Toledo, St. Louis & Kansas City Railroad v. Crittenden , 1891 Ill. App. LEXIS 293 ( 1891 )

Pleasants, J.

In October, 1889, appellee was thrown from a wagon at Oakland, a small station on appellant’s road in Coles County, and for the injury so received recovered judgment for $500, on the claim that the team was made to run away by negligence of appellant’s servants on its locomotive in whistling and letting off of steam.

At this place the road funs northeast and southwest. The depot is on the north side, with a platform twelve to fifteen feet wide extending twenty-five feet west of it. There was a side track and Y on the south side.

The accident occurred a little after four o’clock in the afternoon. Appellee was in a wagon which had been driven by her husband, containing household goods for shipment to Charleston, and was backed up to the platform west of the depot to be unloaded. A west bound freight train had stopped east of the depot, to take on a car from the Y. The engine, having left it there, backed in by the side track on to the Y, pushed the car out onto the main track, and then by a running switch dropped it onto the train.

It was while the engine was making this drop that the team suddenly started to run. The car was taken something over a hundred feet west of the platform, to give it sufficient momentum, and the engine on its return was going quite fast when it passed it. The claim is that when about or nearly abreast of the team a short, shrill whistle was given and steam let off, one or both of which caused it to run away.

The evidence on the part of the plaintiff, consisting of the testimony of herself, her husband, her brother, and an affidavit for continuance as to what another witness if present would testify to, is somewhat confused and conflicting as to where the engine was with reference to the team, when the whistle was blown and the steam let off; but there is some, clearly tending to show it was in front of the platform or depot. They differed in opinion also as to what frightened the horses. “ The engine, ” and “ the chugging ” of the cars coming together, were separately and distinctly stated as the cause by some, though the whistle, and the letting off of steam, which only were alleged in the declaration—-were also severally stated by others.

But the conductor, who had got off the train and was on the platform watching the operation of switching, the engineer, the fireman and the brakeman, swear positively that the whistle was not blown nor steam let off in the course of it; that there was no occasion for either, and that nothing was done that was not necessary, and all in the usual manner. Besides these, the roadmaster, the station agent and Mr. Bicketts, a resident of Charleston who was never in the employ of the company, say they did not hear any, and think they would have heard it.if there had been any whistling or letting off of steam. The conductor, brakeman and Mr. Bicketts say that in reversing the engine to drop the car there was a sharp exhaust, which is an escape from the top of the stack, and that may have scared the team, but it was unavoidable in the work to be done.

Since it was for the jury to determine what was in fact done by the trainmen and whether, it was negligent, we might not feel justified in interfering with their verdict, if these were the only questions involved and they had been properly instructed, though we might think it to be against the weight of the evidence.

It appears that the team in question did not belong to appellee’s husband. He had driven it three or four times about the farm but never about the railroad. He knew there was switching being done, and must have known there would be “ chugging, ” reversing and exhausting near the platform. When he had unloaded partly, the agent told him to come into the office to give his name and a list of the goods to be billed. He had left his wife alone in the wagon, and said he couldn’t leave his team, but he did and went in. It was while he was so gone that the horses started. There was evidence tending to show that he left the lines wrapped around the seat, which was but a loose board, and that she did not attempt to take hold of them until the team started, when “ she grabbed for them and got hold of one line,” as her brother states it. Whether she had any experience as a driver, or judgment as to management of horses, was not shown; nor whether she was strong or weak, timid and nervous, or otherwise, except as indicated by her action on that occasion. She was apprehensive of danger from the situation and asked her brother, standing near and in charge of another team, to hold hers, but he said it wouldn’t run. Her own account of her conduct is: “I had hold of the lines, and when they started to run I suppose I let go and commenced hallooing.” Dr. Montgomery, who treated her for her injury, testified that she said her husband and brother were to blame; that they went off and left her alone, and that she told them not to go; that she so stated in substance, repeatedly.

notwithstanding this evidence the court gave the following instruction : “ If you believe from the evidence that the plaintiff was holding the team while the goods of her husband were being unloaded on the platform of the defendant for shipment, and if the jury further believe from the evidence that the defendant, by its employes, unnecessarily, either by whistling or escape of steam, in close proximity to the team, frightened the team and caused it to run off and injure the plaintiff, then she is entitled to recover.”

Appellee and the team were in charge of her husband. Therefore as between herself and the railroad company, a want of ordinary care on his part, contributing to the injury, would have the same legal effect as if it were her own, and bar a recovery, unless the injury were wilfully committed by the company. City of Rock Island v. Vanlandschoot, 78 Ill. 485. And whether there was such a want on his part was a question for the jury. Did he exercise ordinary care in leaving her alone in the wagon, as he did ? Was she a fit person to hold the team, unhitched, under the circumstances? The evidence referred to fairly raised that question. But the court told the jury, as matter of law, that if she was “ holding the •team,” it was enough on that point. Had she been a child of three years, the case might have differed in degree but would not in kind.

And again, from the fact, if it were a fact, that the employes of the defendant did “unnecessarily” blow the whistle or let off steam in close proximity to the team, it would not follow, necessarily, or as matter of law, that this was wrongful negligence.

Thus on both of these material questions of fact, whether there was ordinary care on the part of plaintiff, and negligence on that of defendant, the instruction invaded the province of the jury, and for that error the judgment will be reversed and the cause remanded.

Reversed and remanded.