Lake Street El. R. R. Co. v. Gormley

Mr. Justice Freeman delivered the opinion of the court. It is urged by appellant’s attorneys that in view of the undisputed facts the court erred in refusing to direct the jury, as requested by appellant, to return a verdict of not guilty, because, as it is claimed, the injury resulted from contributory negligence. L. S. & M. S. Ry. Co. v. Hessions, 150 Ill. 546. If the facts are undisputed, and of such a character that reasonable minds would agree without dissent that the injury was caused by appellee’s contributory negligence, and there is no evidence upon which the jury could, in the eye of the law, reasonably find otherwise, then the instruction should have been given. Martin v. C. & N. W. Ry. Co., 194 Ill. 138; C. C. Ry. Co. v. Canevin, 72 Ill. App. 81; Lamson v. I. T. & Sav. Bk., 166 Ill. 162; Wabash Ry. Co. v. Brown, 152 Ill. 488; Landgraf v. Kuh, 188 Ill. 484. It is stated by appellee’s attorney that although there was a count in the declaration alleging that plaintiff was, when injured, still a passenger, yet that “ the case did not go to the jury upon any such theory,” and that no such claim is now made. Appellee had left the station platform and was proceeding southward on the sidewalk apparently on the public street, when she was struck by the train approaching from the west. So far as appears, therefore, she had left appellant’s premises and was no longer in its charge as a passenger. C. & E. I. R. R. Co. v. Jennings, 190 Ill. 478; C. & N. W. Ry. Co. v. Weeks, 99 Ill. App. 518-523. Was the accident caused in whole or in part by appellee’s contributory negligence? According to her own testimony appellee was struck, not on her side, but in front, and a little to the right of her body and face. She seems to have been walking with her face turned partly toward the approaching car, against the projecting corner of which she thrust herself. The train did not steal upon her from behind. Yet she neither looked nor listened even an instant before placing herself in a position of danger. There is no reason apparent in the evidence to suppose that she could not have seen the train had she lifted her eyes, or have heard it had she directed her attention to the ever possible danger at such a crossing. Her attorneys seerq to concede this, when they argue that the view to the west was obstructed by a lavatory eighty feet away across Austin avenue. But she did not look in that direction at all after she left the top of the platform, and the lavatory could not have obstructed her view of the train after the latter had passed it. She states that she “ did not look up.” She “ did not see the train, didn’t even catch a glimpse of it,” before it struck her. She was thoroughly familiar with the surroundings there, and was accustomed to ride on trains leaving and arriving at that station. She had lived for eight years in that locality. She could sit on her front porch and see the trains and the crossing at Austin avenue where she was injured. She was familiar with the way the railroad ran its trains. Here, then, was perfect knowledge of all the conditions; and yet appellee, in apparent forgetfulness, walked into or against a moving train, which she knew might come at any moment, without any effort to look out for its approach. These are undisputed facts, and show, we think, that appellee was so clearly and palpably negligent that all reasonable minds would so pronounce it without hesitation or dissent. In such cases the court may so pronounce it as a matter of law by instructions to the jury. Hoehn v. C., P. & St. L. Ry. Co., 152 Ill. 223-229. In Ill. Cent. R. R. Co. v. Batson, 81 Ill. App. 142-153, after citing a number of cases, it is said: “ These authorities, and many others that might be cited, warrant the statement that while a failure to look as a train is approaching is not in law negligence per se, it is negligence in fact, if there are no conditions or circumstances which excuse looking. And a jury without evidence of conditions or circumstances which excuse looking, when looking would disclose the danger, is not warranted in finding that such failure to look is not negligence.” The traveler, however, “ may not be in fault in failing to look or listen, if misled without his fault, or the view may be obstructed by objects or by darkness, and other and louder noises may interfere with his hearing.” C. & N. W. Ry. Co. v. Hansen, 166 Ill. 623-628; C. & A. R. R. Co. v. Pearson, 184 Ill. 386-391. Is there evidence in this case which tends to show that appellee was or may have been thus misled, and which should have been submitted to the jury? A railroad crossing is always a place of possible danger. Appellee does not claim to have been ignorant of the conditions. She tells her story frankly and without hesitation. She does not, so far as we can ascertain from the evidence, claim to have been misled. It is urged, however, by her attorneys, that the view of the track to the west was obstructed. But we are provided with photographs by both parties which tend to show that before reaching the bottom of the steps appellee had a view of the track for at least a hundred and fifty feet to the west. It is said the night was dark, and there is evidence that the sidewalk at the crossing was not lighted. It was not, however, entirely dark. There were lights not far away on the platform and on the street. Appellee does not claim to have had difficulty in seeing her way. The absence of a brilliant light at the crossing might make it easier instead of more difficult to see the electric lights of the approaching train, had she looked at all, when -descending the steps or stepping toward the track. If the view was obstructed by the lavatory when she was on the platform then it was her duty to look as soon as she reached a point where it was unobstructed. 