| Ill. | Nov 10, 1881
Lead Opinion
delivered the opinion of the Court:
This was an action by Rudel, against the Pennsylvania Company, to recover for a personal injury sustained from the alleged negligent running of a passenger train on defendant’s railroad. There was a recovery by the plaintiff, which, on appeal, was affirmed by the Appellate Court for the First District, and defendant has appealed further to this court.
The evidence goes to show that at the intersection of Forty-third street and defendant’s railroad, in the town of Lake, Cook county, Illinois, the defendant had a small depot or waiting room for passengers desiring to take passage on its trains at that point. To the west of, and within three feet of, the entrance door of such waiting room, is a main sidetrack, and within less than eight feet west from said main side-track is a main track known as the east main track, upon which defendant moves its trains going in a north direction, and within less than eight feet west of such east main track is a main track known as the west main track, upon which defendant moves its trains going in a south direction. Forty-third street runs east and west. On a cold and dark night in February, 1880, plaintiff and five or six other persons were inside the depot waiting for the arrival from the north of what is called the dummy train of cars, upon which they were intending to take passage south for Englewood. After waiting a few minutes, the dummy train came up to the station, stopping there across Forty-third street. About that instant of time the agent of defendant in charge of the depot, and being also the flagman there, called out that the dummy had come, or was coming, and hurried the passengers out to take the train. They immediately started on Forty-third street to get aboard the train, and the plaintiff being the first, going ahead of the others, was almost immediately struck by the express passenger train, going north at a speed of from thirty to forty miles an hour, causing the injuries complained of.
On September 16 defendant’s former attorneys withdrew from the cause, and on the same day other counsel was 'retained, and a motion, for that reason, was made for the continuance of the cause to the next term, to allow time for preparation for trial. The overruling by the court of this motion is assigned for error. The cause did not come on for trial until September 23. We see no abuse in the exercise of the discretion of the court in denying the motion, which calls for our interference.
To three of the jurors there was put by defendant’s counsel this question: “State briefly your idea of the duties of a juror." The court sustained an objection to the question, and this is assigned for error. As the statute names that persons selected by the county board to serve as jurors shall he “of sound judgment and well informed,” it is urged that the question was proper to test the soundness of judgment and extent of information of the jurors. The unnecessary protraction of jury trials has come to be a great e,vil, and one thing which contributes thereto is the needlessly long drawn out examination of jurors. The question was not proper with the view stated, nor for any purpose, and a court would fail of its duty, in the proper dispatch of business, to sit by and permit the consumption of its time by the putting of any such questions to jurors.
It is complained that the court erred in the admission and rejection of testimony. Space would not allow the notice in detail of the very many objections under this head. While in two or three instances there might, in strictness, be error in the ruling, it is of so unimportant a character that we may say, that in this respect of the admission and rejection of evidence we find no material error which should cause a reversal of the judgment. The admitted testimony, excepted to, seems to have been hardly more than a description of the location and place, and what happened on the occasion and at the time of the accident. The testimony in respect to the flagman is claimed to have been inadmissible under the declaration, as it only alleged in regard to him that defendant “failed to station, keep and maintain a flagman at said Forty-third street crossing, for the purpose of signaling persons traveling in the direction of said crossing, and warn them of the approach of any locomotive engine or other impending danger, contrary to the ordinance of the said town of Lake. ” It is claimed that this allegation did not admit of proof of what the flagman did and said on the occasion, as it would be showing misconduct of the flagman, which the' declaration does not allege. We think the testimony as to the conduct of the flagman was pertinent, as proof of the allegation of the declaration that the company failed to keep a flagman at the spot, to signal and warn of the approach of impending danger,—that the allegation means more.than merely that there was no flagman employed there.
It is complained that the court erred in instructing the jury, and in refusing to give instructions asked by the defendant. The court gave some of the instructions asked by the' defendant, and in place of others asked by defendant, and of all asked by plaintiff, gave, of its own motion, an instruction to the jury. We think this instruction very fully and fairly gave the law of the case to the jury, leaving to the defendant no cause of complaint in that respect.
One of the refused instructions asked by defendant was, that if plaintiff knew of the existence of defendant’s east main track at the place of the injury, and that locomotives and trains frequently passed along the same going north, and that plaintiff, before he went upon said track, could have looked for and seen, or have listened for and heard, the approaching train by which he was injured, and that plaintiff did not thus look or listen, and that by reason thereof he failed to avoid the injury, then the jury should find for the defendant. It is insisted this instruction should have been given, in accordance with former decisions of this court upon the subject. Ordinarily such an instruction should be given, according to what this court has often laid down to be the rule in this respect; but under the special facts and circumstances of this case, we" can not say that it was error to refuse the instruction. There was much in the peculiar circumstances of the case to go in excuse of the taking of such usually necessary precautions as are named in the instruction, before going upon a railroad track.
It is further insisted the damages are excessive. We do not see sufficient cause for the disturbance of the verdict of the jury for this reason.
The judgment of the Appellate Court is affirmed.
Judgment affirmed.
Concurrence Opinion
I concur in the decisions herein cqntained, but do not concur in all the reasons assigned in their support. As to the question of excessive damages, I regard that a question of fact which we can not lawfully determine, nor do I understand that it is intended here to pass upon that question, and so I object to the comment on that subject as liable to be taken as an intimation that we may have the lawful power to review the ruling on this question.