Lake Shore & Michigan Southern Railway Co. v. Bodemer

29 N.E. 692, 139 Ill. 596, 1892 Ill. LEXIS 1191

• Court: Illinois Supreme Court
• Decided: January 18, 1892
• Status: Published

Opinion

Mr. Chief Justice Magruder

delivered the opinion of the Court:

It is assigned as error, that the trial Court refused, at the conclusion of the testimony on both sides, to instruct the jury, as then requested by the defendant, to find for the defendant. The position of the appellant is that the deceased was a trespasser upon its right of way, attempting to cross the tracks where there was no public crossing. It has been held that, where a trespasser upon the tracks of a railroad company is injured, the company is not liable, unless the injury was wantonly or wilfully inflicted, or was the result of such gross negligence as evidences wilfulness. By withdrawing the first, second, third and fourth counts from the consideration of the jury and submitting the case upon the fifth count, the court assumed that the deceased was a trespasser at the time of his death, and required the jury to find that the injury was inflicted wantonly and wilfully; or with such gross negligence as showed wdlfulness.

The evidence of the plaintiff tended to show that there were public street crossings over appellant’s tracks at 26th, 25th and 24th Streets; that the passenger train, which struck the deceased, was travelling at the rate of from 30 to 35 or 40 miles an hour; that there were no gates where 26th Street crossed the tracks; that the tracks were laid upon what was called Clark Street, running directly south from 22nd Street; that there were two road-ways along the east and west sides of the tracks; that there were no fences between these roadways and the tracks; that the public drove along these roadways, running north and south, with wagons, and people passed up and down upon them; that wagons drive up to the tracks upon these road-ways between 26th and 25th Streets,, and unload the cars, standing there, on the tracks; that “the wagons do not drive in there between the tracks except when they are unloaded;” that there are houses on the east side of the tracks; that upon the west side of the tracks, fronting upon the strip of ground called Clark Street and consisting of the two road-ways and the tracks between them, are a saloon, a rag-shop, carpet shop, stone yard, packing house and ice-house, all located between 26th and 25th Streets; that many people pass there, going across the tracks to the rag-shop and packing house, every day; that no bell was rung on the engine of the passenger train, which killed the deceased; that a whistle was blown twice, giving two short, sharp sounds when the engine of the passenger train was about 5 or 10 feet from the deceased, or, as some of the witnesses express it, that the deceased was struck at the same time when the whistle was blown; that the deceased when struck was thrown into the air several feet; that the engine which struck him did not stop until it reached 24th Street, about two blocks north of the place of the accident; that three boys, who were on an empty freight car, standing on the tracks about a car’s length south of 25th Street, witnessed the killing of the deceased, and one of them saw him on the track before he was struck.

We are unable to say, that there was not evidence enough to justify the court in leaving it to the jury to say, whether or not the boy was killed by the wanton and wilful negligence of the company. The company introduced no evidence whatever to contradict the testimony of .the plaintiff, except for the purpose of showing that the strip of land occupied by its tracks between 25th and 26th Streets was its private right of way, and not a public street. In answer to written questions calling for special findings, submitted at defendant’s request, the jury found that the tracks were straight for a considerable distance towards the south from the place of the accident; that a locomotive approaching that place from the south could be seen at a distance of 1000 feet; that the deceased did not step from behind the freight train immediately in front of the engine of the passenger train, but that he was about 125 feet from the engine when he stepped upon the track. The jury answered, "we cannot say,” to the question, “Did the engineer have time to stop his train after seeing deceased and before striking him ?”

