, perceiving the deceased, gave two sharp sounds of the whistle, whereupon the deceased, who was then moving slowly, began whipping his horses, passed rapidly upon the track, was struck by the engine and killed.

It is urged by counsel for appellee that the deceased was supposed to know the rate of speed which the train might lawfully use, and that he had a right to presume it would go no faster, and that he might calculate the distance, and if he saw that the train was at such a distance from the crossing that going at the proper rate of speed it would not get there before he could, and acting upon such calculation he attempted to drive over, and by reason of the unlawful speed at which the train was going he was caught, then the defendant company would be liable.

Ordinarily one may presume that another will observe the law regulating his conduct and may act accordingly, and there may be cases where a person crossing a railroad track when he knows a train is coming may rely upon the presumption and be guilty of no, or only slight negligence, but this must depend upon circumstances and can not be permitted when the calculation must necessarily be made with such nicety that the variation of a few seconds or the mistake of a few feet would inevitably be attended with fatal results, nor when it was evident that the train was in fact going much faster than allowed by ordinance.

The law does not permit one to speculate in this way even with his own life, and if he does so and loses, the loss is his own. In the present instance, the train being 125 feet from the crossing would reach it in about eight seconds if going at the lawful rate, and if we assume the deceased to have calculated that by suddenly increasing his speed he could reach the track in five or six seconds, thus having two or three seconds to spare, yet if he calculated at all in this way he must have seen that the slightest error as to the distance, the speed of the train, or the nerve and speed of his team would certainly cost him his life. This theory of counsel permits him to ignore the palpable fact, and the main fact on which reliance is had for a recovery that the train was going faster than the assumed rate of speed. If one in such a situation can see that the speed is greater than lawful, he must act accordingly, and may not blindly calculate upon a fact which in the exercise of ordinary care he can perceive does not exist. We learn the rate of speed in this instance from the opinions of persons who were observing the train; how can we permit him to omit the duty of making the same observation when he was so near it, and had so much at stake?

It seems to us that it must be regarded as gross negligence to attempt to cross a track in front of a train under the circumstances as...