Weeks v. Chicago & Northwestern Railway Co. , 198 Ill. 551 ( 1902 )

Mr. Justice Carter

delivered the opinion of the court:

In reversing the judgment without remanding the cause the Appellate Court made this finding of facts: “The court finds that the injuries received by appellee were not caused by reason of the negligence of appellant, and that appellee was injured by reason of her own want of ordinary care.” The first count of the declaration charged that the plaintiff was injured by the defendant while she was crossing its tracks at a public crossing. Other counts charged that she was a passenger of the defendant, and that she was injured by reason of the failure of the defendant to use the care required of a common carrier of passengers for their safety.

Counsel for appellant have contended here, with much earnestness and at great length, that the finding of facts made by the Appellate Court is not sufficient, in view of the pleadings and the evidence, to preclude this court from finding, as a matter of law, from the evidence, that appellant was a passenger of appellee when she was injured and that appellee failed to exercise the care required of it for her safety, or, at least, that it was the duty of the Appellate Court to find, under the issues, whether appellant was such passenger or not, to the end that this court might determine whether the law had ' been properly applied by the Appellate Court to such finding of facts. We are unable to agree with counsel on this question. Let it be supposed that the Appellate Court had found that appellant was, in fact, a passenger; still, if the court further found that her injury was not caused by any negligence of appellee, but was caused by her own failure to use ordinary care for her own safety, there could be no recovery. Even as a passenger her cause of action was based on the alleged negligence of defendant, which negligence, while she was using due care (as such passenger) for her own safety, operated to cause the injury. The Appellate Court is not required to recite the evidence or to find the mere evidentiary facts, but only to find the ultimate facts. (Rogers v. Chicago, Burlington and Quincy Railroad Co. 117 Ill. 115.) In the case cited, and in Borg v. Chicago, Rode Island and Pacific Railway Co. 162 Ill. 348, the finding of such ultimate facts was not more specific, but was substantially the same as the finding in the case at bar. We have no doubt that the finding was sufficient, under the statute and the decisions of this court, upon which to base the judgment which the Appellate Court rendered.

Nor can we agree with appellant’s counsel that the facts were uncontroverted, and that from such uncontroverted facts the appellee’s liability appears as a conclusion of law. It was clearly a controverted question of fact whether appellant used due care for her own safety in crossing the railroad track in front of the approaching train; and this would be so even if she sustained the relation to appellee of passenger. It was equally a controverted question of fact whether appellee was guilty of negligence in the running and management of its train under all of the circumstances, and the power to find and settle such controverted questions of fact is vested in the Appellate Court, and not in this court; and this is so in cases even where it may appear to us that an erroneous view has been taken of the evidence by the Appellate Court. It is not, of course, meant to be said that had the evidence been such that under the decisions of this court and the'rules which have been established it would have been the duty of the trial court to direct a verdict for the plaintiff, the Appellate Court would have had the power to find the facts differently from what the record showed them to be, (if such a finding could be imagined,) and by such finding preclude a review in this court, for by the 87th section of the Practice act the judgment of the Appellate Court in such cases is made final and conclusive only “as to all matters of fact in controversy in such cause.” If there is no controversy “as to matters of fact in the case,” (and matters of fact include all inferences of fact deducible from the facts proved,) then the question of law remains for final review in this court, when properly preserved and presented, whether the judgment is erroneous or not on the uncontroverted facts in the case, — and it is only upon this view of the case that we can consider as .applicable the argument of appellant’s counsel that this court can go behind the finding of facts of the Appellate Court, and determine from the evidence contained in the record whether or not it supports the judgment of the Appellate Court. No case has ever arisen, to our knowledge, nor can we suppose that one ever will arise, where the Appellate Court has found, or will find, the facts to be different from what they were found in the trial court, where there was no controversy as to such facts nor as to the inferences of fact to be drawn from the facts proved, admitted or agreed upon. Cases have arisen where, from a state of facts agreed upon, the Appellate Court has drawn conclusions of fact different from those of the trial court, and has in consequence rendered a different judgment. (Seeberger v. McCormick, 178 Ill. 404.) But in the case at bar, as we have seen, the question whether the plaintiff was exercising proper care for her own safety in crossing the track in front of appellee’s approaching train was, under all of the circumstances, one of fact; and so, also, was the one whether appellee’s engineer, seeing appellant starting across the track in front of his engine, was guilty of negligence in not bringing his engine under such immediate control as to prevent the collision. It is not denied that he gave signals of warning, nor that the plaintiff persisted in her attempt to cross, thinking, no doubt, that the train was the one she intended to take, and that it would approach the station slowly and come to a stop there, — an erroneous conclusion of her own. The power to finally determine the facts in such a case is vested in the Appellate Court, and we cannot review such finding. There is no contention that the judgment of the Appellate Court is not the proper one on the facts as found, and it appearing that the finding made is legally sufficient, no other question is open for review in this court.

The judgment must be affirmed.

Judgment affirmed.