text:
    Walter J. Gibbons, Administrator, Appellee, v. Aurora Elgin & Chicago Railroad Company, Appellant.
    Gen. No. 16,918.
    1. Railroads—injuries at crossings. In an action for causing death of plaintiff’s intestate at a street crossing, the violation of a village speed ordinance by an interurban electric road constitutes negligence.
    2. Railroads—contributory negligence. In an action for causing the death of plaintiff’s intestate at a crossing of defendant’s road, where the negligence of defendant’s motorman in violating a speed ordinance is a proximate cause of the accident, if intestate’s negligence was concurrently necessary to produce it, there can be no recovery.
    3. Evidence—presumptions. In an action for the death of plaintiff’s intestate, a hack driver, there is a presumption of law that he knew of a village speed ordinance affecting the speed of trains and cars at the place of the accident.

      4. Railroads—contributory negligence. A driver is not guilty of negligence in attempting to cross the track ahead of an approaching car, if the jury find under the evidence that he could be said to reasonably appear to have time to cross.
    5. Railroads—speed ordinance repealed after accident. In determining whether defendant in a personal injury action is guilty of negligence in violating a village speed ordinance, it is immaterial that the ordinance was repealed subsequent to the accident.
    6. Ordinances—where legislature has given power to pass. A village speed ordinance is not void for unreasonableness where the power to pass it has been specifically conferred by the legislature.
    7. Ordinances—construction of provision fixing speed limit. In a personal injury action, where defendant is charged with negligence in violating a village speed ordinance, a section of the ordinance providing that cars and trains should not be run faster than a certain rate unless there has been compliance with other sections regarding erection of gates and safety appliances, when construed in connection with the following section which provides that the preceding section shall remain in full force until such appliances shall be constructed and in operation, means that the speed limit is imposed on defendant unless it puts up gates and applies for a permit to run faster.
    8. Death—where instruction referring to possibility of intoxication is improper. In an action for the death of plaintiff’s intestate, an instruction offered by defendant which referred to a possible belief on the part of the jury that deceased was at the time of the accident intoxicated, and their proper action in such contingency, is properly refused where there is no evidence tending to show intoxication.
    9. Railroads—presumption of negligence where defendant violates speed ordinance. In an action for death of plaintiff’s intestate, where defendant railway company is charged with negligence in violating a speed ordinance, an instruction to the effect that if the jury believe from the preponderance of the evidence that deceased was killed while in the exercise of ordinary care for his own safety and that defendant company was running its car at a greater speed than ten miles an hour, then the law presumes the death to have been caused by the negligence of defendant or its agent, is not reversibly erroneous where in other instructions the jury are instructed that there can he no recovery if deceased’s negligence is a concurrent proximate cause.
    10. Instructions—when not reversible error to refuse proper instruction. It is not reversible error to refuse proper instruction where another instruction which is given contains the essential gist of the instruction refused.
    11. Railroads—contributory negligence at crossing. Where a hackman attempted to cross in front of an electric interurban train at a village crossing, his contributory negligence is for the jury when he drove on the right of way after a freight train on a parallel track had passed, the interurban train was five hundred or six hundred feet away at that time, the distance to be driven was about eighty feet and the electric train was running forty-five to fifty miles per hour, but was limited by ordinance to a speed of ten miles per hour.
    Baker, J., dissenting.
    Action in case for death by alleged wrongful act. Appeal from the Superior Court of Cook county; the Hon. Paul McWilliams, Judge, presiding. Heard in this court at the October term, 1910. Affirmed.
    Opinion filed March 4, 1913.
    Rehearing denied March 17, 1913.
    Hopkins, Peppers & Hopkins, for appellant.
    Richard J. Cooney and Francis J. Woolley, for appellee.
   Mr. Justice Brown

delivered the opinion of the court.

This is an appeal from a judgment of the Superior Court of Cook county for $3,000, rendered on the verdict of a jury in a suit brought against the defendant under the “Campbell Act” of Illinois, for causing the death of the plaintiff’s intestate by negligence.

