157 Ill. 354 | Ill. | 1895
delivered the opinion of the court:
The refusal of the first and fifteenth instructions asked by the defendant presents to this court the question as to whether, under the facts in this record, the plaintiff was entitled to recover because of any negligence on the part of the defendant, and whether the intestate exercised due care and caution for his own safety. The number of tracks running parallel with that on which the intestate was killed, the number of trains passing each way at about the time of the injury, and the fact that a great many men were liable to be ordered from the shops to roll wheels from the repair shops to the machine shops, thus necessitating the crossing of all the tracks, and after doing that work returning across those tracks, were facts known to the master. It was a fact also known to the master that engines were being run both forward and backward on various tracks. These known facts rendered the place a hazardous one. The work of rolling the wheels across the tracks was laborious, and the crossing of the tracks with those wheels and returning to the repair shops across those tracks were required from and made necessary on the part of the men called from the repair shops for that work. With the hazardous character of the place where the injury occurred, made so by reason of the number of tracks, trains and necessary switching, there was conjoined the fact that work requiring a large number of men — from one hundred and fifty to two hundred in this instance — to cross the tracks to and fro, was of frequent occurrence, and this also was known to the master. The manner of moving trains, their number, and the number of men crossing back and forth at that place in the discharge of their duties to the company, made it the common law duty of the company to take extra precautions to look out for and warn the men so crossing. Of all the men employed on the train none saw or knew of the injury to the intestate until after his death. All the efforts of Crawford, the foreman at the shops, and others, by hallooing and otherwise, failed to attract their attention. None of the train crew saw or heard their efforts to give notice, and it is apparent there was no look-out from the engine for danger to persons crossing. There was difficulty in seeing a train approaching, because the morning was dark, and snow was falling and a strong wind blowing. ■ Witnesses testified that they saw the engine two or three car lengths from where they were as they crossed, and could not tell whether it was moving or not. Its approach was with but little noise, and there is conflict in the evidence as to whether the bell was ringing. With all these circumstances shown by the evidence, and this conflict as to whether the bell was ringing, it was a question for the jury to determine whether the company used proper precautions to .look out for and warn the men whose duties required them to cross the tracks under such state of facts. It does not appear that a look-out was kept from any part of the engine or train, or on the track.
The intestate, on entering the service, impliedly undertook to observe all proper care for his own safety, without any warning against the ordinary perils of his employment, and by his contract of hiring assumed the risk of injury from the ordinary dangers, which would include those known to him or discoverable by the exercise of ordinary care on his part, and if, knowing the hazards of the employment in the manner in which the business was conducted, he voluntarily continued therein, he could not recover because there was a safer mode of conducting that business. The workmen were subject to the orders of the foreman of the shops, who directed the wheels to be taken across the tracks and the men to return to the shops. The foreman testifies that he had to watch the time and wait for an open track before he could get them up or down, — that he watched the time when he could get the wheels across, and watched the men as close as he could, and always told them to be careful. The belief would thus be induced in the minds of the men thus sent across the tracks that they might pass in safety, and it became the duty of the company, in running engines ox-trains through the yard where so many men were employed, to exercise extra care and caution, where the circumstances rendered the usual method of doing the work more than ordinarily hazardous. Admitting that danger arising from the elements or changes of the weather are a part of the ordinary risks incident to an employment assumed by the employee on entering the service, axid that if injury results from such assumed risks without that risk being aided or increased by the negligence of the company or its superintending agencies, the employee could not recover, still the rule is, where negligence is a question of fact, as it most generally is, its solution must depend on the circumstances surrounding at the time of the injury. It was charged that the defendant was guilty of negligence, under the circumstances, in recklessly, negligently and at a high rate of speed running its train through a place where men were working, and over Gilbert. The surrounding circumstances required a commensurate degree of care by employer and employee alike, and whether that degree of care was used was a question for the jury.
It is urged that the deceased was not in the exercise of proper care and caution for his own safety at the time he went upon the track, or in attempting to cross it, at the place where and time when injured. Under the orders of the foreman, who watched the time for an open track when he could get the wheels across, the deceased discharged his duties. The surroundings were such that others near were unable to tell whether the train was moving at the time they saw it, and its approach was so noiseless that it was not heard by them. Gilbert went directly towards the shops, where he was required to be. Thus, the question whether, under all the surrounding circumstances, the deceased, just prior to being killed, was in the exercise of reasonable care and caution for his own personal safety was proper to be submitted to the jury.
It was not error to refuse the first and fifteenth instructions asked by the defendant.
What has been said herein sufficiently disposes of the error assigned in refusing the thirteenth instruction asked by the defendant. It entirely ignored the fact of circumstances surrounding at the time, affecting the duty of employer and employee alike to exercise care and caution commensurate with attendant danger. The court instructed the jury fully, at the request of the defendant, that plaintiff could not recover unless the deceased was in the exercise of ordinary care at the time of his death, etc., as well as on other questions in the case.
