Atchison, T. & S. F. R. R. Co. v. Elder , 50 Ill. App. 276 ( 1893 )

Opinion of the Court,

Gary, P. J.

On the 29th day of May, 1892, the appellee, a child four years old, was a passenger, being carried by the appellant on a train toward Chicago. About 7:30 p. m., while the train was approaching Lemont from the south, it was thrown from the track by a cow and calf being there, and, as a result, the boy, as the evidence fairly shows, was ruptured.

On the 6th day of June, 1892, in pursuance of a compromise between the father of the boy and the representatives of the railroad, this suit was instituted, attorneys employed by the railroad preparing the papers, and forthwith was submitted to the court, without a jury, and without evidence, and a judgment entered for the appellee for $250, pursuant to the compromise.

Though the father is next friend, by whom the boy appears in the suit, no estoppel, if there be any, applicable to him, affects the boy, and on these facts alone, without imputing any wrong motive or bad intention to anybody, if it appears that $250 was not a fair and adequate compensation to the boy for his injuries, the court was right in setting aside the judgment at the same term, while it still had control. An infant is not bound by the admission of anybody. The cases are generally in equity, but the rule is equally applicable at law. Hitt v. Ormsbee, 12 Ill. 166, is one of numerous cases,

An amended declaration was filed, the case submitted to the court and the result was a finding and judgment for $2,500, from which this appeal was taken. That the injury sustained by the boy will attend him through life is, from the evidence, not improbable, and the judgment can not be disturbed on account of the amount of the damages.

In the first case in this State in which the duty of passenger carriers was discussed, it was said that “ they are bound to the utmost diligence and care, and are liable for slight negligence. Proof that defendant (in the appeal) was a passenger, the accident, and the injury, make a prima facie case of negligence.” Galena & C. N. R. R. v. Yarwood, 15 Ill. 468.

Later cases have only in more words emphasized the rule. That the most diligence and care would have adopted precautions that would have prevented that cow and calf being in the way, is obvious to any reader of the testimony. It is not necessary that we should recite it, nor that we should discuss the alleged errors in law when the result is so clearly right.

Statutory regulations as to fences, etc., do not measure the duty of a railway company toward its passengers; it must do whatever is fairly possible to insure their safety.

The rule that courts will not reverse for error when on the whole case justice is done, though somewhat doubtful in its application, and always unsatisfactory to the losing party, is constantly acted upon by courts everywhere.

The judgment is affirmed.