Ohio & Mississippi Ry. Co. v. People , 1893 Ill. App. LEXIS 34 ( 1893 )

Opinion of the Court,

Scofield, J.

Appellee sued appellant in the Circuit Court of Lawrence County, for violation of the statute requiring the engineer ©r fireman ©f every locomotive engine to ring a bell or sound a whistle before crossing a public highway. Appellant demurred to the amended declaration, and the court overruled the demurrer, whereupon the appellant elected to stand hy its demurrer, and judgment was rendered in favor of appellee for fifty dollars and costs. The question thus presented for our consideration concerns the sufficiency of the declaration, which contains four counts, charging in sub- • stantially the same terms four several violations of the statute. The time of the violations, as stated in the counts, was November 30, 1893, the place was the intersection of appellant’s road and a public highway at or near the southwest corner of section five, the southeast corner of section six, the northeast corner of section seven and the northwest corner of section eight, in township three, range thirteen west, in Lawrence County. Many grounds of demurrer were assigned, but only one of them is presented and insisted upon in the argument. It is urged that the “declaration is uncertain and insufficient in that it in no way describes the engines or trains referred to therein, not stating whether they were freight or passenger trains, at what time or times of the day or night the alleged engines or trains passed over the crossing in question, in which direction the said engines and trains were running along the line of defendant’s railway, neither in any other way does it apprise the defendant of what it will be required to meet on the trial.” It seems that a case between the same parties for a similar violation of the statute was before this court at the February term thereof, 1893, in which the objections as above set forth were raised by the railway company and were held by this court to be untenable. This holding is decisive of the question now presented unless onr views have been modified since the filing of the opinion in that case.

We have carefully reconsidered the question, and find no reason for a modification of our former holding. The case of the C. & A. R. R. Co. v. Howard, 38 Ill. 414, which is relied upon by appellant as “ full authority ” for its contention in this case, holds no more than that the intersection of the railroad and public highway should be more particularly designated than by a -mere statement that it was somewhere within the county. The exact point of the intersection of the railroad and public highway is set forth in the declaration before us, and the Howard ease is not authority in support of the proposition that the pleader should state the nature of the train, the direction in which it was running, and the hour of the day or night in which • it passed the crossing. “ To require such particularity would render prosecution of this character exceedingly difficult, and almost .operate as a repeal of the statute.” C. & A. R. R. Co. v. Adler, 56 Ill. 344. A case in point is St. L., J. & C. R. R. Co. v. Kilpatrick, 61 Ill. 457, in which the ground of action was, that the railroad company opened the close in which the plaintiff’s horse was confined, whereby the horse escaped, went upon the company’s track and was killed by one of its trains. A demurrer to the declaration having been overruled, and the company having elected to stand by its demurrer, Kilpatrick’s damages were assessed and judgment was rendered in his favor therefor. The Supreme Court in affirming the judgment, say: “ The principal cause of demurrer appears to be the supposed want of an allegation of time and place, when and where the injury was committed. We think a fair reading of the count affords no room .for this objection. All of the acts complained of, are referred to the first day of December, 1887, on which day the railroad was being operated by the employes of defendant, and the place is distinctly averred to be at the county aforesaid. “ In the declaration before us, all of the omissions of duty complained of, are referred to the 30th day of November, 1892, and the place, under the ruling in the Howard case, is particularly given.”

The .judgment of the Circuit Court will be affirmed.