Pennsylvania Co. v. Frana , 13 Ill. App. 91 ( 1883 )

McAllister, J.

By the first instruction for the plaintiff, the jury were directed, that if they found that the railroad track of the defendant intersected with Rorth Canal street, at a point just north of the lumber yard of Parson & Foster, then they were to determine whether or not the ordinance of the city of Chicago, in evidence, required the defendant to keep and maintain a flagman at that point, in order to give warning, etc. The only evidence respecting the locality of that point was, that it was in the city of Chicago. There was none tending to show its location, with reference to that of Western and Egan avenues, mentioned in the ordinance which provides, that: “All railroad companies whose track or tracks cross, or intersect any of the streets in the city of Chicago, east of the west line of Western avenue, or no?'th of the south line of Egan avemie, and also at all crossings of street or horse railways, shall station, keep and maintain at all times, at their own expense, at each and every of said street and railroad crossings, a flagman, whose duty it shall be,” etc.

Now, in the first place, it will be perceived, that there arises a question of construction, whether the term “crossings” embraces the case of a mere intersection as supposed in the first part of the instruction. And besides, unless the court could take judicial notice of the locality of that intersection with North Canal street, at a point just north of Parson & Foster’s lumber yard, with reference to that of Western and Egan avenues, the ordinance could not be resorted to for the purpose of establishing the legal duty of the defendant to keep a flagman at such point. We are of opinion that the court could not take judicial notice of such relative localities. •It should have been shown by the evidence. 1 Phil. on Ev. (10th Eng. and 5th Am. Ed.) pp. 635-6, and cases in notes.

Another fatal objection is, that the instruction leaves it to the jury to determine the applicability of the ordinance to the circumstances, and its legal effect, mere questions of law. A valid ordinance of a city stands on the same footing as a statute. Heland v. Lowell, 3 Allen, 407; Church v. City of New York, 5 Con. 538; Taylor v. Carondelet, 22 Mo. 105; Mason v. City of Shawneetown, 77 Ill. 533; Hopkins v. Mayor of Swansea, 4 Mees, and Welsh. 640. Where has it ever been decided, by any of the higher courts, that, in a civil case, the construction of a'statnte might properly be left to the jury? That the construction of a statute or other written instrument, is a matter of law can not be questioned. The ancient maxim is, that it is the office of the judge to instruct the jury in points of law; of the jury to decide on matters of fact. Hence it is the duty of the court to construe all written instruments; and it is the duty of the jury to take that construction from the court, either absolutely, if there be no words to be construed or explained, as words of art or phrases used in commerce, and no surrounding circumstances to be ascertained —or conditionally, when those words or circumstances are necessarily referred to them. Broom’s Legal Maxims, pp. 106-7.

The instruction submitted it to the jury, to find as a fact, that the plaintiff stopped before attempting to cross the railroad track in question. There was not only no evidence tending to show that he did stop, but he testified emphatically that he did not. That was wrong. The conclusion of the instruction was a departure from the species of negligence, which might be predicated of the facts embraced in the previous hypothesis.

The second instruction submitted to the jury the question, whether it was the duty of the defendant to keep a flagman, at the point in question, to be determined by them, generally from the evidence. If the word “ duty ” as used in the instruction, did not mean, or would not be understood by the jury, as meaning, a legal duty, or a duty cast upon the defendant by the law, then the instruction was erroneous for that reason, since the law takes no cognizance of the breach of any duty, except it be a legal one, or one which the law imposes. Curlewis v. Brond, 31 Law J. Exch. 473; Addison on Torts, 14; Ferguson v. Earl of Kinnaul, 9 Cl. and Fin. 289; Brown v. Boorman, 11 Cl. & Fin. 44.

Wharton defines a legal duty thus: “ A legal duty is that which the law requires to be done or forborne to a determinate person, or to the public at large, and is correlative to a right vested in such determinate person, or the public at large.” Wharton on Neg. § 24.

It is perfectly clear, therefore, that, if the word “ duty,” as employed in the instruction, meant legal duty, then it left a question of law to the determination of the jury, and that was error. Mitchell v. The Town of Fond du Lac, 61 Ills. 174.

For the error indicated, the judgment of the court below will be reversed and the cause remanded.

Be versed and remanded.