The defendant, who is appellant in this court, contends that the judgment should be reversed,

First: Because the plaintiff was shown so clearly by the evidence to have been guilty of contributory negligence that it was the duty of the court to have instructed the jury peremptorily for the defendant, or at the least have granted a new trial on the ground that the verdict was against the weight of the evidence.

Secondly: Because instructions which should have been given were refused, and an instruction which was given should have been refused.

Thirdly: Because the court erred in admitting in evidence an ordinance of the Village of Bellwood, inasmuch as

a. The ordinance had been repealed at the time of the accident.

b. It was a void ordinance, hot being within the power of the Board of Trustees to pass.

c. A proper construction of it does not impose a speed limit in this case as contended by appellee.

The facts of the accident as shown by the evidence are these:

The plaintiff’s intestate, Newman, was a hack driver. He was a sober, industrious man, 28 years old, with good eyesight and hearing, who had- been driving a cab or hack for at .least ten years. He occasionally drove a carriage in a funeral procession to Oak Ridge Cemetery. Oak Ridge Cemetery is reached from Chicago by the road called Madison street running west and after the village of Bellwood, just beyond Maywood, is passed, by a road running south from Madison street for a mile and a half. Although the general direction of Madison street is practically due west in the village of Bellwood, there is a jog or elbow in it which makes it run for about 300 feet north and south at right angles with its usual course and then turn again to the west. This north and south piece of the road first runs across the right-of-way of the Chicago and Great Western, Railway, which is a hundred feet wide, and then across the right-of-way of the Company defendant herein, the Aurora, Elgin & Chicago Railroad Company. This right-of-way lies immediately south of and adjacent to the right-of-way of the Chicago & Great Western Railway and is also a hundred feet wide. The other hundred feet of the jog are made by the length of the road from its turn at the north before reaching the Great Western right-of-way and from the defendant’s right-of-way to the turn at the south. The Great Western Railway is an ordinary steam railroad; the Aurora, Elgin and Chicago Railroad is an electric interurban road running between Chicago and Aurora, a distance of about 60 miles, and between Chicago and Elgin, which is about two miles longer. The roads to Elgin and Aurora diverge at Wheaton beyond Bellwood. Each right-of-way had a double track in it at the time of the accident, but these tracks did not occupy the whole right-of-way. Between the south rail of the south track of the Great Western and the north rail of the north track of the Aurora, Elgin and Chicago was a space of 77 feet and 8 inches, and from the south rail of the south track of the Aurora, Elgin and Chicago to the turn to the west in Madison street is 83 feet and 6 inches.- There are platforms about eight feet square northwest and southeast of the crossing of the Aurora, Elgin & Chicago tracks and Madison street, which serve as stations and the crossing is a regular stopping place for local but not for express trains, but few people get on and off trains at this crossing, however. The country is very open and the track runs from Madison street east for about 3,500 feet entirely straight and then curves gently to the south. There is but one house within half a mile radius of the crossing, and that is situated about 400 feet east and 200 feet north of the crossing.

West of the crossing Madison street runs parallel with and adjacent to the railway for about 1,600 feet and then diverges somewhat to the south. The direction of the railroad is the same on both sides of the crossing. Thus the view to a person on Madison street west or at the crossing is unobstructed for a long distance to the east.

April 8, 1908, the plaintiff’s intestate, Frederick Newman, had driven his hack in a funeral procession to Oak Ridge. With an empty carriage he was returning from the funeral ahead of any of the other carriages and with but one near him. This was driven by a man named Jensen and was perhaps 200 feet behind Newman’s when the .latter arrived at the turn or jog and turned north. Thirty feet or so south of the defendant’s tracks, Newman, who was sitting on the ordinary driver’s seat of a hack, five or six feet above the ground, stopped his horses for a brief time, awaiting the passage over the crossing of a freight train which had been coming east on the Great Western tracks toward the crossing, while Newman and Jensen had been driving their hacks east on Madison street. The train had been moving at about the same rate as the carriages—six or seven miles an hour. When Newman made the turn and stopped, the engine of the freight train was still- about 100 feet west of' the crossing. The freight train was composed of 17 cars, a caboose and the locomotive. Its length must have been very nearly 700 feet. The engineer of the freight train says he saw Newman on his feet, coming-forward, and his horses galloping on the crossing (although he says he doesn’t know whether Newman was urging the horses, it is very plain that he was) just as an electric car coming from the east on the defendant’s road passed him, was “pretty near on a line with me,” he expresses it. This confirms his further testimony that the electric car was at this time, when Newman was attempting this passage, at least five or six hundred feet away from the crossing. It was, however, going, as is practically conceded, from 45 to 50 miles an hour—something probably over 70 feet in a second—-and it would take only eight seconds or so at that rate to reach the crossing; while the horses and carriage at their quickest possible movement would at least take that time to cross the defendant’s right-of-way.

