Haecker v. Chicago & Alton R. R. , 91 Ill. App. 570 ( 1900 )

Mr. Justice Horton

delivered the opinion of the court.

After all the testimony had been introduced, the trial court, at the instance of the attorney for defendant in error, directed the jury to return a verdict of not guilty.

We understand the rule in this case to be, that when the testimony in a case on trial before a court and jury is such that it would be the duty of the court, if a verdict should be returned in favor of the plaintiff, to set the same aside for want of sufficient evidence to support it, that then it is the duty of the trial court upon motion to that effect duly made, to instruct the jury to return a verdict of not guilty.

The evidence in this case is overwhelming to the effect that the unfortunate little girl had crossed safely over the tracks of defendant in error to the space between such tracks and the tracks of the Illinois Central railroad. Also that she turned to go back across the track of defendant in error, where she was injured. Why she attempted to return can not be positively determined. It may he that she became confused and started to return to her mother, who had not yet crossed the track in question. But whatever the reason may be which induced Katie to turn back, it seems to us certain that her doing so was the immediate and proximate cause of her injury. If it be conceded, as contended, by counsel for plaintiff in error, that it was negligence on the part of defendant in error to have suspended the operation of the gates referred to in the above statement, while the river bridge was broken and in use for' pedestrians only, still it must be conceded that the failure to operate such gates was not the proximate cause of the injury complained of.

The contention that the bell upon the engine was not rung is not supported by the evidence. That bell was operated or rung by steam. The fact that witnesses state that they did not hear it, or notice that it was ringing, is of little value as against the positive statement of other witnesses that it was ringing, in connection with the undisputed' fact that it was operated by steam, or as it might almost be said, it operated automatically.

The further contention that the engine of defendant in error was running at a high rate of speed—a rate prohibited by ordinance of said city—is untenable. The testimony is overwhelming to the contrary.

The testimony' is so conclusive that if the case had been submitted to the jury, and the jury had found, either that the bell was not ringing, or that the engine ivas running at a rate of speed prohibited by ordinance, it would have been the duty of the trial court to set aside such finding.

There were a large number of persons passing over this crossing at the time plaintiff in error was injured. Neither of the two little girls, or of the other persons, who were with plaintiff in error, was injured. Nor is there any testimony to the effect that any of them narrowly escaped injury or was in any imminent .danger.

There does not seem from this record to be any reason-" able doubt that the plaintiff in error, after safely crossing the track in front of said engine, turned to go back across the track and that her doing so caused the injury.

It is not thought to be necessary to discuss the question, presented by counsel for defendant in error in this court as well as in the court below, as to whether there is a fatal variance between the allegation in the declaration and the evidence, because the judgment of the trial court must be affirmed for the reasons above indicated.

The judgment of the Superior Courtis affirmed.