Winn v. Cleveland, C., C. & St. L. Ry. Co.

Decision Date09 April 1909
Citation87 N.E. 954,239 Ill. 132
CourtIllinois Supreme Court
PartiesWINN v. CLEVELAND, C., C. & ST. L. RY. CO. et al.


Appeal from Appellate Court, Third District, on Appeal from Circuit Court, Edgar County; E. R. E. Kimbrough, Judge.

Action by Marion F. Winn, as administrator, etc., against the Cleveland, Cincinnati, Chicago & St. Louis Railway Company and others. Judgment for plaintiff affirmed by the Appellate Court, and defendants appeal. Affirmed.George B. Gillespie (L. J. Hackney, R. L. McKinlay, and Hamlin, Fitzgerald & Gillespie, of counsel), for appellants.

F. T. O'Hair (F. W. Dundas and J. E. Dyas, of counsel), for appellee.

This is an appeal by the Cleveland, Cincinnati, Chicago & St. Louis Railway Company and the Cairo, Vincennes & Chicago Railway Company from a judgment of the Appellate Court for the Third district affirming a judgment recovered by Marion F. Winn, as administrator of the estate of James H. Shively, deceased, the appellee, in the circuit court of Edgar county, against appellants, in a suit for damages resulting to the next of kin from the death of appellee's intestate, alleged to have been occasioned by the negligence of appellants in running a train over the Front street crossing in the village of Kansas, in said county, at a high and dangerous rate of speed and at a rate of speed forbidden by an ordinance of the village. To the declaration the general issue was interposed. A trial by jury resulted in a verdict for $5,400 in favor of appellee, upon which judgment was entered by the court after overruling a motion for a new trial.

At close of all the evidence appellants moved the court for a peremptory instruction, which motion was denied.

The accident occurred about 4 o'clock in the afternoon of February 10, 1905, at appellants' railroad crossing over Front street, the principal street in the village of Kansas, a village of about 1,400 inhabitants. Front street extends north and south through about the center of the village, and the appellants' track crosses it and extends through the village in a northeasterly direction from the western boundary, at an angle of perhaps 25 degrees north of east. Located on the western border of the village, on the north side of the railroad track, 1,500 feet from Front street, is a canning factory. On the south side of the track, 850 feet west of Front street, is appellants' depot. On the same side of the track, between the station and Front street crossing, there is located a small coal shed, an elevator 30 feet in height, a small grain office, and a warehouse about 25 feet high and 40 by 80 feet in dimensions. These buildings are separated, some by streets, and none of them are closer together than 20 feet. The warehouse, which is the building farthest to the east, is situated 109 feet southwest of the center of Front street crossing. From a point approximately 27 feet south of the main track over this crossing the main track from the crossing to the depot can be seen, and on the north side of the crossing was a gong, which was operated by electricity by the telegraph operator at the station, and was sounded when a train approached. Immediately south of the warehouse, on the west side of Front street, at distances of 40 and 80 feet, respectively, are two corn pens extending east and west, which are about 8 feet in height. Further south of the crossing a blacksmith shop is located on the west side of Front street. Extending along the south side of the shop is a street which intersects appellants' railway track just west of the station.

The deceased was a farmer, living a few miles north of Kansas on a farm. He was about 60 years of age, and slightly deaf. He was a frequent visitor in the village, and in traveling back and forth his route was over this crossing. On the day of his death he drove a team of young horses to town, hitched to an ordinary farm wagon. It was a cold, windy day, the ground was frozen, and the surface of the streets was somewhat rough. During the afternoon he procured a part of a load of lumber and drove to the blacksmith shop above mentioned to have his team shod. When this job was finished, Shively hitched his team to the wagon, climbed in, and started home. He drove north from the blacksmith shop along Front street toward the railroad crossing. A train which was coming from the west at the time, not intending to stop at Kansas, struck and killed Shively on Front street crossing.

The ordinance relied upon prohibited any company running a passenger train within the village limits at a rate of speed greater than 10 miles per hour.

