179 Ill. 196 | Ill. | 1899
delivered the opinion of the court:
Whether the statute requiring those in charge of a railroad train to give signals of the approach of the train to a public road crossing has application where the highway is carried over the track of the railroad by means of an overhead bridge, or whether such statute has reference only to crossing's of the highway and the track of the railroad at a common level, cannot be determined by the decisions of the courts of sister States or on the authority of law writers. The decisions of the courts of the various States are based upon the peculiar phraseology of the statutes of the States, respectively, and the views of the authors of the text book are not harmonious. Aside from any statutory regulation, it is the duty of a railroad company, in operating its trains, to use ordinary care and prudence to avoid injuring persons or property at points where the track of the railroad is crossed by a public road, and compliance with every statutory regulation will not be deemed sufficient to relieve a company from liability if common prudence would dictate the exercise of other and additional precautions. (Chicago, Burlington and Quincy Railroad Co. v. Perkins, 125 Ill. 127.) Travelers upon the highway and the railroad company whose track crosses the public way at a common level have mutual rights and reciprocal duties and obligations in the use of the crossings. The trains of the company, out of considerations of public convenience and from the necessities of the case, were granted priority in right of passage, provided the servants of the company in charge of the train comply with the statutory regulations designed to advise the traveler of its approach, and adopt such other precautions as ordinary prudence would dictate for the safety of persons who may be on the public highway with intent to pass along it across the track of the railroad. Priority in the right of passage at such crossings being granted to the railroad company, it was but reasonable to charge it, by statutory enactment, with the duty of advising those persons using the highway and intending to pass along that part of the highway which is also a part of the railroad track, that it is about to exercise its prior right to move its train along its track and over and across the same point in the highway. While the liability of the company to answer in damages for injuries to persons and property arising from a failure to observe the statutory enactments is not confined to such injuries as result from collisions between its trains and such persons or property, it is manifest the crossings contemplated by the statute were those where the bed of the highway and the track of the railway were upon common ground and at the same level. In view of the state of the law it may be asserted with the utmost confidence the peril arising from the possible and probable presence of traveler and train at the same time at a place-where each had a mutual though reciprocally restricted right to go was the prime moving cause for the enactment of the statutory regulation in question.
We held in Mobile and Ohio Railroad Co. v. Davis, 130 Ill. 146, that the term “public highway,” as employed in the statute under consideration, was not limited in its signification to the common public roads of the country, but that its meaning was broad enough to include streets in cities, and that it was incumbent upon a railroad company to announce the approach of one of its trains to a street crossing by ringing the bell or sounding the whistle in compliance with the terms of the statute. But in Blanchard v. Lake Shore and Michigan Southern Railway Co. 126 Ill. 416, it was said, perhaps in arguendo yet nevertheless correctly, that the statute in question had no application to the crossing of the tracks of the railroad company (appellee in that case) over Halsted street in the city of Chicago, for the reason no travel passed over the tracks of the railroad at that street except upon the viaduct, far above and out of the way of trains. The statute being applicable to crossings of streets and railroad tracks, it would follow, if its application is not properly restricted to crossings having a common grade, that trains operated upon tracks elevated above or depressed below the level of the streets in cities, where the trains are perhaps at all times within much less than eighty rods of a crossing, would be required to keep the whistle blowing or the bell ringing continuously, to the great annoyance of the public, amounting practically to a nuisance.
It is not indispensable to the protection of the persons and property of those passing along a highway with intent to cross the track of a railroad which crosses the highway either so far above or so far below the level of the highway as that there is no danger a collision will occur, the statute should be given the construction given it by the trial court, for, as we have seen, in the entire absence of any statutory regulation the law requires companies operating railroad trains shall adopt every precaution which common prudence would dictate to be necessary, under the particular circumstances of the occasion, to notify persons about to proceed along the highway on, over or under the track of the railroad, that a train is approaching the place of crossing. In the case at bar the highway at the place of crossing consisted of a bridge so far above the track of the road as to preclude all danger of collision. Whether notice of the approach of the train was given by ringing the bell or sounding the whistle of the locomotive was proper for consideration, together with other facts and circumstances appearing in the proof as bearing upon the question of fact whether such notice of the approach of the train had been given as ordinary prudence and due regard for the safety of the citizen demanded; but it was not true, as a matter of law, that it was the statutory duty of the company to cause the “bell of the locomotive to be rung or its whistle to be sounded from a point when the same (the locomotive) was eighty rods distant from said highway and until the crossing was reached,” as the court advised the jury by the instructions.
The judgment of the circuit court and that of the Appellate Court affirming it must be and are reversed, and the cause remanded to the circuit court for further proceedings in conformity with this opinion.
Reversed and remanded.
Mr. Chief Justice Carter, dissenting.