Ohio & Mississippi Railway Co. v. People , 1888 Ill. App. LEXIS 180 ( 1889 )

Green, P. J.

By the amendment to the act in relation to fencing and operating railroads, in force July 1, 1879, it is provided: “Every railroad corporation shall cause its trains to stop on their arrival at each station advertised by such corporation as a place for receiving and discharging passengers upon and from such trains, a sufficient length of time to receive and let off such passengers with safety: Provided, all regular passenger trains shall stop a sufficient length of time at the railroad station of county seats to receive and let off passengers with safety.” And for a violation of any of the foregoing provisions it is further provided: The railroad corporation guilty of such violation “shall be liable to the person aggrieved for all damages done to person or property by reason thereof, with costs of suit, and in addition thereto, said corporation shall forfeit the sum of not less than 8100, nor more than 8500, to be recovered in an action of debt, in the name of the poojde of the State of Illinois for the use of any person aggrieved, before any court of competent jurisdiction.” No question is made on behalf of appellant that the proof was not sufficient to establish its liability for a violation of one of the provisions of the foregoing act as alleged in the declaration, except it is claimed that it does not appear by the evidence the train on which Locey was a passenger was a regular passenger train within the meaning of the statute, and that he was not shown by the evidence to have been a person aggrieved.

The evidence introduced on behalf of appellee and appeltant leaves no doubt in our judgment as to the real character of the train in question. It was a through train, running daily between Cincinnati and St. Louis on defendant’s railway, with regular passenger train, engine, passenger coaches and sleeping car, equipped in all respects as a regular passenger train; it was provided with conductor, engineer, fireman and brakemen; it was given its number and was run on its own schedule time,,carried passengers and baggage, made stops for passengers, and was advertised by appellant as one of its regular through passenger trains, running daily. The public was notified apparently in every way possible that this train was a regular passenger train, and persons were thereby induced to so regard and use it. The appellant reaped all the benefit of patronage so invited, and must be required to perform the duty imposed upon it by the statute or forfeit the penalty to be paid for violating its provisions. In a case on all fours with this, C. & A. R. R. Co. v. The People, use, etc., 105 Ill. 657, it is said in the opinion: “The train in question was operated in the same manner as any other passenger train on the road. It carried passengers and baggage as did other trains. It ran upon the official time-tab'e ol the company as other trains did; indeed, the only difference between this'and the other passenger trains on the road was that the other two trains stopped at all stations, while this did not. On account of this difference, can the train, within the meaning of the statute, be regarded other than a regular passenger train? We think not.” Again it is there said, “ where a train was engaged in carrying passengers, running regularly every day upon an advertised time-card of the company, equipped as all other passenger trains are, we are satisfied such a train was designed by the Legislature to fall within the terms of the act, call regular passenger trains.’ ”

From all the evidence in this record, the train in question at the time Locey was a passenger thereon, was a regular passenger train, within the meaning of the act, and as defined by the Supreme Court in the case cited, and it is quite as clear that George Locey, for whose use this suit was brought, was a person aggrieved by the omission of duty on the part of appellant as averred in the declaration. He was anxious to go to his home in Carlyle at once, as requested in the message he received. He asked appellant’s agent at Sumner what train would carry him to Carlyle at the earliest possible time, and by direction of the agent waited for and got on board of train Ho. 3, as the proper train for him to take. The conductor also told him it was the right train for Carlyle, and took his ticket and informed him he might have to change trains to stop at Carlyle but he would let him know at Shattuek. On reaching that place he saw the railroad office was closed. The train did not stop at the station but passed to the water tank, and then he was in the dilemma of either walking back before daylight of a winter morning and wait outside of a closed office until the train following should arrive, or remain on train Ho. 3 and be carried past his destination thirty miles, and pay his fare ba.ck. He chose the latter alternative as perhaps the least dangerous, though more expensive; he was doubtless disappointed by being delayed in his arrival home, and suffered anxiety during the delay, and in addition thereto incurred extra expense, all in consequence of appellant’s omission to perforin its legal duty of transporting him to Carlyle and there stopping its train a sufficient time to let him off with safety. The offer of the conductor to furnish him with a pass to Carlyle on the train Ho. 5, which he declined to take, did not absolve the appellant from the performance of its duty. Locev had already paid for transportation to that place, and had the right to demand he should be taken there upon the train he then was a passenger. To hold he was not aggrieved by the omission of appellant to perform its duty would require us to utterly disregard the evidence, which establishes the fact he was a person seriously and illegally aggrieved by reason of such omission of duty.

It was not error for the court below to modify defendant’s first instruction and refuse to give the fourth and fifth instructions requested on its behalf. The modification of its seventh instruction was erroneous, and some of the instructions given on behalf of plaintiff were not strictly accurate, but taking the instructions as given, as a series, we apprehend the jury were not misled thereby as to the law, or that the verdict rendered was the result of misdirection in that regard by the court; but on the contrary it was fully sustained and warranted by the evidence. Perceiving no 'error in the record requiring the reversal of the judgment appealed from, it is affirmed.

Judgment affirmed.