Chicago G. W. Ry. Co. v. Mohan , 88 Ill. App. 151 ( 1900 )

Mr. Justice Windes

delivered the opinion of the court.

Appellant claims, first, that the preponderance of the evidence is in its favor as to the' speed of the train, the ringing of the bell at the crossing, and as to the plaintiff’s contributory negligence; second, that there was error in refusing each of the eight refused instructions; and, third, that proper evidence was excluded; and that by reason of each and all of these claims the judgment should be reversed.

As to the matter of the speed of the train, the ringing of the bell and the contributory negligence of the plaintiff, we are of opinion, after a careful and critical reading of the evidence in the light of the exhaustive arguments of appellant’s counsel, that each of these matters is a question properly and peculiarly for the consideration of the jury. As will be seen from the statement preceding this opinion, there is a conflict in the evidence as to the speed of the train and the ringing of the bell, and we can not set out and discuss all the various elements and circumstances shown by the evidence without unduly extending this opinion. We are inclined to the xdew that the preponderance of the evidence all'considered justified the jury in finding that the speed of the freight train exceeded twelve miles per hour, and thus that the city ordinance in evidence and counted upon in the declaration, limiting the speed of freight trains in the district where the accident happened to twelve miles per hour, was violated. And in this connection it is important to note that each of the appellant’s witnesses who testified on this subject, do not vary in the least, placing the speed of the train at “ between ten and twelve miles an hour.” This justified the jury in believing that the train was going at least at the rate of twelve miles an hour, which was the extreme limit of the ordinance. The evidence on behalf of the plaintiff was to the effect that the speed was “ very near fifteen miles an hour,” that the train was- “ going or running fast,” that it was “ running very fast.” The evidence as to the distance the train ran after the trainmen saw the boy, was that it went from 400 to 500 feet, or about a block, and that it was stopped as soon, as possible. The jury having seen the witnesses and heard them testify, and having observed the manner of giving their testimony and their appearance, were in a better position to judge of their credibility than we are. The trial judge having had the same advantages and having apparently agreed with the jury by overruling the motion for new trial, we do not think the verdict should be disturbed in this respect.

As to the ringing of the bell, only four witnesses testify; the engineer, that he did not know whether the bell was rung or not, and that the fireman was feeding the fire about the time of the accident; and the witness, Jennie Styler, that it was not rung; and on behalf of the appellant, the fireman testified that he did ring the bell. The switchman on the rear of the train said he did not know whether the bell was rung or not. We can not say, from anything appearing in the record as to the evidence on this point that the jury was not justified in finding that the bell was not rung, and therefore that the appellant violated not only the city ordinance offered in evidence, but also the statute of this State, both of which were counted upon in the declaration.

As to the question of the contributory negligence of the boy, we are of opinion that reasonable, intelligent and fair-minded persons might well have reached different conclusions. There is a conflict in the evidence on this point. In a letter, written four days after the accident by the engineer, to appellant’s division superintendent, he said, in speaking of a conversation with the boy after the accident, “ I asked him what was the matter ? Did he not see us coming? and he said‘No.’” Nellie Bussell testified that the boy walked out “just as the passenger train got by. * * * I saw him walk right in front of the freight train, behind the passenger, right after the passenger train Avent by. * * * I did not see him before the passenger train went by; just as the passenger train passed I saw him Avalk up.”

Jennie Stvler testified:

“Just as soon as the passenger train went by, the boy came right in there. I did not see the freight at all until it almost struck the boy. * * * I suppose the passenger train had just got by, and then, just as the freight train got to the crossing the boy attempted to go by on the sideAvalk; just as I saw him he was right on the track and the engine struck him just asT suav him.”

On behalf of appellant the switchman on the front footboard of the engine testified :

“ He started to run across ahead of us. I hollered at him and was spellbound. I thought Ave Avould probably kill him, and he just got by, but not far enough'to clear the engine, and we hit him on the hip or side, knocked him down a little, and he picked.himself up and started to go off. * * * He cut diagonally across ahead of us and tried to beat us across there. * * * When the engine of the freight, on which I was standing, reached the crossing, the end of the passenger train had cleared Forty-first street by two or three" car lengths. * * * I am sure that the end of the passenger train had cleared Forty-first street crossing, before the engine of the freight on which I Avas standing reached Forty-first street. * * * He was hit by the beam and had almost cleared the track when he Avas struck. Just as he was leaving the track the beam of the engine caught him. When I first suav him he was running south. At the time I first suav him, when' he got on the track, he ran diagonally to get ahead of us.”