There was asked, and the court gave, but one instruction for the plaintiff, which is copied in the statement herein, and it is urged this instruction has been held erroneous by this court in Chicago and Northwestern Railway Co. v. Dimick, 96 Ill. 42, and in North Chicago Rolling Mill Co. v. Morrissey, 111 id. 646. In the Dimick case the first and eighth instructions given for the plaintiff are copied in the opinion, and held to be erroneous. The first was, that the statute required a bell of at least thirty pounds weight, or a steam whistle, to be placed on each locomotive, and to be rung or sounded at the distance of at least eighty rods from the place where the railroad crosses any public street or highway, and to be kept ringing or sounding until such street is reached, etc., and the eighth instruction was similar to that given in this case. In the discussion of those two instructions they are treated as one, and the opinion holds (p. 47): “An instruction almost identical with the above was condemned in Chicago, Burlington and Quincy Railroad Co. v. Harwood, 80 Ill. 88. It may be said that the defendant’s instructions gave the law on this subject accurately to the jury; but that is not enough. Where a case is close in its facts the instructions should all state the law accurately. The 'jury, not being judges of law, are as likely to follow a bad instruction as a good one.” After discussing the ninth instruction it is then further said: “Without entering upon any discussion of the evidence, we are of opinion that the giving of these three instructions was error.” On referring to the Harwood case, cited in the Dimiclc case, the instruction is found to embrace substantially in one instruction all that is included in the first and eighth instructions in the Dimiclc case. The instruction in the Harwood case was held to be error, because it asserted a right of recovery under the circumstances named in it, without containing the requirement of due care on the part of the deceased. It is apparent, on a consideration of the Dimiclc case, that the writer of the opinion in that case used the first and eighth instructions together for determining a settled question, as being the same, when so taken as one instruction, as the instruction in the Harwood case, and says of it, “an instruction almost identical with the above was condemned,” etc. No discussion of the eighth instruction, separately, is had, and the subsequent reference to the three instructions, as made in the Dimiclc case, was merely an inadvertent use of the word “three” instead of “two.”
In Rolling Mill Co. v. Morrissey, supra, the instruction purported to be complete in its statement of what would authorize a recovery, and omitted all requirement of due care and caution on the part of the deceased. It further allowed the jury to give such damages as they should deem a fair and just compensation, regardless of proof.
An instruction almost identical with that given in this case was challenged by the appellant in Chicago, Burlington and Quincy Railroad Co. v. Payne, 59 Ill. 534, and it was held: “The point of this instruction is the measure of damages, and in this respect is entirely correct." But appellant’s counsel insists that it is wrong because it withdraws from the jury all consideration of the conduct of deceased. "We do not think the instruction obnoxious to criticism, as claimed. It is not an unusual, nor is it an objectionable, practice, where plaintiff’s counsel desire an instruction as to the rule of damages, to say to the jury, that if they find, from the evidence, that the defendant is guilty as charged in the declaration, then the plaintiff is entitled to recover, and to define the measure of damages. Such a mode obviates the necessity of stating, and perhaps reiterating, hypothetically, each element of the cause of action before coming to the real point of the instruction. The declaration here alleges that the death * * * was caused by the wrongful acts, neglect and default of defendant’s servants, while he was exercising due care.” That case stated that the point in the instruction was as to the measure of damag-e, and was not referred to in the Dimiclc case nor intended to be qualified by it. So far as that instruction was alluded to in the Dimiclc case, it was, as we have said, to unite the first and eighth as one instruction passed on in the Ear-wood case.
Instructions like the one now under discussion were before this court in Chicago, Milwaukee and St. Paul Railway Co. v. Dowd, 115 Ill. 659, Pennsylvania Co. v. Marshall, 119 id. 399, and Chicago, Milwaukee and St. Paul Railway Co. v. O'Sullivan, 143 id. 48, in each of which it was held to relate solely to the measure of damage. An examination of all -these cases will show there is no conflict in the opinions of this court as to instructions of the character of the one given in this case for the plaintiff. It relates solely to the measure of damage, and need not incorporate the requirement that plaintiff was in the exercise of due care and caution. It was not error to give it.
Plaintiff offered in evidence an ordinance of the city of Chicago which required a bell on the engine to be rung continuously while running within the limits of the city, certain places excepted, which was allowed in evidence over the objection of the defendant. It was objected to, first, that the city had no power to enact such ordinance; second, if it had the power, the ordinance had no application to the relation of employer and employee on the right of way of the company; and third, it was repealed by a subsequent ordinance.
By the 27th subdivision of section 1, article 5, of the City and Yillag'e act, the city council is authorized “to require railroad companies to keep flagmen at railroad crossings of streets, and provide protection against the injury to persons and property in the use of, such railroad.” The authority to provide protection to persons in the use of such railroad would authorize the enactment of ordinances which would reasonably tend to protect persons from injury by the use made of the road by the company. An ordinance requiring the ringing of a bell on an engine running within the limits of a' city would not be an unreasonable requirement, and a compliance therewith would tend to give notice of the approach of an engine on the track, and notice of its approach.would tend to the protection of persons on or crossing such track. The first ground of the objection was not well taken.
The, city having the right to adopt the ordinance, whoever would be benefited by a compliance therewith on the part of the company would be entitled to the protection that obedience to the law would furnish, whether an employee or not. The second ground of objection was not well taken.
The third ground of objection was, that the ordinance had been repealed by a later ordinance. The defendant offered in evidence for the court an ordinance which was urged to be a repeal, by implication, of that offered by plaintiff. From a careful examination of the ordinance offered by defendant we hold it does not effect a repeal of that offered in evidence by the plaintiff. It was not error to overrule the objection.
We find no error in the record, and the judgment is affirmed.
T „ , Judgment affirmed.