Chicago & Alton Railroad Co. v. Logue

Mr. Justice Phillips delivered the opinion of the court: At the close of plaintiff’s testimony an instruction was asked that the jury should find for the defendant, which the court refused to give, and to which ruling exception was taken. A similar instruction was asked at the close of defendant’s testimony, and was also refused by the trial court. It is urged that a consideration of the refusal to give this instruction presents to this court the question as to whether there is evidence in the record proving the negligence charged in the declaration, or whether the parents of the child killed were guilty of such contributory negligence as would prevent a recovery. These questions are those of fact, and are settled by the judgments of the circuit and Appellate Courts. This court has heretofore held in a long line of authorities, that the consideration of the refusal of the trial court to give an instruction of this character only brings before the court the question as to whether there was evidence of the plaintiff tending to establish the facts ■alleged in the declaration, and whether all the evidence in the case, with all the legitimate and natural inferences which the jury can justifiably draw therefrom, is wholly insufficient, if credited, to.sustain a verdict for the plaintiff. Lake Shore and Michigan Southern Railway Co. v. Richards, 152 Ill. 59. It is said that the negligence of the parents contributed to the death of the child in this case. .The rule is well settled in this State that in an action brought by the parents or personal representative, the negligence of a parent of a child of tender years which contributes to an injury resulting is imputable to the child, and if established will prevent a recovery; and this is especially true where the parent is present with the child at the time of the injury, and the negligence consists of some act or omission on the part of the parent. (Ohio and Mississippi Railway Co. v. Stratton, 78 Ill. 88; Toledo, Wabash and Western Railway Co. v. Grable, 88 id. 441; Chicago City Railway Co. v. Wilcox, 138 id. 370.) The question as to the contributory negligence of the parent, however, is as much one of fact as though the injury had been to the adult and he was the plaintiff in the suit. The judgments of the trial and Appellate Courts are conclusive as to whether there was negligence on the part of the defendant and contributory negligence on the part of the parents of a child of tender years, in all cases where the negligence is a question of fact and not of law. It is only the province of this court, then, to determine whether or not there was evidence tending to show negligence on the part of the defendant and due care and caution on the part of the parents of the child. A court would have no hesitancy in saying that it would be negligence per se for a person of mature years to sit on a railroad track in front of a rapidly approaching train, but no such negligence could be imputed to a child of only twenty-one months of age. It is a disputed and contested question as to whether, immediately preceding the accident, the engineer of appellant was giving proper attention to the control and management of his engine, whether the proper signals were given at the crossing, and, if such signals were given, whether the life of the child could have been saved. It is not necessary to enter into a full discussion of the evidence in the case on those questions. It is sufficient to say that a careful examination of the record shows that there was such evidence tending to show these facts that the question should have been submitted to the jury for their finding, and it was not error for the trial court to refuse to give the instruction asked at the close of plaintiff’s testimony. On the question of contributory negligence of the parents, it appears that the mother had left the child in the kitchen of the house for a period of two or perhaps three minutes, while she passed into an adjoining room to give attention to another child. While thus engaged for this short time the child wandered from the room and sat down on the track. The mother at once started in search, but discovered it too, late to save its life. In City of Chicago v. Hesing, 83 Ill. 204, which was a case where a child less than four years old wandered from the house of its parents and came to its death by drowning in a ditch filled with water immediately in front of the parents’ residence, this court said: “No negligence is imputable either to the deceased or his parents. The child was too young to observe any care for its personal safety, and its parents omitted no reasonable care for its protection. The parents of the child are laboring people, and had to be constantly employed. When the accident occurred the father was at work in a lumber yard not far distant, and the mother was engaged in her usual domestic affairs. The law has not required that persons in their station in life shall keep a constant watch over their children, nor can the want of such care be imputed to them as negligent conduct. The former decisions of this court are conclusive on this branch of the case.