Chicago Terminal Transfer R. R. Co. v. Gruss

Mr. Justice Adams delivered the opinion of the court. Appellant’s counsel contends that the appellee was not a passenger when the accident occurred, but was a trespasser on appellant’s right of way, and that appellant owed her no duty beyond the duty to abstain from wanton or willful negligence; that the proof was insufficient to warrant a recovery; that improper evidence for appellee was admitted, that an improper instruction was given for appellee, and proper instructions asked by appellant were refused. Even dn the hypothesis contended for by appellant’s counsel that the appellee was not a passenger but a trespasser on appellant’s right of way, we are of opinion that the evidence is sufficient to sustain the verdict. The trestle bridge is 254 feet in length. DeLand, the brakeman, took bis station on the rear platform of the train (which, in backing, was the front platform) when the train started to back from the depot. Evidently he took this place as a look-out. His own testimony shows this. He testified : “ When I first started back, I cleared the platform. I thought that I might want to use it.” The evidence is that the track was straight, and it tends to prove that DeLand might have seen the people on the bridge from at least a point 100 feet north of the bridge. He further testified that when he saw appellee she was about the middle or north of the middle of the bridge, about fifty feet from the train, and that she ran about fifty feet before she was struck. If she was fifty feet from him when he first saw her, and she ran south fifty feet after he first saw her before she was struck, then there was a distance of 100 feet in which to stop the train before reaching her; yet he gave no signal to the engineer to stop the train, although it might have .been stopped within thirty-feet, as the engineer testified. The day was Sunday, and the passengers went to Blue Island on a pleasure excursion; the crew of the train must have seen the crowd pass south over the bridge when they alighted from the train at Blue Island; and the brakeman, DeLand, seeing people come from the south toward the train, about train time for Chicago, must have known that they were coming to take the train for the return trip. Bo bell was rung nor whistle sounded as the train backed, nor was any signal given to the engineer to stop the train, although appliances for that purpose were conveniently near to where DeLand, the lookout, stood. In L. S. & M. S. R. R. Co. v. Bodemer, 139 Ill. 596, 605, in which case it was conceded that the plaintiff was a trespasser, the court say: “ It was the duty of the engineer to exercise ordinary care to avoid striking the deceased, even if he was a trespasser. If it was impossible to stop the train in time, it may yet have been possible to have warned the plaintiff of his danger in time to enable him to get out of the way. The engineer‘must use all the usual signals to warn the trespasser of danger.’ (2 Shear. & Bed. on Beg., Sec. 483, 4th Ed.) If the boy was 125 feet from the engine when he stepped upon the track, did the engineer see him ? It was for the jury to answer this question. The company did not produce the engineer, who said that he did not see the deceased, nor did it introduce any evidence upon that subject. It is not necessary to show by affirmative testimony that the engineer’s look was directed toward the boy. It is sufficient, if it appears from all the circumstances, that he might have seen him by the exercise of reasonable diligence and ordinary prudence. ■ Why did he not see him ? The track was straight and clear and unobstructed for a long distance.” In the same case, p. 606, the court, referring to several cases, defines willful or wanton negligence, substantially, as such a gross want of care and regard for the rights of others as to justify the presumption of willfulness or wantonness. In Pierce v. Walters, 164 Ill. 560, in which case it was also admitted that the plain tiff was a trespasser on the railroad right of way, it was held that if the engineer was guilty of a want of ordinary care to avoid injury to the plaintiff, after discovering his presence on the right of way, the plaintiff was entitled to recover. We are of opinion that the jury was warranted from the evidence in finding not only that the lookout might, in the exercise of ordinary care, have seen appellee as she was walking north over the bridge, before the train, in backing, reached the bridge, but that, if the lookout had exercised ordinary care after he actually saw appellee, the injury would have been avoided. We find no error in the admission of evidence or in the giving of appellee’s instruction. Appellant’s refused instructions are substantially included in instructions given. It is assigned as error that the damages are excessive, but this objection is not made in appellant’s argument and must, therefore, be deemed waived. Gordon v. Commissioners, etc., 169 Ill. 510; Interstate B. & L. Ass’n v. Ayers, 71 Ill. App. 529, 541. The evidence shows that appellee’s injuries are serious, progressive and permanent. The judgment will be affirmed.