The same witness, in speaking of a conversation he had with the boy immediately after the accident, testified :

“ I asked the boy why he tried to get ahead of us on the crossing. He said he had a parcel to deliver to somebody down the street some place, and thought he could beat us across. * * * He told the engineer that he was in a hurry and he thought he could beat us across or get across ahead of us. * * * When I first’saw him he was on the north side of the track, probably twenty-five or thirty feet north of the north rail of the north track. The north rail of the north track is about twelve to fifteen feet from the north rail of the south track on which we were running. * * * When I first saw the boy the foremost part of our engine was between thirty-five to forty feet from the west side of the street. I did not know at what rate of speed the boy was running. * * * When the rear of the passenger train passed our engine we were about two and one-half car lengths west of Forty-first avenue. A car length is thirty to thirty-three feet. The boy was on a smart run when I first saw him.”

The fireman testified that when he first saw the boy the engine was “ between three and four car lengths west of the crossing. When I first saw him he was running toward the tracks. He was on the sidewalk. There is only one sidewalk on that street, and it is on the west side of the street. He was running down the street and I was ringing the bell and he got perhaps ten feet from the track on the south main line and he started to run diagonally with the train. Then he got struck.”

In view of this evidence^ we think that the question as to whether plaintiff was in the exercise of ordinary care for his own safety was properly submitted to the jury, and that it can not be said that a finding by the jury that he was in the exercise of ordinary care, considering all the circumstances surrounding him at the time, was manifestly against the evidence. C. & N. W. Ry. Co. v. Hanson, 166 Ill. 628; R. R. Co. v. Kelsey, 180 Ill. 530; R. R. Co. v. Nowicki, 148 Ill. 33; R. R. Co. v. Smith, 180 Ill. 453; R. R. Co. v, Foster, 74 Ill. App. 387; Offut v. Columbian Exp’n, 175 Ill. 472.

In the Hansen case the court say:

“ It seems to us impossible that there should be a rule of law as to what particular thing a person is bound to do for his protection in the diversity of cases that constantly arise, and the question what a reasonably prudent person ■would do for his own safety under like circumstances must be left to the jury as one of fact.”

In the Smith case, supra, Avhich is in principle somewhat similar to the case at bar, the court say :

“ As the train approached, he (the injured person) was standing between the track and another train passing in the opposite direction, the space between them being only about ten feet, and it was a question to be determined by the jury whether it Avas carelessness for him to undertake to cross the track rather than remain in that more or less dangerous position.”

What Ave have said sufficiently disposes of the ruling of the court in refusing the first of appellant’s refused instructions. The contention that it was error to refuse the second,'third, fourth, fifth and sixth of appellant’s refused instructions, is not, in our opinion, tenable. First, because the instructions refer to the fifth, fourth, third, second and first counts of the declaration, Avhereas the case was tried upon the original five counts as well as upon the first, second, third, fourth, fifth and seventh counts.of the plaintiff’s amended declaration; and, second, because there Avas at least one good count about which there can be no question in the declaration ■ (the seventh) to which the evidence Aims applicable, and if it Avas error for the court to refuse to instruct the jury that the plaintiff could not recover under the other counts, it was harmless. Coal Co. v. Scheiber, 167 Ill. 539; R. R. Co. v. Weiland, 179 Ill. 610-14; Swift v. Rutkowski, 82 Ill. App. 113; affirmed, 182 Ill. 18-24.

Moreover, appellant, by nineteen instructions given at its request, at the same'time as the refused instructions numbers one to eight, inclusive, Avere presented, being the fourteenth to thirty-second instructions, both inclusive, asked the jury to consider the issues under these several counts. By so doing it should be held to have waived the instructions asking the court to direct the jury there could be no recovery under these counts.

The seventh instruction was properly refused, because it tells the jury, in substance, that certain acts of the plaintiff, if they believed they were proven, were negligence. This was improper, because what was negligence, as we have seen under the facts of this case, was for the jury.

The eighth refused instruction was properly refused, because it tells the jury that certain acts of the plaintiff did not constitute due care on his part. Moreover, by numerous instructions given by the court and presented at the same time as this instruction, the questions of care and negligence, under every possible view of the case, were submitted to the jury.

Objection is also made that the court excluded proper evidence. It is sufficient to say that in the respects complained of, no exception was taken by the appellant to the exclusion of the evidence.

Considerable argument of appellant’s counsel is devoted to the credibility of certain witnesses, and also as to the action of the court in permitting counsel for plaintiff to call a number of witnesses as to the mental condition of the plaintiff before and after the accident at a stage in the case when six witnesses had already testified on that subject, none of whom were experts, counsel for appellant stating that he would not introduce any testimony on that subject. We deem it unnecessary to consider in detail the evidence of the several witnesses referred to on the matter of their credibility, as that was a question peculiarly for the jury. As to the action of the court in declining to limit the number of plaintiff’s witnesses as to mental condition, we think there was no error.

. No objection has been made to the amount of the judgment, and being.of the opinion that there is no material error in the record, the judgment is affirmed.