191 N.E. 684 | Ill. | 1934
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *236
On September 23, 1927, the deceased, Burry J. McGann, a switchman employed by the Cleveland, Cincinnati, Chicago and St. Louis Railway Company, was injured at the crossing of the railroad tracks and Court street, (State highway No. 17,) in the city of Kankakee. He died as a result of the injuries he received in a collision between the switch engine on which he was riding and the automobile of the defendant in error (herein called the defendant). Suit was brought by the plaintiff in error, Harry S. Streeter, as administrator (herein called the plaintiff). The declaration contained fifteen counts. At the first trial a verdict of $3500 was returned in favor of the plaintiff. A new trial was granted. At the second trial the jury returned a verdict in favor of the plaintiff for $10,000. Judgment was entered, and on appeal to the Appellate Court for the Second District the judgment was reversed and the cause was remanded. (Streeter v. Humrichouse,
At approximately 4:45 in the afternoon of the day of his injury Burry J. McGann was riding on the foot-board at the end of the tender of a switch engine on the main track of the railway company. This engine was backing north from the yards south of Court street. Two other members of the switching crew were with him. A man named Tooper was on the foot-board at the west, a man named Dufresne was in the middle and McGann on the foot-board at the east, and all were at the northerly end of the tender. The engine was moving at from fifteen to twenty-five miles per hour. Court-street crosses the tracks at the point in question in an easterly direction. It is paved with an eighteen-foot concrete slab. The defendant was traveling east on Court street in her Dodge coupe. Her son John, then seventeen years of age, was driving the coupe.
Plaintiff urges three grounds for the reversal of the judgment. The first is that the trial court erred in allowing the motion to direct a verdict as to those counts of the declaration which charged willful and wanton injury. The second is that the trial court improperly admitted in evidence the rule of the railway company in a suit in which it was not a party. The third is that the trial court erred in the giving and refusal of instructions. *238
The first decision of the Appellate Court reversed the judgment and remanded the case. Since that was not a final decision it was not reviewable by this court. (Jones v. Young,
With reference to the first contention, the rule is that in passing upon a motion to direct a verdict, if, when all the evidence is considered, with all reasonable inferences drawn from it in its aspect most favorable to the party against whom the motion is directed, there is a total failure to prove one or more necessary elements of the case, the motion should be allowed. (Williams v. Consumers Co.
Whether a personal injury has been inflicted willfully or wantonly is a question of fact to be determined by the jury if there is evidence to support the allegation, (Heidenreich v. Bremner,
What were the facts disclosed by the testimony of plaintiff's witnesses in the case before us? Joseph E. Tooper testified that he saw the Dodge coupe approaching when it was approximately one hundred feet west of the tracks. In his opinion it was traveling at thirty-five miles an hour. It went over the crossing at about the same rate of speed. He said there was no obstruction to the view. His testimoney was corroborated by M.L. Dufresne that the engineer blew the whistle four times for the crossing, and the engine bell was, and had been, ringing. Dufresne saw the Dodge coupe when it was approximately one hundred and ten feet west of the tracks. He stated that it was traveling at from thirty to thirty-five miles per hour; that it did not slow down, and that it swerved to the northeast to get around the switch engine. While Tooper was attempting to get out of the way of the automobile his legs were struck by it and his shins were skinned. Haswell Kibbons, a filling station employee, testified that he heard the engine whistle for the crossing. When it stopped whistling it was about fifty feet south of Court street and the Dodge coupe was one hundred feet west of the crossing. It was traveling at from thirty to thirty-five miles an hour and did not slacken its speed until after it had crossed the tracks. He was filling the gas tank of an automobile at a filling station on the north side of Court street, one hundred feet west *240 of the railroad. He also testified: "There was no car east of me or between me and the railroad crossing south of the pavement at the time of the accident." A civil engineer, Robert D. Gregg, testified that the distance west from the railroad track to the first building on the south side of Court street was eighty-eight feet. This was a garage, which stood sixty-two feet south of the paved part of Court street. The collision occurred during the daytime. Tooper also testified that by reason of McGann's position on the engine he could not have seen the defendant's automobile approaching without leaning far out from the engine. However, the other two men, Tooper and Dufresne, were in plain view of the defendant. The defendant's son did nothing to avoid the collision, except, perhaps, to swerve his mother's car to the left. He, himself, denied swerving the car.
We cannot agree with the defendant that the speed of the Dodge coupe was the only evidence to support the charge of a willful and wanton injury. We cannot agree that evidence of speed, alone, is insufficient to warrant submitting that question to the jury. In Balsewicz v. Chicago, Burlington andQuincy Railroad Co.
The trial court therefore erred in allowing the defendant's motion to direct a verdict as to the first, sixth, ninth, thirteenth and fourteenth counts of the declaration.Jeneary v. Chicago and Interurban Traction Co.
Plaintiff in error next contends that the trial court erred in admitting in evidence rule 4079 of the railway company. In substance, the special plea set up a rule forbidding employees of the railway company riding on the foot-board of a moving locomotive. Rule 4079 forbade employees riding on the leading foot-board of an engine when not switching on a switching or yard lead-track. When this rule was offered in evidence no objection was made on the ground of a variance between it and the rule pleaded. The objection that was made was that it was incompetent, irrelevant and immaterial; that the rule was not made for the benefit of the defendant; that it does not tend to prove or disprove any issue in the case, and that a private rule of the railroad company promulgated for the regulation of its employees is a matter between the company and its employees, and under no circumstances could it be competent evidence in this case as tending to show contributory negligence on the part of the decedent. Defendant contends that it was proper to show knowledge of the existence of the rule on the part of McGann, the rule itself and the fact of its violation, for the purpose of showing contributory negligence. *242
If the rule was admissible to prove contributory negligence it could have been introduced under the plea of the general issue and need not have been specially pleaded. We are left, then, to determine the propriety of its admission in evidence over plaintiff's objection. Such private rules, under proper circumstances, are admissible in cases between master and servant. The ground of admissibility is that they are in the nature of an admission on the part of the employer and are admissible against it as such when it is a party to the case. Where admitted in evidence against an employee it is also on the ground that they constitute an admission, but it is not sufficient to show the existence of a given rule and the breach of it alone. It must also appear that such breach was the proximate cause of the injury for it to amount to contributory negligence. In Carter v. Sioux City Service Co.
There is a further reason why this rule was not properly admitted in evidence. The fact that plaintiff's intestate was violating the rule at the time he was injured will not bar plaintiff's right to recover unless the breach of the rule in some way proximately contributed as a cause of the accident and injury. Upon the same reasoning we have held that where the violation of an ordinance or statute is relied upon as a defense, such violation must be shown to have been the proximate cause of the injury. (Lerette v. Director General,
Turning to the instructions, the fifteenth instruction told the jury that if the death of the decedent was caused through "accident purely" they should find the defendant not guilty. There was no evidence that McGann was injured through accident, alone, not coupled with negligence, and it was error to give this instruction.
It is not necessary to consider in detail the objections made to the given and refused instructions. The case will have to be re-tried and the instructions must take into consideration the willful and wanton counts of the declaration. It would serve no purpose to extend this opinion by a further discussion of these instructions.
For the reasons indicated, the judgments of the Appellate and circuit courts are reversed and the cause is remanded to the circuit court of Kankakee county for a new trial.
Reversed and remanded. *245