2 Thompson on Negligence (2 Ed.), Sec. 1442; Kelly v. Wakefield, 179 Mass. 542. The darkness of the night was an additional reason for exercising care to look and listen at a railroad crossing.. In the case last above cited it is said : “ But the conclusive reason for holding that plaintiff was guilty of contributory negligence is that, knowing he could not see a car which was behind the trees * * * he did not take any pains to see that such a car had gone by before he drove onto the crossing, or so near it that some accident was inevitable.” There was absence of a headlight. Waiving the question as to whether this was negligence on the part of appellant, it is difficult to see how this fact would excuse appellee’s failure to look before stepping on the track in the direction in, which a train might be expected to come. As she passed down from the platform she was looking at the steps, but did not look west along the tracks. She saw and heard nothing. Others saw the lights of the train. One of appellee’s witnesses saw the light of the east-bound car half a mile away. Another of appellee’s witnesses states that the cars were lit up. There was a lantern hanging on the front of the train. It is possible a strong headlight might have attracted appellee’s attention. But its absence does not excuse her failure to exercise due care herself. There is evidence by one of appellee’s witnesses that there were “ a good many toots of the whistle ” about a block before the train reached the west side of Austin avenue, and that the bell was ringing when the emergency brakes were put on. This is denied by another of her witnesses, and a third did not observe and does not know. The absence of signals is not, therefore, shown by a preponderance even of appellee’s evidence, and that signals were given is affirmatively shown by overwhelming testimony of appellant’s witnesses. Appellee testifies: “ I did not bear any noise of any kind; I didn’t hear the noise of the train running along the track. I do not remember of the train of cars making any noise, that left the station about the time I was leaving it. I did not hear any signals or noises of any kind when the two trains met each other west of the station a little ways.” This testimony indicates that her thoughts were absorbed, so that the noise even of .the departing train she had just left made no impression on her mind, and if so, her failure to hear the approaching train is not satisfactory evidence that the signals were not given. It rather tends to show that she was not misled, and so failed to look and listen, because of the alleged absence of signals. There is evidence introduced by appellee’s counsel tending to show that the speed of the train was at the rate of at least twelve miles an hour. It does not appear that this rate of speed was unusual, nor that it was negligent. Whether the train was going at six miles an hour, as appellant’s witnesses claim, or twelve miles an hour, as estimated by witnesses for appellee, it must have been near at hand before appellee had descended the steps leading from the platform. At twelve miles an hour the train would move, it is said, seventeen feet a second, and would travel eighty feet in a little over four seconds. At the rate of three miles an hour, or about four feet in a second, appellee would have traveled more than sixteen feet after the train was in full sight across the street. Even if she was walking at a still slower rate, she was yet approaching the track without an effort to ascertain whether there was danger, and was actually about to put her foot upon the rails when she was struck without knowing what hit her. If the night was dark or misty, there was the greater need of caution in approaching a railroad crossing. She knew there was no flagman at that point, and no gates. It is obvious that not to look or listen when at the bottom of the steps before approaching the track was a lack of ordinary care on appellee’s part, which was the direct cause of the injury. We are of opinion that the undisputed facts fail to relieve appellee of the duty of looking and listening, or excuse her failure so to do. Objections are made to certain instructions, some of which we regard as well founded. The third instruction, which refers to “negligence of the defendant as charged in the declaration, or either of the counts thereof,” is certainly not to be commended, especially in view of the fact that there were counts in the declaration to which a demurrer had been sustained, and also a count which alleged the plaintiff was a passenger toward whom the highest degree of care was due from appellant. See, Ill. C. R. R. Co. v. King, 179 Ill. 91. The instruction is, we think, faulty in that it fails to include essential elements necessary to sustain a verdict. Passing over other instructions complained of, the alleged defects of which will probably be remedied upon another trial, we are of opinion that appellant’s objections to appellee’s seventh instruction are well founded. In-that instruction the jury are told that they may take into consideration “ to what extent, if any, she had been injured or marred in her personal appearance and to what extent she may have endured physical suffering as a natural and inevitable result of such injuries,” etc. The marring of personal appearance and humiliation resulting from contemplation of bodily disfigurement are not elements entering into the computation of pecuniary damages for personal injuries sustained by reason of alleged negligence. C. & G. T. Ry. Co. v. Spurney, 69 Ill. App. 549-552, and cases there cited. Chicago City Ry. Co. v. Canevin, 72 Ill. App. 81-88. The judgment of the Circuit Court must be reversed and the cause remanded.