11 Ill. App. 536 | Ill. App. Ct. | 1882
We think the court below erred in refusing to give to the jury the defendant’s eighth instruction. The ordinance set out in the fourth count of the declaration as the foundation of the defendant’s liability, imposes upon “ all railroad companies, whose track or tracks cross or intersect any of the streets of the city of Chicago” (within certain prescribed boundaries), the duty of keeping and maintaining a flagman, and of erecting and maintaining a bell tower, at each of said crossings. This ordinance applies to the proprietors of railroad tracks, which doubtless may include, not only the owners, but those holding possession and control as lessees or otherwise. But, unless a company has possession and control of a given track, either as owner, lessee, or in some other way, it is plain that no duty is imposed by the ordinance, to provide watchmen, or to erect bell towers. Indeéd, in the absence of possession and control, a company would have no right to place watchmen, or to erect bell towers at crossings, and if it should attempt to do so, its act would constitute an unwarrantable intrusion upon the rights of others.
The hypothesis assumed by the instruction is, that the tracks and grounds at the place where the accident complained of occurred, were the exclusive property and tracks of the Chicago & Alton Railroad Company, and that the defendant had no property in a right to use said tracks, except a mere temporary right to run over them, subject to the regulations, and under the control and directions of the Chicago & Alton Railroad Company. If the hypothesis here assumed is true, and there was evidence tending to prove it, it is manifest that the defendant had no such possession or control of said tracks, as brought it within the purview of said ordinance. It necessarily follows that its failure to provide a watchman or a bell tower at said crossing, would not be negligence.
We are further of the opinion, that upon the hypothesis contained in the instruction, the defendant could not be charged with negligence in respect to the cars alleged to have been left standing, so as to obscure the view of approaching trains. A party can not be charged with negligence in failing to perform an act, unless he has both the power and the right to perform it. .It should be observed that there was no evidence tending to show that the cars standing on the track belonged to the defendant, or that they were placed there by its servants. The only question was, whether its servants were negligent in allowing them to remain, that is, in failing to move them away. How, if it be true that the defendant’s servants were merely running the defendant’s cars over one of the tracks, and that they were doing so under the control and direction of the Chicago & Alton Railroad Company, they had no right, nor was it within their power to interfere with the cars standing on the other track. That was a matter not within their control, and therefore as a necessary consequence, a matter in respect to which the defendant had no responsibility. If then it was negligence to permit said cars to remain, such negligence was imputable to the Chicago & Alton Railroad Company alone, and the jury should have been so instructed.
We are unable to perceive that the authorities cited by the plaintiff’s counsel in any way conflict with the views we have here expressed. Those were cases where the company charged with negligence vas in possession of the railroad track as lessee, joint occupant, or otherwise, under some contract or arrangement which gave it dominion or control over the track, and the movement of its trains thereon, and in that ' respect wholly unlike the case supposed in the defendant’s eighth instruction..
By the third instruction given on behalf of the plaintiff, the attention of the jury was called generally to the various charges of negligence contained in the declaration, including of course, the failure to maintain a watchman and a bell tower, and also to remove the cars standing on the other track, and the question of the defendant’s liability upon each and all .of said charges, was thereby submitted to the jury for their determination. With this instruction before the jury, it became highly important that they should be instructed upon the hypothesis contained in the defendant’s eighth instruction ; and for the refusal of the court to so instruct, the judgment must he reversed, and the cause remanded.
Judgment reversed.
