Chicago & Grand Trunk Railway Co. v. Gaeinowski

Appellate Court of Illinois

Chicago & Grand Trunk Railway Co. v. Gaeinowski

54 Ill. App. 276, 1894 Ill. App. LEXIS 96

DecidedJune 4, 1894

StatusPublished

This text of 54 Ill. App. 276 (Chicago & Grand Trunk Railway Co. v. Gaeinowski) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Chicago & Grand Trunk Railway Co. v. Gaeinowski, 54 Ill. App. 276, 1894 Ill. App. LEXIS 96 (Ill. Ct. App. 1894).

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Opinion

Mr. Justice Gary

delivered the opinion of the Court.

The appellee is the administrator of his son, who was killed at the age of nine years and five months, by a locomotive of the appellant, at a grade crossing of the railroad and Loomis street, near Forty-ninth street, in the city of Chicago, on the twenty-fifth day of March, 1891.

There was such evidence as justified the jury in finding that as a long freight train was crossing Loomis street westward, a locomotive met it upon the crossing backing eastward; that the gates were not down; that the track upon which the train was, was north of the track upon which the locomotive was, and the boy, from the south side of the railroad, was going north on Loomis street upon an errand for his mother; that with no notice that the locomotive was approacliing, he went toward the freight train to cross the railroad tracks as soon as the freight train should be out of his way, and in so doing was caught by the locomotive and killed. The only dispute as to any of these circumstances is whether the gates were down, and the verdict of the jury is final on that.

The court permitted, over the objection and exception of appellant, testimony that the flagman was often drunk, after it was testified that he was drunk at the time of the accident. If this was error, we think it was cured.

Later the.court struck out the testimony, and later still, the appellant put in considerable testimony that the flagman was a sober, industrious man. This conduct of the appellant, in following up an abandoned issue, should be regarded as a waiver of the point, if the original introduction was wrong, which we need not decide.

The declaration alleged as next of kin of the deceased the father, mother, two brothers and five sisters. Only the father and mother were proved, though both of them were witnesses. But if they had been the only next of kin, the cause of action would have been the same. It is only necessary to prove part of the declaration, if that part makes a case. Chi., R. I. & P. R. R. v. Clough, 134 Ill. 586; L. S. & M. S. R. R. v. Hundt, 41 Ill. App. 220.

It is not to be assumed that the jury considered loss sustained by any next of kin not proved to exist, and the amount of damages as assessed by the jury can not be questioned. Bradley v. Sattler, No. 5144. March term, 1894. Post.

All the law contained in the fifth instruction, refused, was in the second given. The judgment is affirmed.

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Mr. Justice Gary

delivered the opinion of the Court.

The appellee is the administrator of his son, who was killed at the age of nine years and five months, by a locomotive of the appellant, at a grade crossing of the railroad and Loomis street, near Forty-ninth street, in the city of Chicago, on the twenty-fifth day of March, 1891.

There was such evidence as justified the jury in finding that as a long freight train was crossing Loomis street westward, a locomotive met it upon the crossing backing eastward; that the gates were not down; that the track upon which the train was, was north of the track upon which the locomotive was, and the boy, from the south side of the railroad, was going north on Loomis street upon an errand for his mother; that with no notice that the locomotive was approacliing, he went toward the freight train to cross the railroad tracks as soon as the freight train should be out of his way, and in so doing was caught by the locomotive and killed. The only dispute as to any of these circumstances is whether the gates were down, and the verdict of the jury is final on that.

The court permitted, over the objection and exception of appellant, testimony that the flagman was often drunk, after it was testified that he was drunk at the time of the accident. If this was error, we think it was cured.

Later the.court struck out the testimony, and later still, the appellant put in considerable testimony that the flagman was a sober, industrious man. This conduct of the appellant, in following up an abandoned issue, should be regarded as a waiver of the point, if the original introduction was wrong, which we need not decide.

The declaration alleged as next of kin of the deceased the father, mother, two brothers and five sisters. Only the father and mother were proved, though both of them were witnesses. But if they had been the only next of kin, the cause of action would have been the same. It is only necessary to prove part of the declaration, if that part makes a case. Chi., R. I. & P. R. R. v. Clough, 134 Ill. 586; L. S. & M. S. R. R. v. Hundt, 41 Ill. App. 220.

It is not to be assumed that the jury considered loss sustained by any next of kin not proved to exist, and the amount of damages as assessed by the jury can not be questioned. Bradley v. Sattler, No. 5144. March term, 1894. Post.

All the law contained in the fifth instruction, refused, was in the second given. The judgment is affirmed.

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