123 Ill. App. 300 | Ill. App. Ct. | 1905
delivered the opinion of the court.
The foregoing statement of facts is fully sustained by the evidence, and the evidence is, as we think, amply sufficient to warrant the jury in finding that appellant was guilty of negligence which proximately caused the injury. The south-bound train, which ran over and killed the appellee’s intestate, was due at Pullman two minutes before the north-bound train was due and arrived there, so that if the south-bound train had been on time, the trains must have passed south of, Pullman, as it is fair to infer they usually did. But the south-bound train was about three or four minutes behind time, so that if the north-bound train made time to Pullman, which it did, there was a probability that the other train would pass it at Pullman or north of'there. The engineer and conductor of the south-bound train must have known that train was late a sufficient distance north of Pullman to enable them to exercise such care in the operation of the train as to be able to stop it, for the safety of passengers getting, off or on the north-bound train at a station, and especially at such a station as Pullman, where all passengers coming from the depot to take a northbound train, or leaving that train, had to cross the southbound track. The evidence shows that the headlight of the south-bound train could be seen half a mile; but it also shows that the headlight of the north-bound train was burning, and if the former could, by reason of the straightness of the tracks, be seen half a mile, the latter could also, and the accident could have been avoided by careful operation of the south-bound train; and it was the duty of the engineer, his train being late, to have been on the lookout for the north-bound train. Whether he actually saw the headlight of that train does not appear; but if he was on the lookout, as was his duty, it would seem from the evidence that he must have seen it. His fireman testified that' as the south-bound train was arriving at Pullman, he saw a headlight standing there. Yet the engineer ran his train at the rate of from twelve to fifteen miles per hour, in approaching Pullman, when, as he says, the train could not be stopped in a less distance than about 450 feet.
Much that is said in Pennsylvania Co. v. Reidy, 198 Ill. 9, affirming same v. same, 99 Ill., App. 477, is applicable in this case. Appellant’s counsel do not contend that the south-bound train was not negligently operated. Their contentions are that the deceased was guilty of negligence which contributed to the injury; that the court erred in excluding evidence offered by appellant, and in its rulings on instructions, and that the sum awarded as damages is excessi ve.
It is contended that the deceased was negligent, in not discovering that the front platform of the smoking car in wffiich he was riding was north of the station platform, and in not passing from the baggage door onto the platform. In view of the fact that appellant had displayed, in the car in which the deceased was riding, a notice to passengers to leave the car at the forward end, we cannot regard the contention that the deceased was negligent, in not obeying the notice, otherwise than as illustrative of the weakness of appellant’s case. The deceased could have rightfully alighted from the front platform, if not forbidden so to do by appellant, a fortiori he could when enjoined so to do by appellant.
It appears from the evidence that some of the passengers, who were near the front of the car, started toward the front door, for the purpose of alighting from the front platform, but having learned in some way7, which does not appear, that the front of the car had passed the north end of the platform, they turned back, and some of them went through the west baggage door onto the station platform. But that door was not opened by any of the train crew, nor were any of the passengers requested by any of the crew to go through it. Carlson, a passenger on the smoking car, testified that he opened the baggage door, and Melvin, also a passenger in that car, testified that he saw the baggage door opened, and that the deceased had gone out onto the front platform before it was opened. Marshall, a passenger on the front car, testified that he saw a crowd trying to open the baggage car door, but,, at that time the deceased had gone out of the front door. But even though the deceased had known that the front platform of the car had passed the station platform, and that the baggage door was open, he would not, as we think, be chargeable with negligence in view of appellant’s injunction to leave the car at the front end, especially as that injunction was not countermanded. But it is contended that the deceased was guilty of want of exercising ordinary care, in going down the south-bound track, on his way to the station, that he might have gone west of that track safely; and, also, that had he looked north he would have seen the headlight of the south-bound train. It is not negligence, as matter of law, for one crossing a railroad track, not to look, to ascertain whether a train is approaching,'but whether it is negligence is a question for the jury, in view of all the facts and circumstances in evidence. C. & N. W. Ry. Co. v. Dunleavy, 129 Ill. 132, 148. The deceased could not go to the turnstile, through which he had to pass on his way from the railroad right of way, without crossing the south-bound track. The crossing of that track was part of the way provided by appellant to and from the north-bound5 track. Therefore, the deceased was not a trespasser in going onto the south-bound track.
