Moore v. Bloomington, Decatur & Champaign Railroad

Mr. Presiding Justice Graves delivered the opinion of the court. Appellee’s decedent was killed at the intersection of a public highway and the railroad tracks of appellant at what is known as Swartz crossing, by a collision between an automobile he was driving and an electrically propelled car belonging to and being operated by the servants of appellant on its tracks there. Appellant concedes that the controversy turns on whether the accident was due to some negligence charged in the declaration or to the contributory negligence of the deceased. Appellee secured a verdict and judgment for $5,000. The motion of appellant for a peremptory instruction was properly refused. There was evidence from which, without doing violence in the eye of the law, the jury could find the verdict returned. Libby, McNeill & Libby v. Cook, 222 Ill. 206. More than that, a careful consideration of all the evidence in this case leaves us unable to say that the verdict is wrong on the facts either as to the charge of negligence on the part of appellant or as the contributory negligence on the part of the deceased. It is charged in the declaration that the railroad was so obscured by embankments, weeds, trees and other objects nearby that persons approaching the Swartz crossing could not see the approach of cars from the east on appellant’s tracks, and proof was offered in support of that allegation. Proof of other accidents at this same crossing at previous times under similar circumstances was also admitted. That was not error. The speed of a car run on the tracks of appellant approaching the Swartz crossing might be negligent or not according to known dangerous conditions there existing. If that crossing was by reason of conditions charged in the declaration inherently dangerous, proof of other accidents occurring there under similar circumstances would tend to show not only that the conditions there were inherently dangerous but would also tend to show knowledge on the part of appellant of such conditions, and knowledge of inherently dangerous conditions would require of appellant the running of its train with reference thereto. The Supreme Court said of such evidence: “This evidence was competent, not for the purpose of showing independent acts of negligence, but as tending to show that the common cause of accidents was a dangerous and unsafe thing and the frequency of such accidents also tends to raise a presumption of knowledge.” City of Chicago v. Jarvis, 226 Ill. 614; City of Bloomington v. Legg, 151 Ill. 9; City of Taylorville v. Stafford, 196 Ill. 288. Counsel for appellee in his argument to the jury began to quote what some newspaper had said about corporations that had “no soul to damn,” but was stopped by an objection that was sustained by the court and did not complete his quotation. It is not apparent how appellant could have been injured by the incomplete quotation. . The 9th instruction given for appellee dealt with the right to prove by circumstantial evidence the habits of the deceased for care. It is in accord with what has already been said on that subject. The giving of it was not error. The twenty-first instruction given for appellee was as follows: “The court instructs the jury that if you believe from a preponderance of the evidence that plaintiff is entitled to recover under any one of the counts of the declaration before you for consideration, your verdict should be for the plaintiff and you should assess the damages at such sum as you believe from the evidence the party for whose use this suit is brought has actually sustained, if any.” It is argued that this instruction is erroneous because the language employed does not in express terms limit the damages to be allowed to “pecuniary” damages. In support of this contention appellant cites the case of Shields v. J. H. Dole Co., 168 Ill. App. 362. What is there said on this subject is clearly in conflict with the holdings of our Supreme Court in Illinois Terminal R. Co. v. Thompson, 210 Ill. 226, and in Illinois Cent. R. Co. v. Cozby, 174 Ill. 109, and in many other cases. It was not error to give this instruction. Four instructions offered by appellant on the question of the duty of appellee to prove that the deceased was in the exercise of due care for his own safety, and the effect of contributory negligence of the deceased upon the right of appellee to recover, were properly refused. There is no necessity for the repetition of the same proposition of law over and over again in the same series of instructions. The jury in this case were fully and fairly instructed on the subjects contained in the four refused instructions named. The verdict was not excessive. It is not too much to expect that a man of 64 years of age, well to do, actively engaged to the business of conducting three farms, and in good health with an. expectancy of more than 15 years would in those 15 years be of more benefit to his next of kin than $5,000. The judgment of the Circuit Court is affirmed. Judgment affirmed.