It was the duty of the engineer to exercise ordinary care to avoid striking the deceased, even if he was a trespasser. If it was impossible to stop the train in time, it may yet have been possible to have warned the plaintiff of his danger in time to enable him to get out of the way. The engineer “must use all the usual signals to warn the trespasser of danger.” (2 Shear. & Bed. on Neg. see. 483—4 ed.) If the boy was 125 feet from the engine when he stepped upon the track, did the engineer see him ? It was for the jury to answer this question. The company did not produce the engineer to say that he did not see the deceased, nor did it introduce any evidence upon that subject. It is not necessary to show by affirmative testimony, that the engineer’s look was directed towards the boy. It is -sufficient, if it appear from all the circumstances, that he might have seen him by the exercise of reasonable diligence and ordinary prudence. Why did he not see him ? The track was straight and clear and unobstructed for a long distance. Others saw him. The boys on the freight car were distant more than 125 feet, and one of them saw the deceased “standing * * * on the track, right between the rails, not quite in the middle.”

If the engineer saw the boy when he was at a distance of 125 feet, did he give him the signal of danger as soon as he •ought to have given it ? One witness, standing on 26th Street •and waiting for the freight train to pass, swears that he heard the whistle blow at the crossing; his testimony tends to show, however, that the engine had passed 26th Street before the whistle blew, and how far it had passed does not appear. But three witnesses swear that, when the whistle sounded, the engine was near enough to strike the boy, or only 5 or 10 feet from him. It was for the jury to weigh this evidence and consider its bearing. If they believed from the evidence, that the engineer saw the boy, and thereafter waited until the sound of the whistle could do no good, when, by whistling as soon as-the deceased came upon the track, he could have warned him in time to enable him to escape, they were justified in finding for the plaintiff.

The jury were authorized to look at the conduct of the engineer in the light of all the facts in the case. It has been said: “What degree of negligence the law considers equivalent to a wilful or wanton act is as hard to define as negligence itself, and in the nature of things, is so dependent upon the particular circumstances of each case as not to be susceptible of general statement. ” (2 Thompson on Negligence, 1264, sec. 53.) In I. C. R. R. Co. v. Godfrey, 71 Ill. 500, we said that where a trespasser is injured, the railroad company is liable for “such gross negligence as evidences wilfulness.” We said the same thing in Blanchard v. L. S. & M. S. R. R. Co. 126 Ill. 416. What is meant by “such gross negligence as evidences wilfulness ?” It is “such a gross want of care and regard for the rights of others as to justify the presumption of wilfulness or wantonness,” (2 Thomp. on Neg. 1264, sec. 52.) It is such gross negligence as to imply a disregard of consequences, or a willingness to inflict injury. (Deering’s Law of Negligence, sec. 29.) In Harlan v. St. L., Kansas City & N. R’wy Co. 65 Mo. 22, it was said: “When it is said, in cases where plaintiff has been guilty of contributory negligence, that the company is liable, if by the exercise of ordinary care it could have prevented the accident, it is to be understood that it will be so liable if, by the exercise of reasonable care, after., a discovery by defendant of the danger in which the injured party stood, the accident could have been prevented, or if the company failed to discover the danger through the recklessness or carelessness of its employees, when the exercise of ordinary care would have discovered the danger and averted the calamity.” Contributory negligence, such as that of a trespasser upon a railroad track, cannot be relied on “in any case where the action of the defendant is wanton, wilful or reckless in the premises, and injury ensues as the result.” (Bouwmeester v. G. R. & I. R. R. Co. 63 Mich. 557; Central R. R. Co. v. Denson, 84 Gra. 774.) “Under the rule conceding the right of a free track to a railway company, in the event of an injury to a trespasser upon its line it can be held liable only for an act which is wanton, or for gross negligence in the management of its line which is equivalent to intentional mischief.” (1 Thomp. on Neg. 449.) Although the plaintiff is guilty of negligence, he can recover, if the defendant could have avoided committing the injury by the exercise of ordinary care. (Deering’s Law of Neg. sec. 31.)