It was not the fault of the deceased that he alighted from the front platform of the car where he did. He alighted there by the express direction of the appellant. When he alighted he was in the space between the two tracks and north of a fence at the north end of the station platform which prevented access to that platform; nor was it his fault that he got onto the south-bound track where he did. He, like all the other passengers, had to cross that track in going from appellant’s right of way. That track, as Cutpmings, engineer of the south-bound train, testified, was elevated from sixteen to eighteen inches above the level or surface of the ground.' The night was dark, and the deceased probably could not observe the character of the ground west of the track, but knowing that the track0was level, he ran south along it, on his way to the approach to the turnstile. The relation between appellant and the deceased, and the duty of the former to the latter arising from such relation, are thus concisely stated in Pennsylvania Company v. McCaffrey, 173 Ill. 169, 173: “When appellee alighted, the relation between himself and appellant was that of passenger and carrier. This relation between a passenger and a railroad company does not cease upon the arrival of a train at the place of the passenger’s destination, but the company is still bound to furnish him an opportunity to safely alight from the train. It is its duty, not only to exercise a high degree of care while the passenger is upon the train, but also to use the highest degree of care and skill, reasonably practicable, in providing the passenger a safe passage from the train. (Denver, etc., Railroad Co. v. Hodgson, 18 Col. 117; Chicago and Eastern Illinois Railroad Co. v. Chancellor, 60 Ill. App. 525.) Bishop in his work on Mon-contract Law (Sec. 1086) says: ‘The tracks around the platforms, and places for entering and leaving the cars, * * * should be made safe and kept so.’”
The passengers, in passing from the train, had a right to assume that the way was safe and would be kept so while they were on their way, and could not, as we think, reasonably have anticipated that appellant would, while the train which they had just left was standing at the station, operate a train at the speed of from twelve to fifteen miles per hour, or at all, past the standing train and on the track which they had to cross. We think it.was a question for the determination of the jury, in view of all the facts and circumstances in evidence, including the age, degree of intelligence and necessarily limited experience of thedeceased, whether, in running south on the south-bound track, he could be charged with want of ordinary care.
■ Appellant’s counsel complain that the court ruled against the following question, which was asked Dillon, the engineer of the north-bound train: “If you know, what is the custom as to apron's of all cars on the arrival of Blue Island trains at Kensington?” Kensington is the station next south of Pullman, and the station platform there is elevated, and we infer that the object of the question was to prove that the custom was to let down the apron there over the car platform steps, from which counsel would have the inference drawn that the apron was also down at Pullman. But counsel, in a previous part of his argument, says that it is immaterial whether the apron was down or up when the train stopped at Pullman, in which statement we agree; and, if immaterial, the question was properly overruled. On the other hand, if material, the question was properW overruled, because the question .then would be whether the apron was, in fact, down at Pullman—not what the custom was at Kensington.
The fireman on the south-bound train was asked, “ What, if anything, more was there that the engineer could have done, at that time, to have stopped the train, than he did do?” The time referred to in the question is when the engineer saw the deceased on the track, about twenty-five feet distant from the engine. The evidence tends to prove, and the engineer testified, that he could have done nothing more than he did. This is not contradicted, and it is not claimed by appellee that the engineer could have stopped the train running at its then rate of speed, after he noticed the deceased on the track. The negligence was in not operating the train more slowly and cautiously, and in not keeping a lookout for the north-bound train, in view of the south-bound train being behind time. We think the question was properly ruled against.
We find no error in appellee’s instructions complained of by appellant’s counsel.
The appellant’s 5th instruction, the refusal of which is claimed to. have been erroneous, was properly refused. It concludes as follows: ‘^But, before the plaintiff can recover, she must prove by competent testimony, and by-a preponderance thereof, that the deceased was in the exercise of due care and caution for his own safety, at the time he received the injury; that is, the plaintiff must prove, by a preponderance of the evidence, that the deceased was exercising such care and caution for his own safety as a reasonably prudent person should have exercised, at the time and in the place, or your verdict should be for the defendant.” The instruction, if given, would have imposed on the appellee the burden of proving that the deceased was bound to exercise as great care as an adult would have been bound to exercise in like circumstances. Such is not the law. Deceased was only bound to use such care as children of his age, capacity and intelligence are capable of exercising. City of Pekin v. McMahon, 154 Ill. 141, 154, and cases cited. The court fully instructed the jury as to the necessity of proof that the deceased exercised ordinary care.
Lastly, it is urged that the sum awarded as damages is excessive. The deceased was fourteen years and four months old when the accident occurred. His mother testified that he had been going to school since he was six years old, and was in the eighth grade at the time of his' death, and was healthy, bright and intelligent. He left him surviving his father, mother, and a sister aged twenty-' one years. In City of Chicago v. Keefe, 114 Ill. 222, 230, the court say: “Parents, and even brothers, might reasonably expect, in many ways, to derive pecuniary benefit from the continued life of the intestate, as of grace and favor, if not of right, at any age of life, and our statute imposes the duty of support, in the event of their becoming paupers, of the parent by the child, and of one brother or sister by another brother or sister,” and the court held proper the refusal .of an instruction framed on a different theory. Seé, also, McLean County Coal Co. v. McVey, 38 Ill. App. 158,161, and Ry. Company v. Then, 159 Ill. 535, 539. In the last case the Supreme Court, adopting the opinion of the Appellate Court, approved an instruction concluding thus: “But the jury may consider the pecuniary benefits ■which the next of kin may have derived from said deceased, had she not been killed, at any stage of life.” We decline to hold that the sum awarded as damages is excessive.
The judgment will be affirmed.
Affirmed.