McNulta v. Ensch

24 N.E. 631, 134 Ill. 46

• Court: Illinois Supreme Court
• Decided: March 31, 1890
• Status: Published

Opinion

Mr. Chief Justice Shope

delivered the opinion of the Court:

The first point made by the plaintiff in error is, that the court erred in giving plaintiff’s first instruction. The reason assigned is, there was no evidence upon which to base it. The instruction is as follows:

“The court instructs the jury, that if they believe, from the evidence, that the plaintiff was a passenger on the train of the defendant on the night of the 14th of January, in the year 1888, and that while the plaintiff was so a passenger, the said train stopped at the station which was the destination of-plaintiff, but that said train did not stop at said station fór a reasonably sufficient length of time to allow the plaintiff to safely get off of said train at said station, and that said plaintiff was injured by reason of said train not stopping at said station for a reasonably sufficient length of time to allow said plaintiff to safely get off of said train, then, and in that case, a prima facie case of negligence is made out against the defendant, and the burden of explaining such prima facie case-of negligence is thrown upon the defendant, provided the jury further believe, from the evidence, that the plaintiff, at the time he received the injury, (if the jury believe, from the evidence, that the plaintiff did receive injury,) was acting with due care and- caution.”

There was evidence that the train made two stops before it. reached the crossing of the Illinois Central railroad: First, at or near the platform of Starne’s Station, though but momentarily, and again started with a violent jerk; and then, some fifty or sixty yards farther, and east of the platform, where ample time was given to passengers to get off. It was-shown by the evidence that this train, which is called the “lightning express,” was not scheduled or required to stop at Starne’sStation, but it was required by law to stop within eight hundred feet of the crossing of the Illinois Central railroad, which was shown to be five hundred and two feet east of the platform at Starne’s Station. There was ample evidence, if the jury believed it, that this lightning express train, going east, sometimes stopped at the platform at Starne’s Station, sometimes stopped before reaching it, and often east of the same, and that passengers were in the habit of getting on and off the train at the place where it stopped before reaching the intersection of the two roads. In this case there was evidence that the engineer whistled before reaching the platform at Starne’s Station, and "slacked the speed of the train until the coach in which the plaintiff was riding reached said platform, when the train came to a stop. It is true that there was a conflict in the evidence on this point. Those of the witnesses testifying to-the stoppage of the train at the platform say it was a very short one,—only a moment or a second,—when the train started again with a sudden, violent jerk, so strong as to almost throw down those standing on their feet in the cars. The plaintiff testified, that knowing the train would stop there for a very short time only, and that there were a good many passengers to get off there, he went to the rear end of the car next the smoking car, and sat down on the steps, so as to be able to get off before the rush of the other passengers came, and he, as well as others, testified that the train came to a full stop in front of the platform. He was to some extent corroborated also in this, from the fact that .his jug, after the injury, was found sitting on the platform. He testified that he stepped one foot on the platform, and, before moving the other from the step of the car, the train started suddenly, and with such force as to throw him down, and that the next car struck him as he fell.

We agree with counsel for the plaintiff in error that this instruction must have referred to this first, momentary, stopping of the train, and not to its stopping east of the platform, as there was no evidence that the train did not then remain long enough to let all the passengers off. While it may be and is true that the train was not bound to stop at the platform to discharge its passengers bound for- that station, it might stop at any place within eight hundred feet of the railroad intersection, as those in charge saw fit; and while it did not undertake to discharge passengers at the platform, it must be borne in mind that the plaintiff could not know what point those in charge of the train would select as the place for him to get off, except by their acts and conduct. As was said by the Appellate Court: “The conductor or brakeman announced the station in the usual manner, just before it was reached, and if, following that announcement, and in about the usual time afterwards, it actually stopped at the station platform, passengers would be justified in presuming it was for the purpose of discharging them there, and in proceeding to get off; and if in the act of gettihg off while it was so stopped, and with due promptness and care, the plaintiff was thrown off and injured by the starting up of the train, that presumption would be conclusive upon the defendant. He could not avoid liability for such injury by stopping the train again a few rods further on, and then giving ample time for discharging the passengers. The jury must have found it did so stop,” etc.