Let these principles be applied to the facts of the case at bar. The train, which committed the injury was travelling at the unusual speed of 35 or 40 miles an hour in the crowded city of Chicago; over street crossings; upon unguarded tracks, so connected with a public street and so apparently the continuation of a public street as to be regarded by ordinary citizens as located in a public street; along a portion of such tracks where persons were known to be passing and crossing every day; in conceded violation of a city ordinance as to speed; and without warning of the approach of the train by the ringing of a bell. This conduct tended to show such a gross want of care and regard for the rights of others as to justify the presumption of wilfulness. It also tended to show, that, if there was failure to discover the danger of the deceased, such failure was owing to the recklessness of the company’s servants in the management of its train.

We are of the opinion that the court committed no error in refusing to instruct the jury to find for the defendant. (C. & A. R. R. Co. v. Gregory, 58 Ill. 226; I. and St. L. R. R. Co. v. Galbreath, 63 id. 436.)

Appellant assigns as error the admission of testimony, that persons were in the habit of passing across the tracks at the place where the accident occurred. In cases where persons have travelled along a railroad right of way as a mere footpath, using it for their own convenience, and where there was no evidence of any assent of the railroad company thereto •except its non-interference with the practice, it has been held "that such persons are to be regarded as wrong-doers and trespassers, and that a mere naked license or permission to enter or pass over an estate will not create a duty or impose an •obligation on the part of the owner to provide against the danger of accident. (I. C. R. R. Co. v. Godfrey, supra; Blanchard v. L. S. and M. S. R. R. Co. supra; I. C. R. R. Co. v. Hetherington, 83 Ill. 510.) But in each of such cases it was conceded, that the place where the injury occurred was upon the right of way of the railroad company, and that the party making use of such right of way knew it to be the exclusive property of the railroad company for the purpose of running its trains. But, in the case at bar, the testimony of the plaintiff tended to show, that the tracks, at the point where the deceased was killed, were laid in Clark Street, a public street of the city of Chicago. There were travelled road-ways constantly in use on both sides of the tracks, and several witnesses testified that the strip of land, which embraced the tracks in the middle •and the road-ways on the sides, was called Clark Street, and regarded as a public street.

When the evidence on the part of the plaintiff had closed, the defendant introduced proofs tending to show that the strip in question was 120 feet wide; that 100 feet in the middle of the strip, where the tracks were laid, was railroad right of way,, but that 10 feet on each side of said 100 feet belonged to the public, and were used by the public. The strip in question was used partly by the public and partly by the railroad company. The proof also tended to show, that for years the railroad tracks had been laid in Clark Street as far south as 22nd Street, though they had subsequently been moved somewhat to the westward. The course of the tracks southward was such as to appear to be a mere extension of Clark Street. There was no fence, or other mark of separation, to designate what portion of the strip, 120 feet wide, belonged to the public and what portion belonged to the railroad. There was •proof tending to show, that, before any tracks were laid at all, there had been a foot-path in use from 22nd Street as far south as 25th Street. As has already been stated, it also •appeared that persons were allowed to come up to cars standing upon these tracks for the purpose of loading and unloading their wagons; and one witness stated that wagons drove upon ■or between the tracks for such purpose.

The books draw a distinction between cases, where there is a mere naked license or permission to enter upon or pass over • an estate, and cases where the owner or occupant holds out any enticement, allurement or inducement to persons to enter upon or pass over his property. (Sweeney v. Old Colony and Newport R. R. Co. 10 Allen, 368). “A mere passive acquiescence by an owner or occupier in a certain use of his land by others involves no liability; but, if he directly, or by implication induces persons to enter on and pass over his premises, he thereby assumes an obligation that they are in a safe condition, suitable for such use; and for a breach of this obligation he is liable in damages to a person injured thereby.” (Idem.) Though it is unnecessary to go so far as to hold in this ease, ■that the facts hereinbefore recited amounted to an implied inducement on the part of the railroad company to the public to pass over its tracks, it is nevertheless quite manifest, that the surroundings were such as to give to the tracks the appearance of being located in a public street; and all the eir-^ cumstances of the situation were such as to lead those, who-had occasion to frequent that neighborhood, to believe that, the tracks were in a public Street. Hence, we are inclined to the opinion, that the court did not err in admitting proof of the passing of persons across the tracks, for the reason that such proof was admitted before the defendant proved that the-tracks were on its right of way, and while as yet the evidence-of the plaintiff tended to show, in the absence of contradictory proof, that the tracks were in a public street, or what was-called and regarded as a public street. If the tracks were in a public street, the company was unquestionably under obligations to “provide against the danger of accident” to those-rightfully thereon. . After the defendant introduced its proof, it did not move to exclude the particular testimony of the-plaintiff as to the passing of persons over the tracks. Whether, therefore, after the ownership of the company had been shown, persons, who had been proven to be in the habit of crossing ■ the tracks under the belief that they were crossing a public street, were or were not such wrongdoers, as to relieve the-company from liability for injury to them, is a question which need not be further considered.

