| Ill. | Dec 15, 1908
delivered the opinion of the court:
In support of the motion for a directed verdict it is said that there is no evidence tending to show that the obstruction of the street by the appellant was the proximate cause of the destruction of the house owned by Houren. Paragraph 77 of chapter 114, Hurd’s Revised Statutes of 1908, forbids a railroad company obstructing a public highway, by stopping any train thereon, for a longer period than ten minutes. Appellant’s train was standing over the street in violation of this statute. Appellant regards the damages as being too remote to be considered the proximate result of this violation of the law, and contends that a prudent and experienced man, fully acquainted with all the circumstances which existed at the time the train was left upon the street, would not have thought it reasonable that the house in question would have been destroyed by fire as a consequence of the obstruction of the street, and that for this reason the damages are not such as could be recovered on account of the unlawful act in question. It is not necessary that the burning of this particular house could have been foreseen. It is only damages of the character of those which occurred, to-wit, damages by fire, that must have been within the range of the consequences of the act reasonably to be expected. It seems clear to us that if a prudent man of experience had reflected upon the probable consequences of entirely closing up this street in a great city he would have foreseen, first, that to so close the street would obstruct and delay public travel thereon; second, that among the travel liable to be so obstructed and delayed would be the passage of teams, engines and other appliances of the fire department ; third, that if the travel of the fire department was so obstructed and delayed, any fire which the men of that department were seeking to reach would be more extensive and do greater damage than if the obstruction and delay had not taken place.
It is then contended that the fire, and not the obstruction of the street, was the proximate cause of the destruction of the building. The fire began in the cottage next to the one here involved, and the fire, in fact, did destroy the Houren building; but if the obstruction occasioned the delay, and if but for the obstruction the fire department would have been able to control and extinguish the fire before it reached this building, then the obstruction is to be regarded as an intervening and concurrent cause of the burning of the building, and in law would, with the fire itself, form the proximate cause, and appellant, under such circumstances, would be liable even though the fire might be regarded as the primary cause. City of Rock Falls v. Wells, 169 Ill 224.
It is then said that the policemen who were present at the obstruction when the fire engine reached there knew that by uncoupling the cars and releasing the brakes the cars would, on account of the slope of the track, move off the crossing without any propelling force other than the force of gravity, and that appellant could not be expected to foresee that the policemen, in the event of the fire department’s teams and vehicles approaching the crossing, would fail to adopt this measure to get the cars off the street. This is entirely too far-fetched. It was not the business of the police to keep the cars off the street; and, besides, there is nothing in this record to indicate that a reasonable man might not have supposed that the result of so setting the cars in motion would result in greater disaster than would the delay of the fire department. The evidence shows that when the teams reached the obstruction they had been running several miles and were very much exhausted. There is proof which tends to show that, passing to the east or west of the crossings obstructed by this train of cars, another railroad crossing, over which the men with the fire equipment could have passed to the south, would not have been reached until they had gone several blocks from the crossing at which they waited. The firemen might reasonably have expected to be able to obtain the assistance of an engine of appellant within a short time to remove the cars unláwfully upon the street.
It is next contended that there is no proof that the firemen would have been able to prevent the flames destroying the building had the delay not occurred. It is not possible to prove absolutely what the result of the fire department’s efforts would have been had the progress of the men not been delayed. The proof is, however, that á fire hydrant belonging to the city was conveniently located, and that the department, had the delay not occurred, would have been fully equipped to fight the fire in the ordinary way. The men, with the engine and other appliances of the fire department, reached the blockade not later than 2 :io A. M., and but for the obstruction they would have reached the fire in two or three minutes thereafter. The Houren cottage did not take fire earlier than 2 :3o A. M., and except for the unlawful act of appellant the fire department would have been on the scene of the fire at least seventeen minutes before that cottage began to burn. On account o'f the weather conditions the fire burned slowly. The cottages were small wooden buildings, fourteen by twenty feet in dimensions, and a story and a half in height. We fail to see how it can be reasonably argued that this proof does not tend to show that the fire department would have been able to prevent the destruction of the building had no delay occurred at the crossing. So far as this particular question is concerned, the case is not different from Kiernan v. M. C. Co. 170 Mass. 370, where the fire department, in attempting to attach a hose to a hydrant, were unable to do so on account of certain acts of the defendant. In that casé a recovery was permitted for property which might have been saved had the firemen been able to promptly connect a hose with the hydrant, and there, as here, it could not be said with absolute certainty that they would have been able to prevent the destruction of plaintiff’s property had no interference occurred.
It is urged that there is a variance between the proof and the statement of the cause of action filed, in reference to the location of the property which was destroyed. No such variance was pointed out in the municipal court, where the difficulty, if it existed, could have been readily obviated by an amendment. The point will therefore not be considered here.
The violation of the statute was negligence as a matter of law. In this respect the case is distinguished from those upon which appellant principally relies. As was well said by the Branch Appellate Court herein, the case is “as if the defendant had, at the moment when the fire department was about to pour a flood of water on the original fire, interposed by superior force, directly applied, to prevent this being done until too late to save the plaintiff’s cottage.” The motion for a peremptory instruction was properly denied.
The action of the municipal court in taking judicial notice of the existence of an ordinance of the city, general in its nature, which prohibited appellant leaving these cars on this crossing for a period longer than five minutes, is challenged. Paragraph 317 of chapter 74, Hurd’s Revised Statutes of 1908, provides that the municipal court shall take judicial notice of such ordinances. Any question that might otherwise arise as to the validity of this statute has been waived by appellant by taking the judgment of the Appellate Court upon other alleged errors.
Complaint is made of a statement of counsel for appellee in regard to what he would prove, which statement was made while he was conducting the examination of a witness. It does not appear that the trial court was given opportunity to act upon any objection in relation thereto.
The defendant’s refused instruction No. 2 was, in substance, the same as defendant’s given instruction No. 7. Defendant’s refused instruction No. 3 was designed to advise the jury of the considerations to be given weight in determining whether the blockade of the street was the proximate cause of the injury. It was not in accord with the views which have been above expressed in this opinion and was properly refused.
The judgment of the Appellate Court will be affirmed.
Judgment affirmed.