Chicago & Alton Railroad v. Logue

Mr. Presiding Justice Scofield delivered the opinion of the Court. About six weeks after Walter Logue had been killed by appellant’s train, Walter’s mother gave birth to a son, named Willie. This child was not mentioned in the declaration as one of Walter’s heirs, and for the variance in this respect between the evidence and the declaration, and for other errors mentioned in the opinion, the first judgment in favor of appellee was reversed by this court. 47 Ill. App. 292. When the cause had been re-docketed in the Circuit Court, appellee, by leave of court granted without terms, amended the declaration so as to show the fact of Willie’s birth. It is insisted that the court should have allowed the amendment only upon terms. We think that the court did not abuse its discretion in permitting the amendment to be made without terms. It was also eminently proper for the court to permit the declaration to be amended on the trial, without terms, so as to show that the child, when killed, was sitting and not standing on the track, and was upon rather than crossing the track. These amendments could not in any manner have affected the defense of the case on the merits. It is insisted, however, that the substitution of the boy’s mother as plaintiff in place of the boy’s father should not have been permitted without imposing terms. But it appears from the record, that when leave to make this amendment was obtained, appellant did not ask that terms should be imposed. Neither was anything said, specifically, about the allowance of this amendment without terms in any of the thirteen reasons set forth in the written motion for a new trial. And so the question is raised for the first time by the assignment of errors in this court. The objection comes too late. It was proper for the court to permit the amendment to be made, and if terms should have been imposed appellant should have asked that this be done, or should have preserved an exception to the action of the court in some other sufficient manner. Tomlinson et al. v. Earnshaw et al., 112 Ill. 311. But it is said that the father resigned as administrator, and the mother was appointed as such during the trial; that thereupon the substitution of the mother as plaintiff in place of the father .was made; that this was done in order that both father and mother might be competent witnesses ip the case; and that for this reason the amendment should not have been allowed. . There is nothing in the record to show that the appointment of the mother as administratrix was irregular or void. Appellant’s counsel asked for time to inspect the records and files of the County Court relative to the appointment of the mother as administratrix, but the court advised them to go on with the trial, “ to which remark of the court counsel for defendant made no response.” If counsel desired to allege this as error, they should have made a response in the way of an exception. It is also alleged that the court erred in admitting in evidence the 47th of appellant’s rules, which is as follows: Engineers must be particular to sound the whistle at all whistling posts and railroad crossings, and strictly regard slow boards. The engine bell must be rung at all highway crossings, commencing at least eighty rods from the crossing, and the bell kept ringing until the engine shall have passed the highway. At obscure crossings two long and a succession of short blasts of the whistle must be sounded until after the engine shall have reached the road. All fines imposed upon the company in consequence of a disregard of this rule will be collected from the engineer in fault.” That this rule was competent evidence seems unquestionable under the authority of L. S. & M. S. Ry. Co. v. Ward, 135 Ill. 511, in which case it was said: “ The rule was admitted in evidence, not for the purpose of founding a substantive cause of action upon its breach, but as tending, with the other evidence in the case, to show negligence in driving and managing said engine.” The first count of the declaration in the case at bar avers negligence in managing the engine and train, while the second count avers the failure to ring the bell or sound the whistle. As bearing upon the question of negligence in the management of the engine, the evidence was properly admitted. But it is said that the court erred in permitting the witness to read the rule to the jury; in other words, that if the rule was competent at all, the printed rule itself, as being the best evidence, should have been introduced in evidence. hTo specific objection was made on the ground that the reading of the rule was not the best evidence. A general objection is not sufficient to enable appellant to raise this point in this court. More important questions than these, however, remain for consideration. Was the negligence of the parents such as to preclude a recovery by reason of imputed negligence ? Were the servants of appellant guilty of negligence in the management of the train í Did the court err in giving and refusing instructions ? Are the damages excessive ? A brief statement of the evidence is necessary in order to the proper answering of these questions. Walter’s father, Alexander Logue, had been station agent at Edwardsville crossing for about three years, during which time he had resided with his family' in the depot building. Appellant’s road ran north and south on the west side of the depot, while the road popularly called the Big Four, ran on the east side thereof, the two tracks being perhaps fifty feet apart. The depot building contained four rooms. The north room was used for the office of the roads; the room south of it as a sitting room for Mr. Logue’s family; the third room, which was south of and two steps lower than the sitting room, as a bed room; and the fourth room, which was two steps lower than the bed room, as a kitchen. Passing from the kitchen through a door on the west, one came to a small yard, from which he might reach the platform by ascending three steps, the platform being about four feet higher than the yard. There was a door between the office and the sitting room, which was generally kept closed and which could not be opened by the boy, Walter, who was only twenty-one months old. Alexander Logue generally remained on duty from seven in the morning till seven in the evening, when he was relieved by the night operator. Having a death message to