O'Donnell v. Lake Shore & M. S. Ry. Co.

Mr. Justice Adams delivered the opinion of the court. We are of opinion that the evidence tended to support the plaintiff’s case. The witness Fagan, while testifying that the gates were down when he left his place, and that they were down when he returned, did not, and from where he was, perhaps could not testify as to whether they were up during the time he was absent from his place, and Martin testified that they were up when he went on the crossing, and stopped about the third track from the west side, which was only a few feet from the most westerly track, and that the deceased passed him. When asked how long he had stood where he stopped, when the deceased passed him, he said, “It might not be a minute, it might not be more than a minute,” leaving it to be inferred that the deceased came on the crossing while the gates were open, as the witness said they were when he got onto the crossing. Another witness testified that he had just crossed Pacific avenue, driving a team toward the east gate, when the gates went down, and that he then saw the deceased on the crossing. If the gates were open when the deceased walked onto the crossing, that fact was an indication to her and others that they might safely cross' the tracks. We think it was a question proper to be passed on by the jury, whether the gates were open when the deceased walked onto the track. In addition the evidence tends to prove that the view of the approaching south-bound engine, which struck the deceased, was obstructed, and that the engine and its attached coaches were moving, in violation of the city ordinance and the statute (Hurd’s Stat. 1901, C. 114, parag. 87), at a prohibited rate of speed. We do not agree with the contention of counsel for the defendants, that there was only a scintilla of evidence for the plaintiff. We think the evidence material as reasonably tending to support the plaintiff’s case, and that the case should have been submitted to the jury. The motion to instruct the jury to find the defendants not guilty, was in the nature of a demurrer to the evidence, and the court, in passing on that motion, was limited to determining whether there was, or not, evidence which, if true, reasonably tended to support the plaintiff’s case. It was not within the province of the trial court, nor is it within our province on this appeal, to weigh the evidence, or pass on the credibility of the witnesses. Roberts v. C. & G. T. Ry. Co., 78 Ill. App. 526, and cases there cited. The evidence for the plaintiff in the present case is as strong, if not stronger, than was the evidence in Siddall v. Jansen, 168 Ill. 43; for the plaintiff in that case, and the trial court in that case, as in this, took the case from the jury, which action the Supreme Court held was erroneous. We find no error in the rulings on evidence. The judgment will be reversed and the cause remanded.