Lake Shore & Michigan Southern Railway Co. v. Bodemer

Garnett, P. J. Philip Bodemer, Jr., a boy about nine years of age, was killed September 8, 1889, by one of appellant’s trains, on its track, between 25th and 28th streets, in the city of Chicago, and appellee brought this suit against appellant to recover damages therefor, alleging that the deceased came to his death through gross and wanton negligence of appellant. There was a verdict and judgment against appellant, which it now seeks to reverse. Just before the fatal occurrence, the deceased and his brother, the latter about twelve years of age, were on the east side of the tracks, between the two streets named, and a freight train was then moving south on one of the tracks. When it had passed, the boys walked upon the tracks, the elder being in front, and reaching the west side of them in safety. The deceased, however, was struck and killed by a passenger train going north on another of appellant’s tracks running parallel and close to the track on which the freight train passed. The speed of the passenger train was from twenty-five to forty miles per hour. Twenty-five miles per hour was the lowest rate of speed stated by any witness. The bell on the engine was not rung, but just before the boy was struck, the whistle gave two short, sharp blasts. The tracks of appellant between 25th and 26th streets are in a populous part of the city, and are not guarded in any way to prevent the passage of teams and foot passengers over them. On each side of them is a space used as an alley or roadway, and just west of the west alley are buildings used for business purposes, fronting the tracks. Passing over the tracks at that place had been a common practice with people living or doing business in that vicinity. Appellant’s tracks are laid there over its own private property, but the strip of ground on which the tracks are built connects at the north end thereof with Clark street, so as to make it, apparently, a continuous street to a point south of where the boy came to his death. Appellant contends that as the collision happened on its private property, the deceased was a trespasser, and it is not liable in damages for causing his death. Whether that is a defense depends on circumstances. It has not, in all cases, been held sufficient to exonerate the party causing the injury to the trespasser. In C., M. & St. P. Ry. Co. v. Yando, 26 Ill. App. 601 (affirmed in 127 Ill. 214), the deceased was a trespasser on defendant’s track when she was killed, but she was apparently unaware of her danger, and as the engine driver saw her and understood her danger a sufficient distance from her to have stopped his engine by the exercise of ordinary care, the defendant company was held to be guilty of gross, wilful and culpable negligence, and the verdict of the jury was sustained. See also, C. & A. R. R. Co. v. Gregory, 58 Ill. 226; C., M. & St. P. Ry. Co. v. West, 125 Ill. 320; same case, 24 Ill. App. 44. It seems to be the uniform rule that wilful or wanton injury even to a trespasser, is actionable. Ror is it material in such cases that the person injured was guilty of contributory negligence. The rule is stated in Cooley on Torts, 810. “Where the conduct of the defendant is wanton and wilful, or when it indicates that degree of indifference to the rights of others which may justly be characterized as recklessness, the doctrine of contributory negligence has no place whatever, and the defendant is responsible for the injury he inflicts, irrespective of the fault which placed the plaintiff in the way of such injury. That is the rule in this State. Litchfield Coal Co. v. Taylor, 81 Ill. 590; C. & N. W. Ry. Co. v. Donahue, 75 Ill. 107. As there was no instruction given to the jury in this case, except one informing them that there could be no recovery on the first four counts of the declaration, we must presume, in support of the judgment, that the facts alleged in the remaining count were found by the jury as unfavorably for the appellant as the evidence would warrant, and we think the evidence fully justified the belief that the train which caused the death, was moving at a reckless rate of speed, through a populous part of the city, the tracks being unguarded, and with surroundings of the character already described. Was the jury authorized from these facts in finding defendant guilty of wanton negligence? We think they were. As the court said' in Gregory’s case, supra, “ The train was running with great speed, which it did not slacken as it passed through the town. We consider this, of itself, great negligence.” In Yando’s case, 26 Ill. App. 601, it was considered a material fact that the engine driver saw the deceased a sufficient distance from her to have stopped his engine by the exercise of ordinary care. The result must have been the same if he had recklessly turned his back, or placed something over the window in the engine cab, so he could not see. If the injury is caused, in a place like that described in the case at bar, by putting the train in such rapid, motion that it can not be checked in time to avoid a collision, which might have been averted if the speed had been only reasonable, the negligence is as culpable as though the engine driver saw the danger and could have prevented the injury, but failed to do so. In the one case, before the danger actually presents itself, he wilfully puts it out of his power to prevent the injury; in the other, he sees the danger and has the power to prevent the injury, but refuses to do so. If there is any degree of difference in culpability in the two cases, we think the law does not recognize it. On the trial there was offered in evidence by appellee two sections of the city ordinances, one limiting the speed of passenger trains within the city to ten miles an hour, and the other requiring the bell on the locomotive to be rung continually while running within the city. The record does not show that either section was read to the j ury as evidence, and counsel for appellant admits that they were not read until after the evidence was all in, and counsel for appellee was addressing the jury. Then the section limiting the speed was read as a part of the address, and was objected to by appellant; the objection was overruled and appellant excepted. The only injury, if any, to appellant from this source, must arise from the reading of the one section in the hearing of the jury, and that must be regarded as harmless, because, in his opening address to the jury, before any evidence was given, that section of the ordinance was stated in substance by appellant’s counsel, and he then admitted that the train which caused the death of the boy was at the time running more than ten miles an hour. The opening address of appellant’s counsel must still have been fresh in the minds of the jury and the effect thereof would have been as unfavorable to appellant as though the section had never been read. The instructions requested by appellant and refused by the trial court are too numerous for separate discussion. Many of them were in conflict with the rule above quoted from Cooley on Torts, others were misleading, and we think no material error was committed in refusing any of them. The' general verdict of the jury, as we have seen, was based upon the fact of wanton negligence, and with that fact the answers to the special interrogatories are entirely consistent. The judgment is affirmed. Judgment affirmed. Gaby, J., took no part in this decision.