Southeast & St. Louis Railroad v. Stotlar

Phillips, P. J. Humorous errors are assigned on this record, but we deem it necessary to consider only the question as to whether the defendant in error exercised that degree of care and caution for his personal safety that an ordinarily pru dent man would have done in like circumstances. If we take his own evidence as disclosing the facts, he was walking on the track of a railroad near where there were other roads on which trains were passing, making great noise, and he did not look back or exercise any caution to avoid danger. If we take the testimony of other witnesses who witnessed the accident, he came from under a car and started to walk along the track and used no precaution to ascertain whether an engine or train was approaching. There is no evidence tending to show that the employes of plaintiff in error wantonly or wilfully caused the injury. It has been repeatedly held that to walk upon the track of a railroad without looking in both directions to discover approaching engines or trains, where the exercise of such precaution would discover either the one or the other, is such negligence as will preclude a recovery unless the injury be wilfully or wantonly inflicted by defendant. Austin v. C., R. I. & P. R. R. Co., 91 Ill. 35; C. & A. R. R. Co. v. Gretzner, 46 Ill. 82; Blanchard v. L. S. & M. S. Ry. Co., 126 Ill. 416; C. & N. W. R. R. Co. v. Sweeney, 52 Ill. 325; C., B. & Q. R. R. Co. v. Van Patten, 64 Ill. 510; C., B. & Q. R. R. Co. v. Damerell, 81 Ill. 450; C., R. I. & P. R. R. Co. v. Bell, 70 Ill. 106; L. S. & M. S. R. R. Co. v. Hart. 87 Ill. 529; I. C. R. R Co. v. Hetherington, 83 Ill. 510; I. C. R. R. Co. v. Hall, 72 Ill. 222. The reckless conduct of the defendant was such negligence that it will preclude a recovery. The judgment is reversed. As a result of the finding of this court in finding the facts as not sustaining a cause of action, the following facts are incorporated in this record: The plaintiff in error was not guilty of the negligence charged in the declaration. The injury received by the defendant in error was the result of the want of ordinary care on his part.