There were no witnesses produced by the defendant who saw the accident or who testified to the speed of the car or its distance away when Newman first started to cross the tracks. No witnesses indeed were called by the defendant- except the chief engineer of the Company, who testified to a plat, and a photographer, who verified photographs of the locality which were put in evidence.

The witnesses for the plaintiff who saw the accident were Jensen, before mentioned, a passenger on the electric car, a Mr. Abbott, and the engineer of the freight train, Mr. James L. Moore. They vary somewhat in their testimony, especially as to the important matter of the distance of the electric car away when Newman attempted to cross the tracks, but not more so than the spectators of such an exciting catastrophe as happened might be expected to do without any disposition to depart in the least from the truth. Thus Abbott would place the car farther away than Moore even, while Jensen placed it within 300 feet.

But from a careful analysis of the evidence, we think it fair to say that the jury might properly have believed Moore’s testimony to have been on the whole the most precise and exact of the statements made. It would appear to us, from the evidence, that as soon as the last car of the freight train passed, Newman started up his horses, hesitated an instant as he reached the tracks and then urged his horses forward to clear the tracks ahead of' the approaching electric car, which was then perhaps five or six hundred feet away and which he saw approaching. He did not succeed, however. The car, approaching at the great speed heretofore indicated, struck the carriage squarely on the side, smashed it and carried the debris five hundred feet on, releasing the horses and causing the death of Newman, who was thrown into the air.

We do not think that the jury can be said to have followed all the instructions of the trial judge in this case, for one of the instructions given at the instance of the defendant is the following:

“If the jury find from the evidence that both the motorman and Mr. Newman, the deceased, supposed that Newman would be able to get across the track without being struck by the car, and that in so doing they both erred in their judgment in respect to the matter, and that the accident was due to such error in judgment on their part, then plaintiff cannot recover and your verdict must be for the defendant.”

We think that the evidence clearly tends to show that Newman could and did see the electric car approaching. In consequence, we must suppose that unless he intended to commit suicide, which the presumption is against, he “erred in judgment” and supposed, contrary to the fact, that “he would be able to get across the track without being struck by the car.”

But it is equally plain on the other hand, that the motorman “erred in judgment” in supposing that “Newman would be able to get across the tracks without being struck by the car,” either by being able to pass in front "of the car, or by waiting and passing behind it. To suppose otherwise would be to impute wanton and deliberate malice to the motorman, for the existence of which nobody contends.

We are unaware of any authority for such an instruction, but it cannot be complained of by the defendant, and it had no effect and did no harm. We have mentioned it as suggesting, notwithstanding its inaccuracy, the real questions at issue.

Did the running of the car by “an error of judgment” across this jog in Madison street at the rate of 45 or 50 miles an hour, when Newman was crossing it, constitute negligence? And did Newman’s “error ■ of judgment so clearly constitute contributory negligence as to make it a matter of law, which should have resulted in a peremptory instruction, or so clearly as a matter of fact as to show that the motion for a new trial should have been granted after the verdict for the plaintiff ?

The answers to these questions depend in our view, much on the existence, validity and effect of the speed ordinance of the village of Bellwood introduced in evidence.

