Williams v. Chicago & A.R. Co.

• Decision Date: 21 January 1891
• Citation: 135 Ill. 491,26 N.E. 661
• Court: Illinois Supreme Court
• Parties: WILLIAMS v. CHICAGO & A. R. CO.

135 Ill. 491

26 N.E. 661

WILLIAMS

v.CHICAGO & A. R. CO.¹

Supreme Court of Illinois.

Jan. 21, 1891.

Error to appellate court, Third district.

Action by Charles A. Williams against the Chicago & Alton Railroad Company for damages for personal injuries. The circuit court sustained a demurrer to the declaration and the appellate court affirmed the judgment. Plaintiff brings error.

Thomas F. Tipton, for plaintiff in error.

Williams & Capen, for defendant in error.

MAGRUDER, J.

This is an action brought in the circuit court of McLean county by the plaintiff in error against the defendant in error to recover damages for a personal injury. The declaration avers that the railroad track of the defendant below crossed a public highway adjoining the farm of one Johnson; that within 80 rods of the crossing there is a curve in the track, and there are timber and other growth on the right of way, by reason of which persons plowing on the farm near the right of way are unable to see a train coming until it is within 200 yards of the crossing; that on April 12, 1889, plaintiff below was plowing on said farm within 30 feet of said right of way, and at a point where the engine and train left the curve and came within view of said crossing; that, in order to give notice to parties working on said land and near the right of way of the approach of a train, it is the duty of the defendant to ring a bell or blow a whistle at least 80 yards before reaching said crossing, and to keep the bell ringing or whistle blowing until the crossing is reached, that persons plowing may stop, and hold their horses; that the defendant wholly failed in its duty in this regard; that the plaintiff, while at work in said field, and in the exercise of due care, could not see the approaching train by reason of the curve, timber, and undergrowth, and, in consequence of such negligence of the defendant, the team used by the plaintiff became scared and whirled around and one of the horses struck the plaintiff, and broke his right thigh, etc. A demurrer was filed to the declaration, which was general, and also set up special causes. The circuit court sustained the demurrer, and entered judgment for the defendant. The appellate court has affirmed the judgment of the circuit court. Inasmuch as the demurrer admits the allegations of the declaration to be true, it is conceded that the defendant was guilty of negligence in not ringing the bell or blowing the whistle at a distance of 80 rods from the crossing. Section 68 of the railroad act (Starr & C. St. c. 114, p. 1935) provides that ‘every railroad corporation shall cause a bell of at least thirty pounds weight and a steam-whistle [to be] placed and kept on each locomotive engine, and shall cause the same to be rung or whistled by the engineer of fireman at the distance of at least eighty roads from the place where the railroad crosses or intersects any public highway, and shall be kept ringing or whistling until such highway is reached.’ Rev. St. Ill. 1889, c. 114, § 54. The first section of the act of February 27, 1869, from which the foregoing provision has been taken after being rewritten and changed, contained the following language, to-wit: ‘And the corporation owning the railroad shall be liable to any party injured for all damages sustained by reason of such neglect.’ Pub. Laws 1869, p. 308. The same language was contained in the thirty-eighth section of the act of November 5, 1849, (Gen. Laws 1849, pp. 31, 32,) but in the revision of 1874 it was omitted, and it is not now a part of the railroad act.

The question presented for our consideration is whether or not the plaintiff has a right of action based upon the negligence of the company in not ringing the bell or blowing the whistle; in other words, did the company owe it as a duty to the plaintiff to comply with the statutory requirement above specified? In order to justify a recovery, it is not sufficient to show that the defendant has neglected some duty or obligation existing at common law or imposed by statute, but that the defendant has neglected a duty or obligation which it owes to him who claims damages for the neglect. O'Donnell v. Railroad Co., 6 R. I. 211. It has been said: ‘However great the defendant's negligence, if it was committed without violating any duty which he owed either directly to the plaintiff or to the public, in a matter whereof he had a right to avail himself, * * * there is nothing which...