Chicago, B. & Q. R. R. v. Reith , 1895 Ill. App. LEXIS 1092 ( 1896 )

Mr. Justice Lacet

delivered the opinion op the Court.

This was a suit brought by appellee, a minor under twenty-one years of age, to recover for injuries received at Clifton Park avenue crossing at Twenty-second street, Chicago, by being run over by appellant’s locomotive attached to a passenger train. The case was tried by a jury, verdict for appellee for $650, and the court, overruling a motion for a new trial, rendered judgment on the verdict. The appellee received considerable injuries—his skull was cracked, and he was otherwise severely bruised.

It was from July to September before he recovered from his injuries. A great many points are made by counsel for appellant, claiming a right of reversal. The negligence charged in the declaration, in the various counts, were, that at the time appellee was injured, appellant was running its train at a greater rate of speed than thirty miles an hour, allowed by the ordinance of the city, and that appellant failed to ring the bell or sound the whistle, as required by the statute, before reaching the crossing. Also, that the appellant operated its locomotive engine and cars at a high and dangerous rate of speed while approaching the crossing, and also was negligent in failing to have gates or flagmen at Clifton Park avenue crossing.

There is but little contention but that the appellant was running its train at a rate of speed of about thirty-five miles an hour, a dangerous rate in a populous city, and there is no contention that it rang a bell or sounded a whistle at the crossing. But it is contended very strenuously that appellee was guilty of contributory negligence in not keeping a pi'oper lookout for the coming train at the time of approaching the crossing where the injury occurred. The evidence, however, tehds to show that he looked out of the door of the covered milk wagon in which he was riding, when nearing the crossing, and we think the jury was justified in believing that appellee was in the exercise of ordinary care in that respect. It is further insisted that the crossing was not a public one, and that the appellant had never granted the right of way across its track • at that point, and that it had put up a sign that “ any persons crossing on it would do so at their own peril.” But the evidence tends strongly to show that Clifton Park avenue is a street, and that it was continually used by travelers, both in vehicles and on foot; that it was treated by the company the same as other streets, and some of its employes exercised more care at that place because of its dangerous nature; that both the public and the railroad company treated this as a regular crossing in the manner of its use; that it had every appearance of a street; that the crossing was planked between the rails, and the public traveled over it continually. We are of the opinion the jury was justified in finding that this was a public crossing, and that the appellant could not avoid responsibility by sticking up a sign board that it would not be responsible for injuries. The appellant insists that the court erred in not requiring the appellee to submit to a personal examination by a physician to see if they could not discover something to show that he was not as badly injured as he pretended to be. We think, however, that the court wTas justified under the law, in refusing the request. It was a discretionary matter with the court, even if it had the power to require this to be done. Parker v. Enslow, 102 Ill. 272; Joliet Street Railway Co. v. Call, 143 Ill. 177; P. D. & E. Ry. Co. v. Rice, 144 Ill. 227. We are of the opinion, under the evidence as it developed, that there were no real grounds for asking such an examination; and appellant’s affidavit that it was necessary to a proper defense, did not justify the court in requiring it. The appellee was not pretending to suffer under any secret malady. One arm was stiff, but it was improving. The bruises and scratches had all healed. The physician who testified for the appellant admitted the appellee’s injuries. The complaint that the court refused to allow appellant to show that appellee refused to submit to an examination by physicians, we do not think good grounds for reversal, even if the evidence were admissible.

The damages are small, and seem to be fully sustained by the evidence. Criticism is made on a number of appellee’s instructions, and failure to give some of appellant’s instructions. Nos. 3 and 4 of appellee’s instructions are complained of; it is said that instruction No. 3 groups together a lot of facts, claimed by appellee to have been proven in the case, favorable to his side and injurious to appellant. This instruction has reference to the crossing and its uses, etc., by the public, and we do not think it is open to the criticism made. No. 4 has reference to the sign board, stating that the plaintiff was not, as a matter of law, bound to observe the sign board, and whether he saw it or not was a question for the jury. We think the instruction taken as a whole was not erroneous; if appellee did not see the sign board, and if the crossing was used by the public as a highway, Avith the knowledge and acquiescence of the appellant, then the latter was bound to treat it as a highway. As regards the instructions refused on the part of the appellant, we are of the opinion there was no error, even if the instructions were good, as the jury was fully and completely instructed on all the necessary points and laAv of the case. Seeing' no error in the record, the judgment of the court below is affirmed.