Chicago Terminal Transfer Railroad v. Korando , 1906 Ill. App. LEXIS 775 ( 1906 )

Mr. Justice Smith

delivered the opinion of the court.

The testimony of appellee and of the witnesses on the part of appellee shows very clearly that nearly every day switching was done, and cars were moved from the switch track at Fifty-first street in the same manner in which it was done at the time of the accident, and that appellee had been familiar with that work and the manner in which it was done, for many years. Knowing that she could not at that time cross the main tracks she crossed the switch track, and either stood at the end of the empty car at the south side of Fifty-first street, as her witnesses testify, or, as she testifies, having stood just east of the car between the switch track and the main track, turned and was walking west past the end of the car to go to the shelter of a fence or building west of the switch track, when she was struck by the car. Appellee knew that these cars were to be moved, and that they might be moved at any moment. She also knew that the locomotive was at such a distance from her that she could not hear, under the conditions, its movements, or any signal that it might give. But she took no precaution against any movement of the cars whatever. She either stood so close to the car, or walked so close to it, that it was impossible for her to escape being struck by the car in case it moved toward the north from any cause.

The preponderance of the evidence, we think, shows that she was standing close to the end of the car in order to protect her child, which she was carrying in her arms, from the high wind. Mrs. Katschke testified that appellee stopped to let the train go by, meaning the train on the main track, and while she was standing there the cars knocked her down and she was lying between the cars which knocked her down and the cars on the other track.

The witness Szymanski, called by appellee, testified that appellee was not under the cars but . between the tracks; that when she was struck she was facing east. The witness Kaczowski, also called by appellee, said that appellee was standing on the sidewalk right at the end of the car when she was struck. Both of these witnesses heard the bumping of the cars as they were started.

These witnesses were disinterested and from their testimony and that of appellee it appears quite satisfactorily that appellee was standing close to the end or corner of the car facing east so that her child would be sheltered from the wind, not only by the car itself, but by her own body. If she was standing so close to the car, or if she was walking past the end of the car and so near to it that she could not avoid being struck by it' if the car was moved toward the north, and having knowledge as she had of the customary manner of handling the cars at that place, appellee was not in the exercise- of due care and caution for her own safety, which contributed to the injury received by her. Under such a state of facts appellee cannot recover. C., M. & St. P. Ry. Co. v. Halsey, 133 Ill. 248; L. S. & M. S. Ry. Co. v. Clemens, 5 Ill. App. 77; Thorsell v. Chicago C. Ry. Co., 82 Ill. App. 375; L. S. & M. S. Ry. Co. v. Hession, 150 Ill. 546; C. T. T. R. R. Co. v. Helbreg, 124 Ill. App. 113.

Appellee was asked on the trial, “Were there any gates?” meaning, as the record shows, were there any gates at Fifty-first street. The answer was “No, sir.”

The presence or absence of gates at the crossing at the time of the injury to appellee was not .material 'to the issue in this case for the obvious reason that appellee had come down the right of way of appellant from Fiftieth place to Fifty-first street, and reached the latter street where she would not have been compelled to pass through the gate if it had been there. She took a position inside of the place where the gate would properly be located, in a place of danger. The presence or absence of the gate therefore had nothing whatever to do' with the injury. This testimony, though not supported by any ordinance, introduced an element before the jury which tended to show an omission on the part of appellant of something which the jury might have understood it was required to do. It was error to admit the evidence.

In our opinion the court also erred in admitting appellee’s wrapper in evidence without any proof that the garment had remained in the same condition at the time it was offered in evidence’as it was immediately after the accident. The rents in the garment at the time it was put in evidence might have been made subsequently to the accident for all that the evidence shows. Its admission without preliminary proof as to its condition immediately after the accident was clearly erroneous.

For the reasons indicated the judgment is reversed with a finding of fact.

Reversed with finding of fact.

Mr. Justice Baker dissenting.