There might something be said in favor of the proposition that even without a speed ordinance, it would be negligent at such a high rate of speed to run without slackening even an express train over this jog in a well traveled road. It might be a factor too in the matter that there were no gates, although the tracks were fenced except at the crossings; and that there were station platforms which might mislead people to suppose that all trains would slacken speed as approaching a stopping place. But we should not be willing to hold that, without more knowledge or notice than is shown here that Newman would attempt the crossing, the motorman of the defendant’s car was guilty of negligence in the present ease, if it were not for the existence of the ordinance. But in view of that ordinance, if it existed and was valid, there can be no doubt of such guilt. The defendant and its servants were bound to obey the law, and negligence is established by its violation. Heiting v. Chicago, R. I. & P. Ry. Co., 162 Ill. App. 403, and cases therein cited, on page 410; and Heiting v. Chicago, R. I. & P. Ry. Co., 252 Ill. 466, 471.

Not only is this the general law in relation to violations of statutes or ordinances—which are the proximate cause of damage—but there is a special provision in the Revised Statutes of 1874, re-enacted in an amending Act approved May 22, 1877, undoubtedly designed to apply particularly to “crossing accidents,” which provides that:

“Whenever any railroad corporation shall by itself or ag’ents run any train, locomotive engine or car, at a greater rate of speed in or through the incorporated limits of any city, town or village than is permitted by the ordinances of such city, town or village, such corporation shall be liable to the person aggrieved for all damages done the person or property by such train, locomotive engine, or car, and the same shall he presumed to have been done by the negligence of said corporation or their agents

That the violation of the ordinance, if it existed, constituted negligence, and that it was also a proximate cause of the accident, we think clear. The ordinance of the village of Bellwood in question provided, so far as this electric road was concerned, that it should be unlawful for it to operate or run within the limits of the village of Bellwood a car at any speed greater than ten miles an hour. If the speed had been but ten miles an hour instead of four or five times that, Newman would have had his carriage as well as his horses across the tracks before the car reached Madison street.

Assuming the ordinance to have been valid, it has also, in our opinion, a very marked application to the question concerning the alleged contributory negligence of Newman. This seems to us the crucial point of the cause. The evidence tends very clearly to show that Newman must have seen and probably heard the approaching car from a position back of the turn, and at least must have seen and heard it after making the turn and while waiting for a minute the passage of the freight train on the Great Western tracks. Even though the negligence of the motorman was a proximate cause of the accident, if Newman’s own negligence concurrently was necessary to produce it, his administrator "cannot recover. Although it was not as easy for him at a distance of five or six hundred feet to estimate the speed of the approaching car as it was for the trained eye of the locomotive engineer, Moore, as it passed him, yet he must have seen that it was traveling rapidly and had he no reason to suppose that its speed was less than it really proved to be, or that it was slackening its speed and would probably slacken it still more as it approached the crossing, we might find it difficult to resist the conclusion that all reasonable men must hold, despite the presumption against a wish for self-destruction to which he is entitled, that Newman was guilty of negligence in trying to cross ahead of the car. If thus trying to cross was negligence, that it contributed materially and proximately to the accident, goes without saying. But we cannot assume that Newman was ignorant of the ordinance of the Village of Bellwood. The presumption as a matter of law is the other way, and it is no violent presumption of fact that a hack driver having frequent occasion in funeral processions to pass over this road knew of the ordinance affecting the speed of trains and cars at this dangerous grade crossing. If he did know of it, then he knew that at just about the point which the electric car had reached when he attempted to cross the track, it went into effect and might be supposed to regulate the speed of the further approach of the car. We think this a reasonable and sound doctrine and borne out by authority, notwithstanding ¿ careful consideration which we have given to the appellant’s argument to the contrary. St. Louis, V. & T. H. R. Co. v. Dunn, 78 Ill. 197; Cleveland, C., C. & St. L. R. Co. v. Baddeley, 150 Ill. 328; Baltimore & O. S. W. R. Co. v. Then, 159 Ill. 535.

We think, on the whole, assuming the existence and . validity of an ordinance limiting the rate of speed of this car while in Bellwood to ten miles an hour, it became a fair question for the jury under the evidence whether Newman could be said “to reasonably appear to have time to cross the track” ahead of the car. If he could, he was not guilty of contributory negligence forbidding recovery. Baltimore & O. S. W. R. Co. v. Keck, 185 Ill. 400-404.