It is contended by appellants that the circuit court erred (1) in refusing to direct a verdict in favor of defendants, (2) in passing on objections to evidence, (3) in instructing the jury, and (4) in overruling the motion for a new trial.

FARMER, J. (after stating the facts as above).

The principal contention of appellants, and the one to which the greater portion of their brief and argument is devoted, is that the court erred in refusing to direct a verdicton the ground that the evidence did not tend to show that deceased was in the exercise of due care for his safety at the time of the accident, and also that it affirmatively appears from the evidence that deceased was guilty of contributory negligence.

The evidence tends to show that, on account of structures west of Front street and near the railroad track, the view of the track by one approaching the crossing from the south was obstructed, and that not until within 27 feet of the track could a view of it to the west be had for a distance of 800 feet. Deceased hitched his team to his farm wagon, in the bed of which he had a partial load of lumber, at a blacksmith shop about 250 feet south of the crossing, and started to drive north over said crossing. The weather was cold, the wind was blowing, the ground frozen and somewhat rough, and the wagon and lumber therein, which projected beyond the end of the wagon bed a few feet, necessarily made some noise. It is not clear from the evidence whether the deceased was standing on his feet in the wagon from the time he left the blacksmith shop, or whether he was sitting on something. He wore a plush cap, with rolls at the side that could be turned down over the ears. One witness testified that when deceased hitched his team to the wagon at the blacksmith shop the cap was down around his ears pretty well; another, a woman who saw deceased approaching the crossing and saw the accident, testified the cap was pulled down over his ears; a man who was with her at the time testified he thought the cap was pulled down over his ears; and another witness testified to the same thing, but his testimony was to some extent based upon the fact deceased usually wore his cap that way. Deceased was slightly deaf. From the time he left the blacksmith shop until he reached the railroad crossing he did not stop, and no one testified to his doing anything before he reached the crossing to ascertain if a train was approaching. There was testimony that he was looking north as he approached the railroad track. There was testimony that the bell on the engine was ringing from the time the train left Mattoon until it stopped in Kansas after the accident, and a number of witnesses testified to the whistle being sounded 1,500 feet west of Front street crossing, also again at the C., H. & D. crossing 300 feet west of the depot, before the danger signals were given after the engineer had discovered the deceased driving upon the track. There was other testimony of witnesses in a position to have heard them if they had been given that they did not hear them until the danger whistles were sounded, and that at that time the engine was between the depot and the crossing. It is not denied the train was being run at a rate of speed greatly in excess of the rate permitted by the ordinances of the village. A number of witnesses testified that it was running at from 50 to 60 miles per hour. The telegraph operator at the village of Kansas testified that it was his duty to note the time of trains, and that the train that caused the accident ran from Ashmore, 4 1/2 miles west of Kansas, to the village of Kansas in 5 minutes, which would make the rate of speed about 54 miles per hour. There was a warning bell on a post north of the railroad track at the crossing which was operated by electricity from the telegraph office, and a number of witnesses testified to hearing the bell ring just before the accident. These bells were rung by the telegraph operator by push buttons. There were two of these buttons, and each of them rang a bell at two crossings. The operator testified he would push one of the buttons for about five seconds, and then the other one for about the same time, so that each bell was not rung constantly. One witness testified he heard the bell at Front street crossing ring a little while and then stop. The north rail of the switch track was 8 feet from the south rail of the main track. According to estimates of the witnesses, deceased himself was from 10 to 15 feet south of the switch track, which would place him very near the line where he could first get a view of the track to the west when the danger signals were given by the engineer of the train. As deceased drove upon the track he was about 40 feet ahead of a man and woman walking along the sidewalk toward the crossing, and, they having heard the approaching train, the man called to deceased just before the danger signals were given. He testified he did not know whether he called loud or not; that he did not call loud enough for deceased to hear him, while the woman with him testified he hallooed loud. The deceased apparently did not hear him, but immediately after the call the danger signals were given. The horses were going upon the track when the call was made. About the time the danger signals were given, which the...

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