Zetsche v. Chicago, P. & St. L. Ry. Co.

• Decision Date: 19 February 1909
• Citation: 238 Ill. 240,87 N.E. 412
• Court: Illinois Supreme Court
• Parties: ZETSCHE v. CHICAGO, P. & ST. L. RY. CO.

238 Ill. 240

87 N.E. 412

ZETSCHE

v.CHICAGO, P. & ST. L. RY. CO.

Supreme Court of Illinois.

Feb. 19, 1909.

Appeal from Appellate Court, Fourth District, on Appeal from City Court of East St. Louis; W. J. N. Mayers, Judge.

Action by Lucy C. Zetsche, administratrix, against the Chicago, Peoria & St. Louis Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.Nelson, Warren & Child (C. E. Pope, of counsel), for appellant.

F. C. Smith and M. Millard, for appellee.

This is an appeal by the Chicago, Peoria & St. Louis Railway Company from a judgment of the Appellate Court for the Fourth District affirming a judgment for the sum of $6,500 recovered by Lucy C. Zetsche, administratrix of the estate of Hezekiah P. Zetsche, deceased, the appellee, in the city court of East St. Louis, for damages occasioned by the death of appellee's intestate, alleged to have been caused through the negligence of appellant.

The declaration consists of three counts. The first charges the defendant with the negligent operation of an engine and a train of cars in the control of its employés, whereby the deceased, who was driving along a public highway over the track on which said train was being moved, in the exercise of due care, was struck and received injuries from which he died. The second count charges the defendant with the failure to ring a bell or sound a whistle while approaching the said crossing, as required by statute; and the third alleges negligence in failing to have a brakeman or lookout stationed upon the front end of the train, which was being pushed by an engine from the rear. To the declaration the general issue was filed.

The accident occurred during the afternoon of August 17, 1906, at the crossing of appellant's track over a public highway known as ‘Brooklyn road,’ a few miles from East St. Louis. The railway track was laid on a grade several feet above the surface of the surrounding country. The highway was also graded up in like manner. The highway runs southeast and northwest. The track of appellant at the intersection runs almost due north and south. Deceased was traveling southeast in a wagon. He was driving, and his horses were moving at a walk. The train which struck him was running south. The evidence relative to its rate of speed is very conflicting. The appellee's witnesses say it was running 15 or 20 miles an hour; the appellant's, that the rate was much less. The lines upon which the train and the wagon were moving intersected each other, formingan angle of about 45 degrees, and the accident occurred at the apex of this angle. As the deceased approached the intersection the train came from his left and somewhat from behind him. He could not have seen it by looking at right angles to the line upon which he was traveling until it was within a few feet of him. Two witnesses testify that before he drove upon the crossing he stopped and looked both ways along the railroad track to see whether there was a train approaching, and after so doing he drove upon the crossing. One of the witnesses fixes the point at which he so stopped at about 50 feet from the crossing; the other states that the deceased stopped and looked ‘just before’ he drove upon the crossing. As he approached that crossing there was to his left and on the west side of the track upon which the train which struck him ran a side track owned by appellant, on the same level with its main track. The side track left the main track at a point north of the wagon road and ran in a northerly direction. There is evidence which shows that 10 or 12 box cars were standing on that side track. The evidence of appellee's witnesses is that the one of these cars that was farthest south was distant from the intersection of the highway and the railroad track 150 feet, that being, according to these witnesses, the nearest point to the intersection at which a box car on the side track would be safely cleared by a train passing on the main track. It is the theory of appellee that the cars so standing on the side track obstructed the view of the deceased when he looked to his left so that he failed to see the approaching train, which consisted of 9 coal cars, a box car, and an engine. The cars were pushed from the rear by an engine, and the box car was next the engine. By the force of the collision Zetsche was thrown from the wagon and received the injuries which resulted in his death.

At the close of all the evidence the motion of appellant for a directed verdict was denied, and the action of the court in this regard has been assigned as error. Appellant also insists that the court erred in passing on evidence and in instructing the jury.

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

The appellee argues that the question whether the trial judge should have directed a verdict cannot be considered here, for the reason that it was not raised in the Appellate Court. We have examined the certified copy of the brief filed in the Appellate Court by the appellant, and think this objection made by the appellee without merit.

Counsel for the appellant state by their brief, filed in this court, ‘there was some statements of witnesses in this case which, if taken alone, might justify this court in concluding that there was some evidence tending to support the appellee's cause of action’; but counsel say that it was physically impossible that these statements could have been true, and that they should therefore be rejected, and that if they be so rejected there is no evidence in this case which tends to show that the deceased was in...