It is contended, however, by the appellant that there was no valid speed ordinance in evidence in this case, and that the admission of the record purporting to be such ordinance was erroneous. Of course such a conclusion would deprive the appellee of the benefit of that presumption as to the negligence of the Company and of that excuse for the unfortunate action:of the deceased which the view we have expressed is based on. But we cannot assent to the appellant’s propositions concerning the ordinance in question. That it existed of record as the action of the Village Trustees of Bellwood at the time of the accident is conceded, but it is maintained by appellant, firstly, that as since the accident the ordinance has been repealed, the position of the parties in this case must be considered in every respect as though it had never existed. This proposition is entirely untenable. The ordinance gave no “ vested right” and the repeal took away no vested right.” Whether either a defendant or a plaintiff in a personal injury case has been guilty of negligence depends on whether he has acted without the care which, under the circumstances, the law, statutory or common, imposed on him as a duty, and the existence of the ordinance at the time of the accident was, in this case, a very material and, in our opinion, a determining factor in the question. Whether the extent or nature of the duty was changed afterward by further legislation, is of no consequence. Secondly, it is maintained by appellee that the ordinance was void because unreasonable. We should be reluctant, by so holding, to overrule the very apparent opinion of the Legislature of Illinois as shown by the history of the legislation by which “speed ordinances” in incorporated cities, towns and villages are authorized and effect given to them.

By an Act approved February 16,1865, the presumption of negligence and a liability for damages done by a train or engine was attached to any railroad company which ran faster within such city or village than was permitted by the ordinances of such municipality and no minimum limit was fixed for the speed to be allowed.

When the statutes were revised in 1874, the substance of this Act was re-enacted with additions including a proviso that no such ordinance should limit the rate of speed in any case to less than four miles per hour. By an amendatory Act approved May 22, 1877, the Act was changed in this proviso only,— the proviso being by it made to read “that no such ordinance shall limit the rate of speed in case of passenger trains to less than ten miles per hour, nor in any other case to less than six miles an hour.”

• The ground for holding an ordinance void on the score of its unreasonableness must be the want of power conferred by the legislature to pass an unreasonable ordinance. The power to pass this ordinance was, if not expressly, by the strongest possible implication, given by the legislature of Illinois.

A third objection made by appellant is that the speed limit never was in force because it is only imposed by section 8 of the ordinance, which reads as follows:

“It shall be unlawful for any person, firm or corporation, its agents, servants or employees to operate or run within the limits of the Village of Bellwood trains, engines or cars at any speed greater than the rates herein named, to-wit: Passenger trains and light or disconnected engines, ten miles per hour, freight trains, eight miles per hour, unless such person, firm or corporation has complied .with the pro- ' visions of this ordinance respecting the erection and maintenance of walls, fences, gates and other safety appliances.”

If, appellant says, there is no evidence that it has so complied, there is no evidence that it has not, for the other sections of the ordinance providing for said appliances only require them of the railroad company, in case the Village Trustees shall declare them necessary and direct their construction and notify the railroad company of their resolution, and there is in this case no proof of any such declaration, resolution or notice.

This proposition concerning the ordinance seems less untenable than the ones just discussed, but on full consideration of all the sections of the ordinance introduced in evidence, we cannot accede to it.

Section 9 of the ordinance, immediately following the one before quoted, reads:

“It is expressly provided that section & of this chapter shall remain in full force and effect until the walls, fences, gates and appliances provided for in this ordinance shall be constructed and in operation, provided, however, that the Board of Trustees shall have the right to allow any person, firm, company or corporation permission to run their trains at a higher rate of speed, but not greater than twenty-five miles per hour for passenger trains and fifteen miles per hour for freight trains, whenever such person, firm, company or corporation shall have constructed and commenced operating the gates as herein required; provided, further, if the Board of Trustees shall be satisfied that such person, firm, company or corporation is proceeding as rapidly as practicable to comply with all the provisions and conditions contained in this article and whenever in their opinion it shall be deemed expedient and proper to grant such permission; provided, however, that any permit granted under the provisions of this Section shall be in writing attested by the Village Clerk and the same shall be subject to revocation at any time the Board of Trustees shall so elect.”

