Wabash v. Wolff
| Decision Date | 31 May 1883 |
| Citation | 13 Ill.App. 437,13 Bradw. 437 |
| Parties | WABASH, ST. LOUIS AND PACIFIC RAILWAY COMPANYv.HENRY WOLFF. |
| Court | United States Appellate Court of Illinois |
OPINION TEXT STARTS HERE
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; 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.
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 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 in the southwest angle and near the point of intersection of the two roads; that wide platforms extend along its east and north sides and a narrow platform on its west side; that from the point of junction between that on the west and that on the north the latter extends some distance to the west, leaving an open space in their southwesterly angle. These platforms are between three and four feet from the ground.
When the train upon which appellee was a passenger arrived at Chapin, he alighted and went into the waiting room of the station house and made an effort to purchase a ticket on the C. B. & Q. road to Beardstown, supposing that the train for that place would soon arrive. On presentation of a large bill to the ticket seller the latter was unable to make the change, and directed appellee to a place near by, where change could be procured. This required him to go along the north platform, in doing which, he fell into the angle of the two platforms before mentioned, and received the injury complained of. The acts of negligence complained of are a failure on the part of appellant to provide and maintain suitable, proper and safe platforms and guards thereon, and approaches to its station house, or to keep the same properly lighted by night.
There is some evidence tending to show that the station house and platform were owned by the C. B. & Q. company, but this fact can not relieve appellant from the duty of exercising reasonable care to see that all the platforms used by it in common with the former company are reasonably safe for all persons having occasion to use the same in going to or coming from the trains of either company or in transacting their business with the same. This is a duty which both companies owe to the public. While appellee was making preparations to take the C. B. & Q. train he was lawfully on the platform in question, whether he had ceased to be a passenger upon appellant's road and had become one on the C. B. & Q. or not. If a railroad company sets a passenger down upon a platform used by it in common with another company at their intersection, and while such passenger is preparing to take passage on the other road he receives an injury by reason of some carelessness in providing proper safeguards or lights, he is not bound to inquire into the ownership of the platform, but may proceed against the company that brought him there and set him down upon it. We are unable, therefore, to see that appellant has been injured by the modification of the instructions prayed for on its behalf. W. St. L. & P. R'y Co. v. Peyton, 106 Ill. 534.
The instructions given on behalf of appellee are not so satisfactory. The first one is very long and, after telling the jury that if they believe from the evidence that many of the foregoing facts existed, proceeds as follows: “and (if th...
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