Chicago & Alton Railway Co. v. Pulliam

Mb Justice Baume

delivered the opinion of the court.

This is an appeal from a judgment of the Circuit Court of Sangamon County, for $1,500, rendered upon a verdict in an action on the case for personal injuries, sustained by appellee, on February 5, 1902, at a highw.ay crossing in the village of Auburn.

The declaration consists of four counts : the first charges common law negligence in the management of the train; the second charges a failure to comply with the statutory duty to ring a bell or blow a whistle eighty rods from the crossing; the third charges a violation of an ordinance of the village of Auburn, limiting the speed of passenger trains to twenty miles an hour; and the fourth count charges wilful negligence. The jury were instructed by the court to disregard the. fourth count, so it may be eliminated in the . consideration of the case. There have been two trials of .this case, the first resulting in a verdict for appellee for .$1,000, upon which a new trial was awarded.

The appellee, at the time of the injury, was eighteen years of age, well developed and weighed about 200 pounds. He had been employed for several days prior to his injury, in hauling ice from a car on a side track of appellant west of its main track, to an ice-house, which was on the other side of appellant’s main track and about eighty rods southeasterly from the highway on which he was struck. The railroad runs northeasterly and southwesterly through the village of Auburn, and is paralleled by a public highway on its easterly side. Between the highway and the main track of appellant are three or four side tracks and the track of the Pawnee railroad. The street on which the accident occurred is Monroe street, and runs east and west, and the first street north thereof is Madison street. The car of ice was midway between those two streets. The depot of appellant is located east of its main track, and between that track and the track of the Pawnee railroad, and about 150 feet north of Madison street. To the south of Madison street, the main track of appellant curves slightly toward the east, placing the depot in the concavity of the curve. Appellee had made a trip with a loaded wagon from the car to the ice house and was returning with his empty wagon, going northeasterly on the highway parallel with the tracks, and on reaching Monroe street drove west on that street across the track of the Pawnee railroad, then across three or four side tracks and the main track of appellant. He had driven on a trot to Monroe street and then slowed down to a walk and so crossed the track. It was about four or five o’clock in the afternoon of a cold dav, the ground being frozen hard. There were cars standing on the Pawnee track, which, togethér with the depot of appellant, obstructed the view of an approaching train northward on the main track of appellant. While going north on the highway toward Monroe street, the evidence tends to show that a train could be seen on appellant’s main track for a distance of half a mile. Appellee testified that after crossing the Pawnee track he looked south and then north, and as his team was on the main track of appellant, h¿ heard a short whistle and saw the train approaching about 200 feet distant; that he sprang to the forward end of the wagon and slapped the horses with the lines, but before he could clear the crossing, was struck by the train; that he heard no- whistle sound or bell ring, other than the short whistle referred to. The evidence further tends to show,, that appellee had on a cap covering or partially covering his ears; that the train of appellant, a limited passenger train, was traveling at a speed of from' forty to sixty miles an hour.

At the close of appellee’s evidence, appellant moved the court to instruct the jury to find it not guilty, which instruction was refused by the court and this ruling is assigned as error. Appellant was guilty of negligence in running its train at a rate of speed prohibited by the village ordinance. C. & E. I. R. R. Co. v. Mochell, 193 Ill. 208. Contrary t'o the contention of counsel for appellant, there is some evidence in the record tending to show that the bell did not ring continuously. Several witnesses for appellee testified that they heard no bell ring, and of these some were in the proximity of the Monroe street crossing and were first made aware of the approach of the train by hearing its “ rumbling ” or the short whistle, immediately before appellee was struck. In this state of the evidence, it would have been error for the court to have given the peremptory instruction asked. Again at the close of all the evidence, appellant asked that the same instruction be given and it was refused by the court.

There is no material controversy in the evidence, bearing upon the issues of appellant’s negligence or appellee’s want of ordinary care, save as to the ringing of the bell, continuously. The bell may have been ringing, and the weight of the evidence tends to show it was, as claimed by appellant, and yet the appellee have been in the exercise of ordinary care for his safety at and immediately prior to the time of the accident. Appellee had a right to rely upon " the performance of the duty imposed by ordinance on appellant to not run its train faster than twenty miles an hour - in the village. B. & O. S. W. Ry. Co. v. Then, 159 Ill. 535. It is apparent from the evidence that if appellant had complied with the ordinance, appellee would have crossed the track in safety. That there were obstructions to appellee’s view of the track northward, is conceded. He was riding in a lumber wagon over a frozen road and he testifies the noise made by the wagon was considerable and may have prevented his hearing the train sooner than he would otherwise have done. He had a cap pulled over his ears. He did not look to the north continuously, while approaching and crossing the tracks. The doing or failing to do any of these things, under the circumstances disclosed by the evideuce in this case, do not make him guilty of contributory negligence as a matter of law. L. H. A. & C. Ry. Co. v. Patchen, 167 Ill. 204. Whether appellee was guilty of contributorv negligence was, under the evidence, a question for the jury, and we are not disposed to disturb their finding on that point.

Counsel for appellant insist that the verdict of the jury is excessive in amount. Appellee, as the result of the accident, sustained a lacerated wound two inches deep and from seven to eight inches long on the under side of the upper part of the leg. He was confined to his bed about a month and suffered pain in the limb and in his side up to the time of the second trial, about a year after the injury. He could not perform sustained labor, involving the use of his limbs or stooping over, without inducing pain and sleeplessness at night. He has plowed some with a riding plow; tried a walking plow but could not stand it; helped at threshing about an hour; shucked corn standing, and helped at farm work generally. The scarred wound was exhibited to the jury and it was claimed that the sciatic nerve was permanently affected. The evidence of the physician who attended appellee renders it doubtful whether there is any injury to the sciatic nerve, but the fact remains that he has suffered pain in the region of the wound since it was received.

We should have been better satisfied had the verdict and judgment been for a less amount, but do not feel at liberty, under the evidence, to discount the finding of the jury and trial court as to the damages.

There is no error in instructions and the judgment is affirmed.

Affirmed.