87 Ill. 529 | Ill. | 1877
delivered the opinion of the Court:
The facts set out in the declaration claimed by appellee as constituting negligence on the part of the railroad company, are, in the first count, in omitting to cause a bell to be rung or steam whistle to be sounded, or other signal to be given ; in the second count, in running its locomotive and train by the station mentioned at a high rate of speed, without sounding the whistle or ringing a bell; and in the third count, in running a freight train between a standing passenger train at a station, and the passenger house, in violation of a rule of the-company in that behalf.
As to ringing a bell or sounding a whistle, although there was some conflict in the evidence, the clear preponderance of it would seem to be in favor of the bell being rung and the whistle sounded.
The train would not seem to have been run at a high rate of speed.
As to the rule relating to the movement of freight trains between passenger trains and stations, it is as follows: “When passenger trains are at stations, receiving or discharging passengers, freight trains must not pass between the standing train and passenger house, and passenger trains must run carefully when passing the standing train.”
This rule we do not consider has application to the case. The testimony shows satisfactorily that, at the time^ of the accident, there was no passenger train at the station “ receiving or discharging passengers.” It had discharged and received the passengers for that station, and was moving away from it. The rule was for the protection of passengers between the standing train and the passenger house, and not for the protection of persons who were quite a distance away, carelessly walking on the track. The rule was for the government and information of employees, and it was the testimony that switch trains operating in the yards of the company were not required to observe the rule.
But, we conceive, no such negligence as is here alleged would give a right of action, under the circumstances of such want of care and caution on the part of the plaintiff as is exhibited in this record. Appellee entered upon the track directly in front and within a few feet of the approaching engine from the north, without looking north to see if an engine was coming, as he admits himself, and others assert, and seemingly without listening for bell or whistle, or taking any precaution to ascertain whether or not he was in danger. He was so absorbed, apparently, in something else, that he could not hear calls coming to him from two directions, warning him of danger. The track was straight for two miles north. At the time, the engine had passed the switch, and the engineer, supposing the track was clear in front of him, was looking back to receive the signal of the switchman, which would indicate when the last car in the train was over the switch. There is no pretense that the engineer saw appellee before the engine struck him. There is no evidence going to show that the employees of appellant wantonly or willfully caused the injury.
Appellee alleges, in excuse of his going upon the track as he did, that the company had provided no means of exit; that the station was so situated that it was necessary for the public to pass over the track in going from the station to 51st street, and that it was notoriously used for that purpose. Appellee was going along upon the track, in the use of it as a way to reach his home, which was on State street, south of 51st street, for which purpose he would go south upon the track to 51st street, thence on that street east to State street, thence south, home. Between the station house and State street, on the east, there was a large space of open prairie, over which were paths to State street, to which paths access was easy by way of the stile at the fence at the south end of the depot. This way across the prairie to State street was as direct to his home as the one by which appellee was proceeding. By the side of the track he was traveling on, between it and the Rock Island main track, was ample space in which persons could pass from 51st street to the depot, without danger from either train. By the side of the fence, along the east side of this parcel of land, there was abundant room to travel safely along. There were thus three other safe ways of exit. All that can be said for not using any one of them is, that the walking was not so good as upon the track, between the rails. This, of course, did not justify appellee in taking the dangerous way, except upon the' condition of assuming the risk of the perils he might encounter.
In excuse for not using any precaution to ascertain whether there was any train approaching from the north, appellee urges the practice of the roads to run all trains south from Chicago on the Bock Island track, and all trains north, towards Chicago, on the Lake Shore track; and that, therefore, in going upon the Lake Shore track, he was only bound to look south to see if any train was coming from that direction. Appellee was not justified in relying upon any such practice, as the result showed. The companies had the right to change such practice at any time, and to run their trains at all times in either direction, and any dependence upon such former practice was at appellee’s risk. This practice before, did not excuse the exercise of caution and vigilance in looking for approaching trains in both directions. Besides, the proof showed satisfactorily that this practice did not prevail as to switching engines and trains being switched in the yards between 42d and 51st streets.
This court has, time and again, decided that it was the duty of every person about to cross a railroad track, to approach cautiously, and endeavor to ascertain if there is present danger in crossing, as all persons are bound to know that such an undertaking is dangerous, and that they must take all proper precaution to avoid accidents in so doing, otherwise they could not recover for injury thereby received. Among the later decisions are Chi. and Northwestern Railroad Co. v. Sweeney, 52 Ill. 325; Chicago, Burlington and Quincy Railroad Co. v. Van Patten, 64 id. 510; Illinois Central Railroad Co. v. Godfrey, 71 id. 500; Illinois Central Railroad Co. v. Hall, 72 id. 222; Chicago, Burlington and Quincy Railroad Co. v. Damerell, 81 id. 450; Illinois Central Railroad Co. v. Hetherington, 83 id. 510; and see Lake Shore and Michigan Southern Railroad Co. v. Miller, 25 Mich. 274; Harlan v. St. L., K. and N. Railroad Co. 64 Mo. 480; Fletcher v. The Atlantic and Pacific Railroad Co. id. 484; Gorton v. The Erie Railway Co. 45 N. Y. 662; Wharton on Negligence, § 384.
With increased force does the rule apply, and a higher degree of vigilance is required, where, as in the present case, a party is not lawfully upon the track at a crossing, or upon a public highway, but is walking along laterally upon the track as a way of convenience, where it is exclusively the private right of way of the railroad company.
There was in the present case such palpable failure in the exercise of due care, and caution on the part of the appellee as to preclude him from any right of recovery.
The judgment will be reversed.
Judgment reversed.
Walker and Dickey, J.J., dissent from the views expressed, and from the conclusion of the court in this case.