We think there was sufficient evidence upon which to predicate the instruction. So far as the rights of the plaintiff were concerned, the place where the train first stopped,—that is, the platform, (if it be found that it did stop at the platform, as has necessarily been done both by the trial and Appellate courts,)—must be regarded as the place where the defendant undertook to discharge him, there being no announcement to the contrary. Taking the evidence for the plaintiff as true, the acts and conduct of those in charge of the train justified the plaintiff in acting upon the assumption and belief that the train was there stopped to enable him to alight therefrom.

The defendant asked this instruction, among others:

“5. The court instructs the jury, that the only issue for their determination, under the evidence before you, is that presented by the second count of the plaintiff’s declaration, which avers that the train did not stop a sufficient length of time to permit the plaintiff to get off in safety; and the court instructs you, that the legal effect of this averment is that said train did not stop a sufficient length of time at the point where the defendant undertook the discharge of the passengers for that place, and to entitle the plaintiff to recover, this averment must be proved as alleged; and if the jury believe, from the evidence, that said train did stop at the place where the defendant undertook to discharge the.passengers at that place, a sufficient length of time to permit -plaintiff to get off in safety, then plaintiff can not recover, and your verdict must be for the defendant, even though you may further believe, from the evidence, that before said train reached the place where the defendant undertook to discharge said passengers, it made a momentary halt, and that plaintiff, in attempting to get off during said momentary halt, was thrown from the train and injured.”

From what has preceded, it is apparent that this instruction contained an erroneous proposition. The second count of the declaration charges that it was the duty of the defendant to stop the train at Starne’s Station long enough for the plaintiff to safely get off, and that he failed to do so, and that is the place where the plaintiff got off the train. He was not on the train when it stopped long enough for the passengers to get off. When the train stopped.at the station, under the circumstances already stated, the plaintiff had the right to presume that the defendant proposed to discharge his passengers at that point, and to act upon that assumption, and the stop at the platform should have been long enough to allow the plaintiff to alight in safety. The evidence tended to show that the ordinary signal was given for the station, and also, as found by the Appellate Court, the station was announced in the cars, in the usual' manner, by either the conductor or brakeman, and the defendant could not shield himself from liability to plaintiff, who started to get off immediately following such Signal and announcement when the train came to a full stop at the platform, by showing that those in charge of the train intended to go further- east before discharging the passengers, of which no notice was given. The stop at the platform, as to the plaintiff, under the peculiar facts of this case, might have been properly regarded by him as the stoppage of the train at the point where it was intended to let off the passengers. Having by the acts and conduct of his servants justified the plaintiff in attempting to get off the train, the duty of the defendant then attached to stop his train a sufficient length of time to enable the plaintiff to reach the platform in safety. His duty to the plaintiff, whom he had induced to believe that the train had reached the point at which he was to depart therefrom, was in respect of the place where the train first halted, and not in respect of the place where it finally stopped.

It is complained by the plaintiff in error that the jury must have disregarded this instruction, and it follows from what we have said, that if they did disregard it, no legal wrong was done the defendant. Although no tickets were sold at Springfield for Starne’s Station, to be used on this train, the plaintiff and some twenty others were received upon this train, to be carried to Starne’s Station, and there was evidence tending to show that they paid and the conductor received their fare. On collecting fare to Starne’s Station, it became the duty of the defendant’s servants to notify the passengers so paying that the train would not stop at that station, or to carry them to such station and then give .them sufficient time to get off in safety. It may be that if the passengers knew that the train did not stop at the platform of the station, but at some convenient point near by, and before reaching the Illinois Central crossing, and took passage with that understanding, there would be no obligation to stop at the platform. The proofs tend to show that for several years before the accident the lightning express train received passengers at Springfield to be carried to Starne’s Station, and it was well understood that the conductor of the train was in the habit of collecting fares to that place.

