114 Ill. App. 501 | Ill. App. Ct. | 1904
delivered the opinion of the court.
The declaration alleged that defendant owned, operated and possessed the railroad tracks upon which the engine ran which killed Curran. Appellant insists that as the evidence shows only that appellant was in the possession of and operating said tracks, but not that it was the owner of them, the judgment must be reversed. We do not think that the plaintiff was bound to prove ownership of appellant, although it was as averred, but that proof of possession and operation of the tracks was sufficient.
The declaration charged inter alia, as negligence, the failure of the flagman of defendant to warn the deceased of the approach of the train. 1c appears from, the evidence that on the day of the accident there were, and for a long time before, had been, upon the crossing two flagmen, and the station of one of them was and had been on the north side of the tracks. It is contended that this flagman was not the servant of the appellant and therefore his negligence, if he was negligent, was not the negligence of appellant. We think the evidence sufficient to show that this flagman was the servant of appellant, and appellant offered no evidence to show that he was not its servant. “Weak evidence becomes strong by the neglect of the party against whom it is put in, in- not showing by means within the easy control of that party, that the conclusion drawn from such evidence is untrue.” P., Ft. W. & C. Ry. Co. v. Callaghan, 50 Ill. App. 681. This flagman testified that at the time of the accident he stood between the first and second main tracks just east of the center of Western avenue; that he had a flag in his hand but was looking south; did not see Curran approaching, and made no effort to warn him of the coming train; there was no gate at the crossing. At the time of day that Curran was killed sixty trains per hour passed over the crossing, three-fourths of them on the four northern main tracks. From this and other evidence in the record, we think the jury were warranted in finding that the failure of the flagman to warn Curran of the approach of the train was negligence of the appellant which contributed to the injury and death of Patrick Curran.
The question remains whether the deceased was guilty of contributory negligence. Whether the failure of one about to cross a railroad track, to look and listen for an approaching car or train, amounts to and is negligence, depends upon the facts, conditions and circumstances. In Boyle v. I. C. R. R. Co., 88 Ill. App. 255, we said (p. 260): “ While a failure to look if a train is approaching is not in law negligence per se, it is negligence in fact, if there are no conditions or circumstances which excuse such looking. And a jury without evidence of the conditions or circumstances which excuse looking, when looking would disclose the danger, is not warranted in finding that such failure to look is not negligence.” The verdict involves a finding that the deceased exercised ordinary care, and that finding involves a finding, that in the facts, conditions and circumstances shown by the evidence the jury might properly find sufficient excuse for the failure of the deceased to look or listen for a coming train before going upon the track. The flagman who was on the north side of the crossing on the day of the accident had been stationed there for years and during that time the deceased had passed over the crossing several times a day and was familiar with the custom of the flagman to give notice of approaching trains. When the deceased came to the crossing, the flagman was at his post, with his flag in his hand,, and we think deceased had quite as much right to rely upon the presence of the flagman and his failure to warn him of an approaching train, as a notice to him that no train was close at hand, and as an invitation to make the crossing in safety so far as an approaching train was concerned, as the plaintiff in C. & A. R. R. Co. v. Redmond, 70 Ill. App. 119, had to rely upon open crossing-gates as such notice and invitation. C., R. I. & P. Ry. Co. v. Clough, 134 Ill. 586; C., C., C. & St. L. R. R. Co. v. Bruce, Ad., 63 Ill. App. 233; St. L., V. & T. H. R. R. Co. v. Dunn, Ad., 78 Ill. 200; C. & A. R. R. Co. v. Lewandowski, 190 Ill. 301.
A short time before the accident, probably while the deceased was near the watch house, a Burlington train passed over the crossing on the first main track, crossed on the switch to the second main track and passed north on that track. The Illinois Central train crossed from the third to the second main track on a switch just south of the one over which the Burlington train crossed from the first to the second main track and then went south on the second main track, the same track the Burlington train went north on. About the same time a Baltimore and Ohio train passed north over the crossing on a track farther south. The second main track ran only a little east of south; the deceased was walking south and so the Illinois Central train came practically from behind Mm as it approached the crossing. Ho doubt if he had looked to the north and west just before he went upon the second main track and after the Illinois Central train had left the third track to cross over to the second, he would have seen the danger, but we cannot say under the evidence in this record, that the jury were not warranted in finding in the facts, conditions and circumstances, sufficient excuse for the failure of the deceased to look or listen before going upon the track where he lost his life.
The judgment of the Superior Court will be affirmed.
Affirmed.