143 Ill. 48 | Ill. | 1892
delivered the opinion of the Court:
On Kinzie street, in Chicago, immediately east of Diller street, were four parallel main railroad tracks, the two north tracks operated by the Northwestern Eailway Company and the two south tracks used jointly by the Pittsburg, Cincinnati and St. Louis Railroad Company and the appellant company. At and just west of Diller street the two tracks of appellant left said joint tracks, and crossed the Northwestern tracks between Diller street and Western avenue, and then ran northwest across Weston avenue. There were switches at the junctions of appellant’s tracks with said joint tracks, and the deceased, who was an employe of the Pittsburg, Cincinnati and St. Louis company, was the switchman in charge of said switches. North of the Northwestern tracks, and at the intersection of said tracks with the tracks of appellant, was a semaphore stationed there for the purpose of controlling said crossing. South of the tracks and east of the switches was the switch shanty, where was kept a record of all trains passing over the tracks. At about five o’clock in the morning of April 7, 1882, the switches leading from the joint main tracks to appellant’s tracks were set against appellant’s tracks and straight for the tracks of the Pittsburg, Cincinnati and St. Louis Co., and the semaphore at the Northwestern crossing was set for the Northwestern to use its own tracks. Two engines of appellant, No. 537 and No. 244, were proceeding west on the south joint track, and came to a full stop,—No. 537 to the west of the shanty and No. 244 at a point some fifty or sixty feet to the east of it,—and a long Northwestern freight train was passing east on the Northwestern tracks. "When the engines stopped on the south track, one Tate, an employe of appellant, threw the switch so that said engines could proceed across the Northwestern tracks, and as soon as the Northwestern train had passed the crossing the semaphore was thrown for the tracks of appellant, and No. 537 proceeded on through the switch and across the Northwestern tracks. During the time of these transactions the deceased was in the switch shanty, and immediately thereafter left it, with a lantern under his arm, and started upon and across the south track in order to get at the switch. While he was so going towards the switch, engine No. 244 started, and, as the evidence tends to prove, with the windows of the cab down, without blowing a whistle or ringing a bell, and with no one looking ahead, and came up behind the deceased and ran over him and killed him.
Upon the cross-examination of Guy.Woolston, a witness for appellee, he stated that engine No. 244 was standing on the track some forty or fifty feet east of the switch shanty, with her cylinder cock open and blowing off steam, and he was then asked whether the deceased could have heard it, but the court sustained an objection to such question. We think there was no error in this. It does not appear that the witness was either in or near the shanty, and the jury was just as capable of drawing a conclusion whether or not the deceased heard the steam escaping as the witness. So, also, said witness stated that the switch shanty was some sixty or seventy feet east of the switch, and that the engine went about one hundred feet .before it struck deceased, and that from the time it started there was no obstruction between it and deceased; that he, the witness, was about fifty or sixty feet north and east of the place where the deceased was killed, and that it was daylight, and he could see the accident perfectly plainly. An objection was then sustained to a question whether deceased could have seen the engine if he had looked. It was simply a matter of common observation, and we think it would not have been improper to have allowed the question to be answered. At the same time, it was not error to sustain the objection, and leave it to the jury to draw the proper conclusion from the facts stated. In other words, it was a matter within the sound legal discretion of the court which course of examination should he pursued. Besides this, the witness had already stated in his cross-examination, “It was daylight enough so that the boy could see the engine perfectly plainly.”
There was no error in permitting appellee to prove that it was a rule and regulation of the Pittsburg, Cincinnati and St. Louis Bailroad Company, or Pan Handle road, in regard to’ the switch iu.question, that no one should have the right to turn said switch except the switch-tender; that it was the duty of the switch-tender to turn the switches at that locality and give signals to approaching trains, and that it was the duty of employes in control of engines to stop and wait until the switch-tender gave a signal to go ahead. The tracks east of the switch were joint tracks, but the switch was in charge of the Pan Handle company, and the deceased was an employe of said company. Evidence of said rule and regulation, and of the usual and customary mode of running trains there, was clearly admissible for the purpose of shedding light on the conduct of the deceased at the time he was killed, and as bearing on the averment of his exercise of ordinary care and diligence, —and this regardless of any questioh whether appellant had any such rule or regulation in regard to said crossing, or its employes in charge of trains were notified of the existence of such rule of the Pan Handle company.