The plaintiff in error also claims there was no evidence that he was operating the railroad at the time of the injury, or that the persons in charge of the train were his servants, or that he was a common carrier. Railway companies are by law common carriers of passengers and freight. (Toledo, Wabash and Western Ry. Co. v. Roberts, 71 Ill. 542; Parmelee v. McNulty, 19 id. 556.) The proofs show that the Wabash, St. Louis and Pacific railway was being operated in carrying passengers before and at the time of the plaintiff’s injury. This objection was not made in the trial court. No plea was filed putting in issue the representative character in which the defendant was sued. In a suit against an administrator, unless lie denies the representative capacity in which he is sued, it will he admitted. (3 Chitty’s PI. 940, note k.) A judgment against the receiver creates no'personal liability, and it is to be so entered as to be enforced only out of the funds of the corporation properly chargeable to him in the capacity of receiver. The fact, therefore, that the receiver made no objection to the suit against him in his representative capacity, before or at the trial, ought to preclude him from urging that he was not rightly sued. Plaintiff in error, in his brief, says: “The point is not that there is no evidence that defendant was receiver of the railway company, as the Appellate Court seems to suppose, but the point is, there was no proof that the defendant was operating the road at the time.” If McNulta was the receiver of the road at the time of the injury, it must be presumed, in the absence of any plea or denial, that he was in discharge of the duty imposed upon him by that relation to the railroad. It will not be necessary for us to further discuss that question, for it was purely a question of fact. In no way has the plaintiff in error preserved the question in the record, so as to present it as a matter of law. The Appellate and trial courts having found the facts adversely to plaintiff in error, it is not open for our consideration.

It is lastly objected, that the judgment of the circuit court is erroneous, in that it is a personal judgment against McNulta. It is as follows:

“ John Ensch v. John McNulta, Receiver of the Wabash, St. Louis and Pacific Railway Company.

“And now come the parties, by their respective attorneys, and the court, hearing the arguments of counsel upon the defendant’s motion for a new trial, and being fully advised, overrules-and denies the same. It is therefore ordered and adjudged by the court, that the plaintiff have and recover of and from the defendant the sum of $2500, the damages aforesaid, as well as its costs by him herein expended, and that execution issue therefor.”

We are of opinion that the judgment is erroneous in the respect urged. No judgment could be rendered against McNulta individually, and no award of execution could be made. It-must be entered against him as receiver, and be made payable out of the funds held by him in that capacity, in the due course-of the administration of his receivership. Beach on Receivers, 715, and authorities cited.

This error will necessitate the reversal of the judgment of' the circuit court, but as no error had intervened up to and including the overruling of the defendant’s motion for a new trial, no occasion exists for awarding a venire facias de novo. In Alwood v. Mansfield, 33 Ill. 452, the court found that the’ verdict of the jury was sustained by the evidence, but that an. improper order had been entered thereon by the circuit court, and the proper entry of judgment was made in this court. (See, also, Pearsons v. Hamilton, 1 Scam. 415.) In the subsequent case of Storing v. Onley, 44 Ill. 123, the better practice-is said to be, to reverse the judgment and remand the causewith instructions to the circuit court to enter the proper order. Without reference to other adjudications, the practice has been, in cases where the verdict of the jury was correct, and no error-has intervened for which it should be set aside and a new trial awarded, to reverse the judgment improperly rendered upon the verdict, and to enter the correct judgment in this court, or to remand the cause, with instructions, to the trial court to enter the proper judgment. We find in this record no other-error than that indicated, and we regard it the better practice to remand the cause, with instructions.

For the error in the entry of the judgment, the judgments of the Appellate and circuit courts are reversed, and the causéis remanded to the circuit court, with instructions to enter-judgment upon the verdict of the jury in conformity with the foregoing ruling, together with the costs of that court.

Judgment reversed.