Lake Shore & Michigan Southern Railway Co. v. Ward

Garnett, J. The judgment of which this appeal complains, was for personal injury to appellee, on April 29, 1886, at appellant’s railway crossing of Root (or 42d) street, in this county. At that time there were crossing at that point what were known as the new-main, the in-main and the out-main tracks, the new-main lying on the east, the in-main, nine feet four and three-fourths inches further west, and the out-main, thirteen feet two and one-half inches still further west. There were two other tracks at the same crossing, both lying west of the out-main, and east of the new-main were three switch tracks, the one lying farthest east, running into appellant’s round-house, which was built just south of Root street. The in and out-main tracks were used jointly by appellant and the Chicago, Rock Island & Pacific Railway Company. In the morning of the day named, appellee was at the Root street crossing, waiting to take passage on the 7:30 a. m. Rock Island suburban passenger train, bound north for the city of Chicago. As the train was seen approaching on the in-main track, she, with other persons who were there with the same purpose, moved south of the south line of Root street, to board the train where they could get seats, having found by experience that the seats in the front cars of the train were always filled before reaching that place. Appellee and several other persons stood between the new and in-main tracks waiting for the train, while others stood between the in and out-main. Seeing the train coming rapidly from the south, and fearing her clothing might be caught in the draft caused by the rapid motion, she drew back toward the east, and was struck and injured by the tank of appellant’s engine which was slowly backing south on the new-main track. The circumstances of the case, as developed by the evidence, are such that this court has no right to interfere with the verdict, unless some error of law intervened. The first point made by the appellant is, that the proof varies from the declaration. Without commenting upon the fact of a variance, it suffices to say that no specific objection on this ground was made in the trial court. When the evidence was nearly all in, counsel for appellant did move the court to instruct the jury to find a verdict for the defendant on the ground that “ the proof varies from the declaration!” The benefit of the objection is not saved by a motion so general in its terms. St. Clair Co. Ben. Soc. v. Fietsam, 97 Ill. 474; Start v. Moran, 27 Ill. App. 119. Appellant’s second point is, that there was no station at Root street and appellee was a trespasser, as she was thirty-five feet south of Root street when she was struck. Ro station house, ticket office or platform was built there. Some of the north bound trains stop at the 39th street station, being the next station north of Root street, but the 7:30 a. m. Rock Island passenger train did not stop at 39th street. Appellant did not advertise Root street as a station, or name it as such on its time cards, and no tickets were sold to or from there. Tickets were sold to and from 39th street, and were received in payment of fare from passengers taking trains at Root street. But it is a conceded fact, that for twenty years prior to April 29,1886, the north bound trains of both roads had all stopped at Eoot street, and during all that time all the suburban passenger trains were in the habit of receiving and discharging passengers there. So objection was ever made to the practice by either road, and no warning given to the public generally or to those in the habit of taking the train at Eoot street, that there was no station at that place. Appellant says that the trains were stopped there on account of the stock yards railroad crossing at 40ill street, and not for the accommodation of passengers. The distance of that crossing from Eoot street is variously stated by the witnesses. One testified that it was about 300 feet, another about 600 feet, and another about 1,000 feet. Taking either estimate as approximately correct, a stop at Eoot street was certainly unnecessary in obedience to the statute. If the distance was 300 feet, the trains could have stopped south of there, or if it was 600 feet or more, they could have stopped further north. Some other object must have been contemplated, and the public had the right to suppose from the long and uniform course of business, that their accommodation was the design, and if so, they might well assume that the railway companies had issued a general and standing invitation to use the ground at Eoot street, and so much adjoining thereto as was necessary and convenient, for the purposes of a station. Thompson on Carriers of Passengers, 268. Failing to indicate by platform, or otherwise, the bounds within which it would be safe for passengers to stand while waiting the arrival of a train, momentarily expected, appellant can not complain if a person intending to take passage stations himself at any point adjoining the usual stopping place, where it might reasonably be anticipated that any part of the train adapted to the accommodation of passengers would come to a stand. Chicago & Alton R. R. Co. v. Flagg, 43 Ill. 364, is cited by appellant to support its contention that there was no station at Eoot street. We need not find fault with that case. What was, within the words of the statute as it then read, a “ usual stopping place ” for ejecting passengers who refused to pay fare, is not the same question as that now presented to the court. Should the company be permitted to deny the effect of its invitation to the public when it becomes its interest to do so ? It is true that the stopping at Root street was for the' convenience of the public. So should be every stopping place on a railroad. But it is equally true that the stopping at Root street was for the advantage of appellant. For it to now say that the only object was the convenience of the public sounds strangely. The stop there and transportation of passengers to the city for the same fare as if they got on at 39th street, was more than appellant was legally hound to do. But the extension of this slight favor can not be used as an excuse for neglect to provide reasonable precautions for the safety of the passenger at the place where he is invited to enter the train. We believe the true rules applicable to the facts of this case are stated in Thompson on Carriers of Passengers, page 269: “ Wherever a railroad company is in the habit of receiving passengers, whether at a station or some point outside, or if by the regular operation of trains it is necessary to traverse portions of the premises outside of the station house, passengers have a right to assume that such parts of the premises are in a safe condition for such purpose, even on a dark night. Injuries frequently happen to passengers by being run over by other trains passing through stations, while taking or leaving their own trains. In cases of this kind, it would seem that if the running arrangements of the road are such that it is necessary to pass over a railroad track in order to take or leave a train, the passenger may rightfully expect protection against the running of trains at such a time, and may, therefore, properly relax that vigilance for his safety which is ordinarily demanded of one coming upon a railroad track.” The court admitted in evidence, over appellant’s objection, this joint rule of the two railroad companies: “ 9. When passenger trains are at stations or street crossings, receiving or discharging passengers, other trains or engines must not, under any circumstances, pass between the stan ling train and station, or until the track is known to be clear. “Engineers and train men will look out for local and dummy trains of both roads, that stop at street crossings, between Englewood and Chicago. “For the government and information of employes only.” It is said that the rule should not have been admitted, as it was not set up in the declaration. A similar point was decided adversely to appellant in Coates v. The Burlington, C. R. & N. Ry. Co., 62 Iowa, 486; see, also, Chicago City Ry. Co. v. Wilcox, 33 Ill. App. 450. The evidence is competent as an admission of the defendant. Plaintiff’s third instruction was predicated upon the hypothesis that she was a trespasser and by it the jury were instructed that the defendant was liable if its servants could, by reasonable care, have avoided injury to plaintiff. Bailroads are not liable to trespassers for anything short of wanton or wilful negligence, but as there was no evidence tending to prove plaintiff a trespasser, the error in the instruction was harmless. The main points of the contention have now been disposed of, and without commenting separately upon each of the remaining objections to the judgment, presented by the appellant’s brief, we will simply say that due attention has been given to them all, and we are satisfied there has been no error warranting a reversal. The judgment is affirmed. Judgment affirmed.