We think, after full consideration, that the appellee is justified in his position that the ordinance taken together, although awkwardly expressed, means that the speed limit mentioned in section 8 was imposed on the appellant unless the Council did something more, “or the railroad itself put up gates and applied for a permit to run faster, thus voluntarily complying with the provisions of the ordinance.”

Nor do we see any merit in the contention that as Section 3 speaks of the Village Board proceeding by resolution for the instalment of gates, while police regulations must, by statute, be by ordinance, the whole ordinance is void.

We hold, therefore, that the ordinance was in force and a speed limit of ten miles an hour imposed on the appellant at the time of this accident, and that there was no error in admitting the ordinance in evidence.

The other grounds of reversal urged by the appellant relate to the instructions given and refused and to the alleged impropriety in the argument made by the plaintiff’s counsel to the jury. We do not deem the latter point well taken. The damages were not excessive and their amount shows, we think, that the jury could not have been influenced prejudicially to the defendant by the language used by the plaintiff’s counsel to which objection was taken and sustained.

The refusal of the instruction offered by the defendant as No. 3 was clearly right. It referred to a possible belief on the part of the jury that the deceased was at the time of the accident intoxicated and their proper action in such contingency. There was no evidence whatever in the record tending to show deceased’s intoxication. Such evidence as even remotely bore on it showed that it was impossible that he should have been intoxicated. That the witness Decider, who had known him for at least fifteen years and who had testified that he was an industrious, sober, steady man, had sometimes seen him drink beer and sometimes a little whiskey—“never two drinks”—was no evidence tending to show intoxication. Nor was the fact that on his return from the funeral he stopped at a roadhouse, where there was a bar, and got his dinner, such evidence. Jensen, who was with him at the roadhouse, testified- twice that Newman did not drink anything there, although on cross-examination admitting that he could not say of his own knowledge anything more than that he did not see him drink.

Complaint is made also of the refusal of the first • instruction offered by the defendant. We think the instruction might well have been given as the most specific one offered on the theory that Newman did not see the approaching car, but in view of the fact that we do not think it practically possible that the jury, under the evidence, should have held that.Newman did not see the car, and upon the stronger ground that although not so specific, the given instruction 6 did contain the essential gist of the doctrine contained in the refused instruction by declaring that the law made it Newman’s “duty to give that attention to the sights and sounds warning him of approaching trains that men of ordinary caution would give under like circumstances,” we cannot say that we deem its refusal reversible error.

The ninth instruction given at the plaintiff’s request reads:

“The Court instructs the jury that if they believe from a preponderance of the evidence that the deceased, Frederick Newman, was killed within the corporate limits of the Village of Bellwood by a car of the defendant company while he was in the exercise of ordinary care for his own safety, and that the defendant company was at the time running its said car at a greater rate of speed than ten miles an hour, then the law presumes the death of the said Frederick Newman to have been caused by the negligence of the defendant or its agents.”

This instruction, based on the legislative Act heretofore quoted, we do not regard as a perfect or desirable one. The. Appellate Court of the Third District expressed its disapprobation of one practically identical in Cleveland, C., C. & St. L. R. Co. v. Dukeman, 130 Ill. App. 105; and this court did the same in Chicago & W. I. R. Co. v. Zerbe, 110 Ill. App. 171, in which cases judgments were reversed because it was given, and the Supreme Court criticised a similar one in Chicago, B. & Q. R. Co. v. Haggerty, 67 Ill. 113, and in Dukeman v. Cleveland, C., C. & St. L. R. Co., 237 Ill. 104, in both of which cases, however, it refused to consider it reversibly erroneous.

But although we think, as the Supreme Court said in the Haggerty case, that “The instruction is no doubt somewhat open to the objection made that it might be understood by the jury that the presumption * * * was conclusive and not subject to be rebutted,” we do not think, on consideration of all the evidence and the other instructions in this case, there can. be any more" reason for holding this objection fatal to the instruction or to the judgment than existed in the cases cited, in which the Supreme Court refused so to consider it.