The third instruction given for appellee is challenged. If it was an instruction that purported to state hypothetically the elements necessary to constitute a cause of action it would manifestly be °bad, for it omits the requirement of ordinary care, wholly ignores the question of contributory negligence,, and does not even require the jury to find that the negligence complained of resulted in the death of the deceased. It is not, however, an instruction of that kind, but relates merely to the measure of damages in the event a legal right of recovery is shown. The declaration alleges the negligent acts of appellant, that the death of the intestate was caused thereby, and that said intestate, at the time he was killed, was in the exercise of due care. The court instructed the jury, that if they believed, from the evidence, that the plaintiff had made out his case as laid in his declaration, then they should find for the plaintiff. This imposed upon the plaintiff the burden <of establishing all three of the elements necessary to eonstitute the cause of action,—the negligence, the consequent death, and ordinary care on the part of the deceased. Then followed the instruction in question in regard to the damages to be assessed, if the jury found the defendant guilty as charged in the declaration. The instruction is almost identical with those passed on by this court in Chicago, Burlington & Quincy Railroad Co. v. Payne, 59 Ill. 534, in Chicago, Milwaukee & St. Paul Railway Co. v. Dowd, 115 id. 659, and in Pennsylvania Co. v. Marshall, 119 id. 399, and in all three of said cases held to be an instruction not to be regarded as one stating the law in regard to negligence, but simply, as one relating to the measure of damages in case the plaintiff should recover, and also held not to be erroneous. The only difference between the instructions involved in those cases and that now at bar is, that here the fact of the death of the intestate ‘was caused by the negligence is not stated in the instruction,— which makes it still more plain that it was not the office of the instruction to lay down any hypothesis that would be the basis of a right of recovery in the administrator of the deceased.
The cases of Rolling Mill Co. v. Morrisey, 111 Ill. 646, and Chicago & Alton Railroad Co. v. Murray, 62 id. 326, cited by appellant, are plainly distinguishable from this, since the instructions in each of those cases purported to state the facts which would show a right of action; and Chicago, Burlington & Quincy Railroad Co. v. Harwood, 80 Ill. 88, and Chicago & Northwestern Railway Co. v. Dimick, 96 id. 42, were sufficiently considered and commented on in the Marshall case.
We are wholly unable to surmise any good or sufficient reason that the trial court could have had for eliminating from instruction 3, asked by appellant, the clause, “even if you should also find that the defendant was guilty of some act or acts of negligence as charged in the declaration.” We think the instruction might well have been given in the form in which it was when submitted to the consideration of the court. But, striking out said clause did not constitute reversible error. It did not change the meaning of the instruction, or narrow it. As given it gave all the law of the case that was favorable to appellant strongly and forcibly, and the matter that was contained in the clause that was stricken out was contained in the instruction as it was read to the jury, by necessary implication, and in our opinion could not possibly have been understood otherwise.
Instruction 4, asked for appellant, was argumentative, and ignored the fact that engine No. 244 was standing still on the track east of the switch shanty when the deceased first got on the track and started to go to the switch, and is not based on the evidence in its suggestion that deceased carelessly and negligently stepped upon the track in front of an approaching engine. Besides this, the legal principle upon which it was based was fully given to the jury in instructions 2 and 3, and • as favorably for appellant as the law would justify. It is quite manifest that there was no error in refusing it. The modification that was made to it by the court did not help it. It still contained its objectionable features, of which appellee might well have complained. The modification was, that the verdict must be for the defendant if the deceased “was killed in consequence of his own carelessness and negligence.” Of course, this was a sound legal proposition; but said instruction was merely cumulative on the subjects of reasonable care and contributory negligence, and in instruction 2 the jury was told that if there was a failure to exercise reasonable care which materially contributed to the accident, then their verdict must be for the defendant, and instruction 3 was of like import. And so the result is, the modification made by the court to said instruction 4 was correct in point of law, but did not state the law as strongly for appellant as it might have been stated. And instructions 2 and 4 supplemented, as it were, said modification, and by the instructions of appellant, as given, the whole doctrine of contributory negligence, as applicable to the case, was as fully and favorably given to the jury as appellant could justly ask.
Several other points of objection to the rulings of the court at the trial are suggested in the brief, but we do not deem it necessary to specially mention them.
We find no substantial error in the record. The judgment is affirmed.
Judgment affirmed.