The appellant further objects that the court should have excluded the ordinances as to the speed and the ringing of a bell, as these ordinances are not described in the fifth count-of the declaration. (I. C. R. R. Co. v. Godfrey, supra.) The-ordinance as to speed was described in the third count, and the ordinance as to the ringing of the bell was described in the fourth count, and they were properly admitted under these counts at the time when they were admitted. After defendant introduced its proof, it made no formal motion to exclude the-ordinances, though it objected to the reading of them to the-jury in the argument of plaintiff’s counsel, and asked the court to instruct the jury to disregard them as evidence. We do not think that the action of the court in this particular, even ■if it be regarded as technically erroneous, could have done-the defendant any harm, for the reason that counsel for defendant admitted in his opening statement to the jury that the city ordinance prohibited the running of trains in the city at a greater rate of speed than ten miles an hour, and also admitted that the train which killed the deceased was travel- ■ ling at a greater rate of speed than ten miles an hour; and for the further reason, that the ordinance as to the ringing of a bell was not read at all in the hearing of the jury, and counsel for defendant allowed testimony, that no bell was rung, to be admitted without objection.

Furthermore, the action of the court in withdrawing from the consideration of the jury all the counts except the fifth was exceedingly favorable to the defendant. We do not think that the j ury ought to have been told, that there could be no recovery under the third count, which described the ordinance as to speed.

Even if it be admitted that the deceased was a trespasser, the third count was sufficient to authorize the proof under it of such gross negligence as evidences wilfulness. The word, “reckless,” implies heedlessness and indifference. If an engineer, knowing that persons are accustomed to cross a track between the streets of a large and crowded city, drives his engine forward “recklessly,” that is to say, with indifference as to whether such persons are injured or not, and at a rate of speed “greatly ” in excess of that limited by a city ordinance, an injury thereby inflicted upon one of such persons, even though he be a trespasser, will be regarded as the result of “such a gross want of care and regard for the rights of others as to justify the presumption of wilfulness or wantonness.”

The views already expressed dispose of appellant’s objections to the refusal of instructions numbered 3, 4, 5 and 8 asked by the defendant. Refused instruction No. 1 was not based upon the evidence. It submitted to the jury the question whether or not the deceased was using the tracks as a play ground. We find no evidence in the record tending in the slightest de-gree to show, that the tracks were used for any such purpose. Refused instructions numbered 9,10,11,12, 15 and 17 merely related to the degree of care which the deceased was required to exercise, but, as the case was- submitted to the jury upon a declaration which charged wanton and wilful negligence, it made no difference to what extent the deceased was guilty of a want of care. Contributory negligence on the part of the plaintiff is no excuse for wanton and wilful negligence on the part of the defendant. Refused instructions numbered 24 and 25 assumed the existence of. facts about which there was a controversy, and each singled out and gave due prominence to a single circumstance as characterizing the defendant’s conduct, instead of leaving it to the jury to pass upon such conduct upon a view of all the facts and circumstances in the case.

The judgment of the Appellate Court is affirmed.

Judgment affirmed.

Craig and Bailey, JJ., dissenting.