Illinois Central Railroad v. Lindgren

Mr. Presiding Justice Burroughs delivered the opinion of the court. This case was before this court at a former term ■ on a writ of error, and is reported as Lingreen v. I. C. R. R. Co., 61 Ill. App. 174, where a former judgment therein, in favor of the I. C. E. E. Co., was reversed and the case remanded for another trial, which resulted in a verdict and judgment against the I. C. E. E. Co. for $2,541, and it now brings the case to this court by appeal, and urges a reversal of that judgment on the grounds the evidence fails to show thajt the appellee’s intestate was using ordinary care for his safety when he was killed; that the court gave improper and refused proper instructions, and improperly modified proper instructions, requested by appellant. The evidence showed that Charles Lindgren, appellee’s intestate, between four and five o’clock in the afternoon, while attempting with his carriage and horses to cross the tracks of the appellant’s railroad at a crossing of one of the principal streets in the city of Champaign, where the trains on appellant’s railroad, crossing there, can not be seen on account of buildings, except where they cross this street, was thrown from his carriage on account of the horses becoming frightened at an engine approaching this street crossing. It also shows that the engineer in charge of the engine, seeing the team drawing the carriage was about to cross, stopped to let it pass over. The team, however, seeing and hearing the engine so near to them, became frightened and were attempting to run away; but the driver had nearly succeeded in quieting them, when the engineer started it in motion again, which caused them to become more frightened and they did then run away, turning the carriage over and killing Mr. Lindgren. It is true that the evidence tends strongly to show that Mr. Lindgren did not himself attempt to prevent the team from running away, leaving the management of them to the driver, who is shown to have been a capable one, but it fully appears that from the time the horses saw and became frightened at the engine until the carriage was overturned, was but a very short time; and it is not unreasonable to suppose that there was more likelihood of the driver controlling the team alone, as he was driving when attempting to cross the railroad, than if he was interfered with in their management by Mr. Lindgren. The evidence shows that the appellant was required by city ordinance to keep, and had kept a flagman at this crossing, for a number of years; and that this flagman was accustomed to, and usually did, signal persons not to cross this street crossing, when an engine or train was approaching" near thereto; and although this flagman was at this crossing when this carriage and team approached, he did not signal for it not to cross; which failure to signal was taken by those in the carriage as meaning that they could safely cross; and as they did not hear or see any engine or train about to cross, they deemed it safe, and attempted to go over, which attempt resulted as hereinbefore stated. We believe from all the-evidence in this record, that the jury were justified in believing therefrom, that Mr. Lindgren was using due care for his safety when he was killed as aforesaid. As to the ruling of the Circuit Court on the instructions, we are not unmindful that those complained of contain some inaccuracies when read singly, but when all the instructions as given, are read as one charge, as they should be (see Whitney & Starrette Co. v. O’Rouke, 172 Ill. 183), they fairly gave the law of this case applicable to the pleadings and the evidence; so that on the whole record we do not believe that the appellant was unduly prejudiced by any of the instructions given, refused, or modified. As we believe the evidence warranted the verdict, and, on the whole record, the proceedings and result are fairly correct, we aflirm the judgment in this case. Judgment affirmed. Mr. Justice'Weight took no part in the consideration or decision of this case in this court, as he presided in the court below at one of the trials of this case in that court.