deliver, he got the night operator to take his place earlier than usual and went to the stable, which was west of appellant’s track, to hitch up his horse, leaving Walter in the kitchen with his mother. Another boy, Russell, was very sick with scarlet fever, and the mother went to the bed in the bed-room, where the child was lying,' to render him some attention. She gave the sick boy a drink of water and turned his pillow. She was in the bed-room from one and a half to two minutes. She had left Walter sitting on the lower of the steps which led from the kitchen to the bedroom. Returning to the kitchen she found Walter gone and hurried into the yard and thence upon the platform in search of him. She saw the child sitting on the track with his back to the north, about seventy-five or one hundred feet north of her and the train coming from the north at the rate of forty-five or fifty miles an hour. The train did not stop at this station unless signaled to do so. The signal was generally given by the dropping of a green ball and the ball had not been, lowered. The track was level for two miles north of the station and there was nothing to obstruct the view. There was a conflict of the evidence as to the position of the child with reference to the public highway, which crossed the track just north of the platform^ and also as to whether or not the bell was rung or whistle sounded, in conformity with the requirements of the law. The jury might well have answered both of these questions in favor of appellee. The mother called her husband and ran toward her child, screaming and waving her hands, and then sprang across the track in front of the engine, seizing the child by the dress and thinking she had saved it. She had failed, however. The child was killed and she was knocked down and injured. The engineer saw the mother’s, demonstrations and saw the object on the track, but did not seek to get his train under control till he saw the object move and was thereby satisfied that it was alive. He practically admits, and the jury were justified in finding, that if he had reversed the engine and applied the emergency brake when he first saw the object and the mother’s demonstrations, the mother could have saved the child. The position taken by the engineer, and others called as experts, is set forth in the proposition that if an engineer sees an object on the track and can not determine absolutely whether it is a child or some inanimate thing, and sees a woman’s frantic demonstrations as she runs toward the object with a manifest desire to stop the train, and knows that if he waits to ascertain certainly what the object is it will be too late for him to save the child, if it be a child, then it is the right or duty of the engineer to wait until he knows what the object is, before reversing the engine and applying the brakes. Under the facts disclosed by the record in this case, a jury would be warranted in finding such a course to be an undervaluation and a reckless disregard of life, even though many experts should express an opinion to the contrary. On the question of the negligence of the parents, we are of the opinion that no such negligence is shown as to bar a recovery. On the question of appellant’s negligence, we are of the opinion that such a degreq of negligence is shown as to authorize a recovery. The first and second of appellant’s refused instructions state in substance, that if the engineer could not distinguish the object to be a child until so near that the child was killed before the train could be stopped, then there could be no recovery. This proposition is contrary to our views of the law as hereinbefore announced. The third of appellant’s refused instructions told the jury that the negligence of the child’s parents was such as to preclude a recovery. This instruction invaded the province of the jury and was therefore properly refused. It is admitted that the fourth refused instruction was not proper after the declaration had been amended. We find no error in the modification of appellant’s instructions or in the giving of appellee’s instructions. The jury answered certain special interrogatories submitted to them at the request of appellant, to the effect that the engineer did not endeavor to ascertain what the object on the track was as soon as he could; that after ascertaining that the object was a child, he stopped the train as soon as he could, but after first seeing the object he did not endeavor to get his train under control, and that, while the engineer could not have stopped the train in time to save the child’s life after discovering that the object was a child, yet if he had endeavored to control his train as soon as he saw the object, the mother could have saved the child. It does not follow that, because of these special findings', the court should have disregarded the verdict and rendered judgment for appellant, or that the verdict should have been set aside because of its inconsistency with the special findings. These findings aid the verdict by showing that the jury found for appellee on the ground that, under the circumstances of this case, it was negligence for the engineer to wait until he absolutely knew the object to be a child, before seeking to get his train under control. It is said that the verdict of $1,500 in this case is excessive. It is not claimed that the court erred in stating to the jury the measure of damages; but it is said that the sum of $1,500 is too much for the killing of a child of this age under any circumstances. Appellant cites two cases, in each of which the amount recovered for killing an infant was $800, and the verdict was not disturbed (City of Chicago v. Major, 18 Ill. 349; City of Chicago v. Hesing, 83 Ill. 204); also another case in which the recovery of $1,000, for killing a child twelve years of age, was sustained (City of Chicago v. Powers, 42 Ill. 169); also another case, in which a judgment of §1,000 for killing a child nine years of age was not considered excessive (I. C. R. R. Co. v. Slater, 129 Ill. 91); also another case in which the recovery of $2,000, for killing a child seven years of age, was sustained (C. & A. R. R. Co. v. Becker, 84 Ill. 483). But these authorities, instead of showing that the verdict in the case at bar is excessive, are excellent authorities in support of the contrary proposition. No substantial error appears in this record, and the judgment is therefore affirmed.