—City of Chicago v. Major, 18 Ill. 349; Chicago and Alton Railroad Co. v. Gregory, 58 id. 226.” By the application of this'principle, which is sustained by other cases in this court, it could not be said, as a question of law, that under the facts shown in this record the parents were guilty of contributory negligence. The question was one of fact, for the jury, and has been settled by the judgment of the Appellate Court. It is urged there was error in giving the fifteenth instruction for plaintiff, which was: “The court instructs the jury, that by the laws of this State every railroad company is required to have a bell of at least thirty pounds weight and a steam whistle placed and kept on each locomotive engine, and to cause the bell to be rung or the whistle to be sounded by the engineer or fireman at the distance of at least eighty rods from the place where the railroad crosses any public highway, and shall keep the same ringing or whistling until such highway is reached. And in this case, if the jury believe, from the evidence, that the defendant’s servants in charge of the engine in question omitted to ring a bell and to sound a whistle, as required by law, until the highway crossing at which said child was killed was reached, (if the jury believe, from the evidence, said child was killed at a highway crossing, as alleged,) such omission constitutes a prima facie case of negligence on the part of the defendant; and if the jury further believe, from the evidence, that such negligence was the proximate cause of the injury complained of, and that the parents of said child were at the time exercising such care and oversight over his person as ordinarily careful and judicious persons would have exercised under like circumstances, and that said child, being on said highway, was run over and killed, as charged in the declaration, in consequence of the failure to so ring the bell or sound the whistle, then the jury should find-a verdict for the plaintiff.” The contention is, that a child of tender years, as in this case, could not exercise discretion or intelligence in caring for itself, and the giving of the signals could not have affected the question of the injury, as doing so would not have caused the child to exercise care for its own safety, olt was requisite the parents should exercise reasonable care and caution in caring for the child, and the giving of the signals required by the statute might have caused a greater degree of watchfulness on their part at the particular time of the injury, and tended to call their attention to the approaching train. It is not alone a question whether the child could have appreciated or known of the danger from the approach of the train, but whether, by giving the signals, the injury might have been averted by increased vigilance on the p.art of the parents, who would thereby have been able to prevent the accident by rescuing the child. Under the particular facts of the case we are of opinion it was not error to give this instruction. It is assigned as error that the trial court permitted certain amendments to plaintiff’s declaration without imposing terms. At a former trial a child born to appellee a few weeks after the accident was not mentioned in the declaration as one of the heirs of the deceased child, and for that reason a judgment rendered was reversed by the Appellate Court. On a remanding of the case the circuit court permitted the declaration to be amended in conformity with the views expressed by the Appellate Court. Minor amendments were also allowed, alleging that the child was sitting and not standing on the track, and was upon rather than crossing over it. During the trial, also, an amendment was permitted substituting the child’s mother as plaintiff instead of the father. None of these amendments materially affected the defense of the case on its true merits.. The permitting of amendments to the various pleadings in the case, and the question as to whether terms shall be imposed therefor, are matters within the sound judicial discretion of the trial court, and unless it shall appear to this court that there has been an abuse of such discretion it will not be considered reversible error. We are not disposed to say there was such abuse in this case. Thirteen instructions were asked by the defendant below, of which nine were given after some slight modification of four by the court. The modifications were so clearly proper it is not necessary to discuss them. The nine instructions given fairly stated the law applicable to the case in every phase as presented to the jury. No good purpose is to be served by entering into a discussion of the four instructions refused. They were improper as asked, and to the extent that part of an instruction was proper the ground is fully covered in instructions given. One of the rules of appellant’s company was permitted to go in evidence to the jury. The rule was pertinent to the issues involved and was competent evidence. (Lake Shore and Michigan Southern Railway Co. v. Ward, 135 Ill. 511.) The court permitted it to be read by the witness instead of offering the printed rule. It is not insisted that it was incorrectly read or that any injury resulted to appellant’s case thereby. No specific objection was made at the time by appellant, so that if error existed it might be removed by the court. We have frequently held that this must be done before this court will consider the admission of such evidence as error. The questions of fact are settled by the judgment of the Appellate Court. We find no errors of law in the record, and therefore the judgment of the Appellate Court is affirmed. Judgment affirmed.'