62 Ill. App. 264 | Ill. App. Ct. | 1896
delivered the opinion of the Court.
It is insisted that the demurrer to the pleas of the statute of limitations was improperly sustained, and that the defendant was entitled to have the question of whether the cause of action set up in the additional counts was other and different from that set up in the declaration first filed, tried by a jury; because, as is urged, the allegation that the said causes of action were other and different from those set up in the declaration first filed, presented a question of fact for the determination of a jury.
A party can not, by his pleading, determine the character of his adversary’s pleas. Nor is the construction of pleadings a thing to be submitted to a jury.
The various counts of plaintiff’s declaration were before the court, and it was for the court, upon an examination of such counts, to decide whether the cause of action set up in the additional counts was the same as that set forth in the declaration first filed, or other and different.
In the case of Phelps v. Ill. Cent. R. R. Co., 94 Ill. 555, 4 Ill. App. 238-243, it does appear that the plea of the statute of limitations contains the allegation relied upon here, and that a demurrer to such plea was wrongly sustained, but there is no intimation that it was because such allegation was in the plea, that the demurrer thereto should have been overruled; on the contrary, the reason for the decision is not that a jury should have been allowed to determine as to the truthfulness of such allegation, but because, as the Appellate and Supreme Courts each find, the cause of action set up in the new counts was other and different from that declared upon it in the first count.
We think that the court below properly held in this case, that the cause of action set up in the additional counts was the same as that set forth in the declaration first filed. Each count appears upon its face to be but a different way of stating the cause of action originally declared upon.
The demurrer to the pleas of the statute of limitations was therefore properly sustained. Dickinson v. C., B. & Q. R. R. Co., 81 Ill. 215; Mitchell v. Milholland, 106 Ill. 175; North Chi. Rolling Mill Co. v. Monka, 107 Ill. 340; Blanchard v. L. S. & M. S. Ry. Co., 126 Ill. 416; Stearns v. Richy, 33 Ill. App. 246; Fish v. Farwell, 54 Ill. App. 457; Swift & Co. v. Foster, Adams & Co., 55 Ill. App. 2S0; I. C. R. R. Co. v. Campbell, 58 Ill. App. 277.
It is true that appellee did not sustain to appellant the relation of a passenger; it was not bound to exercise the highest diligence to insure his safety. His right to go where he was proceeding, and to be where he stood when struck, was certainly the equal of that of appellant. All the world, cor-: porations and individuals, owe a duty to strangers. Ho one can be reckless as regards the welfare of any with whom he may be brought into contact. Although the running arrangements for trains upon this road may have been made by the Northern Pacific Ry. Co., yet appellant was a voluntary agent in acceding thereto.
For reasons satisfactory to itself, it ran its train as it did at the time of the accident.
Appellant knew that for its train, while running at a rate of twenty-five miles an hour, to pass at a station a train there waiting to receive passengers, was very dangerous to persons who might be crossing appellant’s tracks to go to the waiting train. It knew that due regard for the rights and safety of intending passengers of the Northern Pacific Ry. Co. required that its stations should be approached and passed with care.
The engineer of appellant’s train, seeing the Horthern Pacific train waiting at the station, had notice that persons were quite likely at such time to be crossing the tracks, as passengers were compelled to do in order to go to and from the trains of the Horthern Pacific.
Appellant at some time seems to have recognized these things by one of its rules in force at the time of the accident, which was as follows :
“ Trains on double tracks, moving in either direction, must not under any circumstances pass a station without stopping, at which a passenger train from an opposite direction is standing, receiving or discharging passengers. In approaching stations where a passenger train is due or past due, where the view is not clear, trains must be under perfect control, so as to stop if necessary before arriving <xt the station. ' The speed of trains must be so regulated that when passenger trains áre on time they will meet between stations on double tracks.”
Had this rule been obeyed, the accident would not have happened.
Was appellee exercising ordinary care?
He had a right to suppose that appellant would substantially observe its own rule, above set forth; not that appellee knew of the existence of such rule, but that it is merely a statement of what a fair regard for the rights of those having occasion to go to or from the passenger trains of the Horthern Pacific road required.
There was a curve in the tracks near the place of the accident, so that we are unable to tell from the evidence at what distance in the direction appellant’s train was coming, appellee could see the approaching engine; he says that he did not see it. Ordinary care is such care as reasonably prudent and cautious persons exercise under like circumstances. C. & St. L. R. R. Co. v. Hutchinson, 120 Ill. 587; C. & A. Ry. Co. v. Adler, 129 Ill. 340.
Eeasonably prudent people do frequently and habitually cross railroad tracks to go to a passenger train, waiting at a station to receive passengers. The reasonably prudent and cautious person does not always take care to have knowledge of, and bear in mind, the times at which the trains of roads he is not accustomed to use pass the stations of the road which he does make use of.
The ordinarily prudent person does, perhaps, look ere he cross any railroad track to see that no train is approaching upon it; but in the present case it does not appear that it was because of a failure to so look that appellee was injured.
As the stations and tracks of railroads are constructed in this country, it is impossible in many cases for passengers to do otherwise than cross railroad tracks. Such was the case at Ogden avenue. Such was .known to appellant, and it was its duty to so govern the movement of its trains as not to endanger the life of all who had occasion to cross, at this point, the tracks which it made use of.
The jury was fairly instructed, and the judgment is not for an excessive amount; it is therefore affirmed.
