| Ill. | Nov 14, 1885
delivered the opinion of the Court:
This was an action on the case, brought by the appellee, as administratrix, against the. appellant, the Chicago and Atlantic Railway Company, to recover damages for the killing of appellee’s husband by one of the appellant’s trains at a public crossing of Fifty-first street, in the town of Lake, in Cook county. There was no witness of the occurrence. Deceased spent the evening at the store of one Hart, on Fifty-first street, about five blocks east of the appellant’s tracks, and was last seen, before the injury, by Hart, about 12:30 A. M., when deceased left Hart’s store to go to his home west of the track, and started west on Fifty-first street. That street runs east and west, and the railroad crosses it running north and south. There is a sidewalk on each side of Fifty-first street. About half-past one o’clock A. M., deceased was found in a water-closet about four hundred feet west of the tyacks, alive, with only one shoe on. His face and hands were bruised and foot crushed. There was blood all the way from the track and Fifty-first street to this closet. Deceased’s other shoe was found in the morning on the north side of Fifty-first street, wedged in between the track and the boards of the sidewalk.
At the trial, after the plaintiff had introduced all of her evidence and rested, defendant’s counsel moved the court to dismiss the case for want of sufficient evidence to maintain it, and that motion being overruled, evidence was introduced on the part of the defendant, and after all the evidence ivas in, defendant’s counsel again asked the court to instruct the jury that, upon the evidence before them, it was their duty to find a verdict for the defendant. The court refused to so instruct, and these' rulings of the court are assigned as error. Had this instruction been asked at the conclusion of plaintiff’s evidence it should then have been given, as there had been then introduced no evidence of defendant’s negligence, all' the evidence looking in that direction being that of a witness who, at the probable time of the accident, was three or four hundred feet away, and testified that he had no recollection of hearing the whistle or bell. But the testimony introduced by the defendant furnished such evidence tending to show negligence, that it was then, in our opinion, proper for the court to refuse such an instruction, and if so, appellant has no just ground of complaint for either one of the court’s rulings.
Defendant’s testimony showed that about midnight a gravel train came in from the south, and stopped at Fifty-first street. The train was there opened enough to make a cut at the street crossing, and ivas so left cut in two for a while. Twelve or fifteen cars were pulled over the street to the north side, and the others left on the south side. A short time afterward the train was moved north of Fifty-first street to Forty-ninth street, by another engine,—a switch engine,—and put on a side-track there, where the gravel ears were to be unloaded. In doing this, the engineer of the switch engine testified that near midnight he coupled on to the cars of the train which stood north of Fifty-first street,—about twelve or fifteen cars north of Fifty-first street,—pushed them across Fifty-first street against those standing on the south side, coupled them, and pulled them north over Fifty-first street; that there was a headlight on both ends of the switch engine, and the fireman was all the time ringing the bell. Under such evidence introduced by the defendant, the question of negligence could not properly have been taken by the court from the jury, but it should have been submitted to them to say whether, under the circumstances, there was not negligence in thus pushing these cars across Fifty-first street Avithout the taking of more precaution than appears in this case.
It is said there Avas no proof of the exercise of due care by the deceased. It was in evidence that about midnight he started to Avalk home on Fifty-first street,—that he was then sober. The situation of the cars would not lead one to think they Avere suddenly to be moved south across Fifty-first street. These were circumstances from which there might be inference whether or not deceased used due-care. Direct testimony upon the point was not required.
It is insisted there Avas error in allowing the plaintiff to introduce evidence tending to show the ability of the deceased to earn money, there being no averment in the declaration upon that subject. The position is, that it is necessary the declaration should set forth the facts which are relied on to show that the beneficiaries designated by the statute have sustained pecuniary injury by the death of the deceased, and so that there should have been an averment of this particular fact of ability to earn money in order to admit proof of it. The averment in the declaration is, that by the .death of the deceased, plaintiff’s husband, the widow and minors named were deprived of their support, and said minors of their means of education, to the damage of plaintiff, as administratrix, in the sum of $5000. We think this averment was sufficient in the respect of particularity, to admit this particular of evidence objected to.
We do not consider the objections to the instruction given for the plaintiff. as well taken, in its application to the facts of this ease.
The judgment of the Appellate.Court will be affirmed.
Judgment affirmed.