Wabash v. Wolff

• Court: United States Appellate Court of Illinois
• Writing for the Court: MCCULLOCH, P. J.
• Citation: 13 Ill.App. 437,13 Bradw. 437
• Decision Date: 31 May 1883
• Parties: WABASH, ST. LOUIS AND PACIFIC RAILWAY COMPANYv.HENRY WOLFF.

13 Ill.App. 437
13 Bradw. 437

WABASH, ST. LOUIS AND PACIFIC RAILWAY COMPANY
v.
HENRY WOLFF.

Appellate Court of Illinois, Third District.

May Term, 1883.

[13 Ill.App. 437]

APPEAL from the Circuit Court of Morgan county; the Hon. C. EPLER, Judge, presiding. Opinion filed September 21, 1882.

Messrs. BROWN, KIRBY & RUSSELL, for appellant; that the relation of passenger and carrier did not exist between the parties at the time of the injury, cited Imhoff v. C. M. R'y Co. 20 Wis. 344; Gordon v. G. St. & N. R. Co. 40 Barb. 546; Gillis v. Penn. R. R. Co. 59 Penn. 129.

If the court assumes to direct the attention of the jury to the facts it should refer them to all the facts, so as to present the case fairly for both parties: C. B. & Q. R. R. Co. v. Griffin, 68 Ill. 499; Evans v. George, 80 Ill. 514.

Instructions should not assume the existence of controverted facts: Russell v. Minteer, 83 Ill. 150; Small v. Brainard, 44 Ill. 355; Bond v. The People, 39 Ill. 26; Steer v. The City, etc., 41 Ia. 353; Siebert v. Leonard, 21 Minn. 442;

[13 Ill.App. 438]

N. J. Life Ins. Co. 94 U. S. 610; Snyder v. The State, 59 Ind. 105; Peck v. Ritchey, 66 Mo. 114.

Where a party manifests his intention to become a passenger, any slight acts of recognition on the part of the company will signify its acceptance of the relation: Gordon v. Grand St. R. R. Co. 40 Barb, 546; Hutchinson on Carriers, §§ 556, 558; Allender v. C. R. I. & P. R'y Co. 37 Ia. 264.

Messrs. KETCHAM & HATFIELD, for appellee; that no motion in arrest of judgment should be entertained after a demurrer to the declaration, cited Edwards v. Blunt, 1 Strang, 426; Cresswell v. Packham, 6 Taunton, 650; 2 Tidd's Practice 917, 855; Rouse v. Peoria Co. 2 Gilm. 99.

Instructions for both parties must be taken together; if they state the law correctly, an error which may appear in one series will be deemed corrected by the other: Lawrence v. Hagerman, 56 Ill. 68; City of Aurora v. Gillett, 56 Ill. 132; Lundt v. Hartmuft, 41 Ill. 9; Walker v. Collier, 37 Ill. 362; Toledo, W. & W. R'y Co. v. Ingraham, 77 Ill. 309; Estey v. Snyder, 41 Ill. 363; Gilchrist v. Gilchrist, 76 Ill. 281; Latham v. Roach, 72 Ill. 179; Murphy v. The People, 37 Ill. 447; Kennedy v. The People, 40 Ill. 488; Howard F. and M. Ins. Co. v. Cornick, 24 Ill. 455; Warren v. Dickson, 27 Ill. 115; Kennedy v. The People, 40 Ill. 488; Morgan v. Peet, 32 Ill. 281; Van Buskirk v. Day, 32 Ill. 281; Durham v. Goodwin, 54 Ill. 469; Warren v. Dickson, 27 Ill. 115.

Where substantial justice has been done, a verdict should not be disturbed for error in instructions: Newkirk v. Cone, 18 Ill. 449; Elam v. Badger, 23 Ill. 498; Kendall v. Brown, 86 Ill. 387; Hiner v. Jeanpert, 65 Ill. 428; New Eng. F. & M. Ins. Co. v. Wetmore, 32 Ill. 221; Parker v. Fisher, 39 Ill. 164; Dishon v. Schorr, 19 Ill. 59.

MCCULLOCH, P. J.

We do not understand this suit to be brought for any breach of duty on the part of appellant toward appellee while the relation of carrier and passenger existed between them. It is true the declaration avers that appellee had, previous to the accident, been a passenger on

[13 Ill.App. 439]

appellant's train from Quincy to Chapin, but this averment we understand to be made only by way of inducement to show that appellee was not a trespasser, but that he was lawfully upon appellant's platform at the time he met with the accident, and that appellant owed him the duty of providing him a safe platform while lawfully there. This being so, it follows that appellant owed him no greater duty than it did to any other person lawfully there in the transaction of business with the company as the operator of a railroad. In such case, the company is only bound to exercise reasonable care in constructing and maintaining its platform in a safe condition. Hutchinson on Carriers, Sec. 553.

The question, therefore, does not arise in the case, whether or not the relation of carrier and passenger had ceased to exist at the time appellee received his injuries, and appellant's instructions prayed for, but refused by the court, were properly refused.

It appears from the evidence that at Chapin, where the injury sued for was received by appellee, appellant's road crosses the Chicago, Burlington and Quincy railroad at nearly right angles; that the station house is occupied in common by both companies, with this exception, that each one has a separate room for the sale of tickets, but the waiting rooms where the passengers receive their tickets are used in common; that this station house is situated...