Benson v. Chicago & North-Western Railroad

Watebman, J. With the roar of a passing train drowning all ordinary sounds, it is not strange that signals of the approach of another train, if any were given, were not heard. What clearly appears in the case and what the verdict of the jury must have been based on, is that appellant did not exercise ordinary care. He was about to go over a railroad crossing with which he was familiar, and past which he knew trains going with great rapidity were to be expected at any moment. With nothing to obstruct his view, he drives upon the crossing, immediately following a passing train; no much more dangerous time in which to go upon the track could have been selected. Was this such diligence as ordinarily prudent men exercise at such places and times? The jury thought not, and we see no reason for disagreeing with them. We do not think that the instruction asked by plaintiff should have been given as asked; the concluding clause thereof, “ that if the jury find,” etc., “ the jury will assess his damages at such sum as the jury shall find from the evidence he has suffered on account of such accident, not exceeding the sum of §10,000,” has been condemned in L. S. & M. S. Ry. Co. v. May, 33 Ill. App. 366; C., R. I. & P. R. R. Co. v. Austin, 69 Ill. 426. The fifth instruction for the defendant is incorrect, but the facts of the case do not, in our judgement, warrant a reversal for the error contained in it. It is not because the record shows that appellant did not exercise the highest degree of care, but because the record fails to show that he exercised ordinary care, that we do not interfere with the judgment in this case. Taking the instructions as a whole, in which way they must be considered, we think the jury were not misled to the prejudice of appellant. The judgment of the Circuit Court is therefore affirmed. Judgment affirmed.