There can be no doubt, as we have hereinbefore pointed out, that the death of Newman was caused by “an error of judgment” on the part of two people— that of the motorman, who “judged” either that Newman would clear the tracks before the car, at the rate of speed that it was going would reach the crossing, or that Newman would stop south of the tracks until the car had gone by; and that of Newman himself, who “judged” that the car would not reach him before he crossed, either because he miscalculated the length of time it would take him to get across, or the length of time it would take the car to get to the crossing. The “misjudgments” of both people were necessary to cause the death. But in running the car at the speed he did, the motorman, because of the ordinance, was guilty of negligence as a matter of law, and in this sense the instruction is accurate in saying that the “law presumes the death of the said Frederick Newman to have been caused by the negligence of the defendant or its agents.” There could be no question that this negligent speed of the car was a “proximate cause.” But if there was another concurrent proximate cause, and that was the negligence of Newman himself, the plaintiff could not recover. If the court had failed so to instruct the jury, the instruction complained of would have been misleading. But it did not so fail. In the instruction itself, it makes the condition that Newman “must have been in the exercise of ordinary care for his own safety,” and in one other . instruction, given at the request of the plaintiff, and in at least five given at the request of the defendant, the jury were given clearly to understand that Newman must have been in the exercise of ordinary care for his own safety and not negligent, or the plaintiff could not recover.

Nor does the instruction, like the one in Chicago, B. & Q. R. Co. v. Appell, 103 Ill. App. 185, say that the presumption extends to the defendant’s being liable.

Assuming the existence and validity of the ordinance, the only real question of fact in the case was whether Newman was guilty of contributory negligence. On this point we do not think the jury were misled by this or any other instruction. It was the question presented to them by the evidence and instructions taken together. They answered it by their verdict in the negative, and we do not think that their answer was so clearly and manifestly wrong or against the weight of the evidence that we should disturb the judgment, which is accordingly affirmed.

Affirmed.

Mr. Justice Baker dissents.


source: Caselaw Access Project

author: Mr. Justice Brown

license: Public Domain

text:
    Margaret E. Sisson, Administratrix, Appellant, v. Union Mutual Life Insurance Company, Appellee.
    Gen. No. 16,903.

      Insurance—extended insurance. Where a policy of life insurance provides that it is entitled to the benefits of the Maine Non-Forfeiture Law, under which a policy, after being in force three years, is continued in force notwithstanding failure to pay premiums, by applying a certain portion of the net value of the policy as a net single premium of temporary insurance, and such policy contains in a margin a tabulated statement entitled “Insurance under this policy secured for,” wherein the respective numbers of years and days appearing opposite to different numbers in a column entitled “Annual premiums paid in cash before lapse,” according to the testimony of actuaries include the entire period of insurance indemnity in each case under such law, even if such tabulated statement be assumed to be a part of the policy, the word “secured,” according to its natural significance, is to be construed as indicating the duration of the entire periods of insurance, including the years for which premiums were paid, and not the periods for which such insurance is extended.
    Smith, P. J., dissenting.
    Appeal from the Superior Court of Cook county; the Hon. Theodore Brentano, Judge, presiding. Heard in this court at the October term, 1910.
    Affirmed.
    Opinion filed March 4, 1913.
    O’Bryan & Marshall, for appellant.
    Frank L. Wean and Henry W. Wales, for appellee.
   Mr. Justice Brown

delivered the opinion of the. court.

This appeal is from a judgment of the Superior Court of nil capiat and for costs against the plaintiff and appellant, Margaret E. Sisson, administratrix of the estate of one George D. Sisson, deceased, and in favor of the defendant and appellee, The Union Mutual Life Insurance Company.

The cause was tried before the court without a jury, and the issues found for the defendant. Propositions of law were submitted to the court before this finding both by the plaintiff and the defendant. Some of these were held and some refused. Among those refused was the first one offered on behalf of the plaintiff. It completely sets up the theory of the plaintiff on which she claims to recover, and recites the evidence which, as she claims, sustains her case. Its transcription laere, therefore, will serve, with some additions to be hereafter noted, as a statement of the case, the claims of the plaintiff therein and the action of the court. It is as follows:

“The Court holds that if the evidence shows that a policy of life insurance was issued by the Union Mutual Life Insurance Company of Portland, Maine, defendant herein, for $15,000 on the life of George D. Sisson and dated May 15, 1889, and numbered by the said company 91109, and was held by the saia George D. Sisson, conditioned payable in the event of his death to 'his executors, administrators or assigns, and if the evidence further shows that in said policy of insurance it was provided as follows:
“9. That after the payment of three full years’ premiums in cash this policy is entitled to the benefits of the Maine Non-Forfeiture Law, and if this policy shall become entitled to extension under said law, the present value of any reversionary additions standing to its credit shall be used to further extend the original amount of this policy. ’
“And if as a part of the policy at the time it was issued there was written upon the face of the policy a table as follows:
MAINE NON-FORFEITURE LAW.
“And if the evidence further shows that the said George D. Sisson died on or about the 10th day of August, 1899, and that proofs of death Of the death of the said George D. Sisson was furnished to the Union Mutual Life Insurance Company in accordance with the conditions of said policy and that (4) annual premiums had been paid the said defendant in cash from the date of said policy and that the premium due upon the policy on the 15th day of May, 1893, was • paid by the said George D. Sisson by promissory note dated May 15,1893, which note is in words and figures as follows, to-wit:
‘$713.40/100 (Grand Rapids Nat’l Bank,
Coll. May 15, 1893.
Grand Rapids, Mich.)

For value .received by a loan on Policy No. 91109 issued by the Union Mutual Life Insurance Company, Four months after date I promise, to pay to the order of said Company Seven Hundred thirteen and 40/100 Dollars at Grand Rapids Nat’l Bank, Grand Rapids, with interest at six per cent, per annum.

This note is given on account of said policy and unless the principal and interest are paid when they severally become due, said policy then lapses as for non-payment of premium when due.

No. 4313. Due Sept. 15/18, 1893.

Geo. D. Sisson. ’

(Written across the face of this note is the following): ‘Time for payment of the within ■note is hereby extended to May 1st, 1894, with interest at six per cent, per annum from May 15, 1893.’

(Also written across the face of said note is the following') :

‘ Cancelled under terms of Me. N. F. Law.’
(Endorsed on Back): ‘ Collect and Credit Account
Union Mutual Life Insurance Co., John E. DeWitt, President.
Collect and Credit Account Union Mutual Life Insurance Co., Fred E. Richards,
President. ’
“And if the evidence further shows that at the time said note was issued by said George D. Sisson and <> delivered to the Union Mutual Life Insurance Company, defendant herein, a receipt was given to the said George D. Sisson for said note, which said receipt is in words and figures as follows, to-wit:
‘Union Mutual Life Insurance Company, Portland, Maine.
John E. DeWitt, President.
Received from the owner of Policy No. 91109 by promissory note $713.40, being the annual cash premium on said policy due on the 15 day of May, 1893, but if said note is not paid at maturity, the policy then lapses as for non-payment of premium when due.
Arthur L. Bates,
Secretary. ’
And if the evidence shows satisfactory proofs of death of the said George D. Sisson was furnished the Company, then the Court holds that the policy was continued in full force and effect for seven years and one hundred and seventy four days from May IS, 1893, and was in full force and effect at the time of the death of the said George B. Sisson on or about August 10,1899.”

It is not contended by the appellee herein that any part of the hypothetical case which is made the basis of the proposed holding of law is not a correct statement of that which the evidence actually showed in the case at bar, except the supposition or implication that the table described and set out was “a part of the policy at the time it was issued.”

The court did not hold the said table or tabulated statement a part of the policy, but as a proposition of law (tendered by the defendant—No. 7) held:

“As a matter of law, that the tabulated statement contained in the margin of the Policy of Insurance No. 91109, which said policy is in evidence in this case, is no part of the said policy of insurance nor is said tabulated statement a part of the contract between the defendant and the assured.”

We assume, however, that the court below meant, as its refusal of the proposition would strictly imply, to negative the liability of the defendant even on the assumption that the table in question was to be considered a part of the policy as well as on the assumption that it was no part of the policy.

We have at all events considered the liability of the defendant on both said assumptions and reached the conclusion that it exists in neither case.

The additions to be made to the hypothetical case set forth in the refused proposition above given are these:

The policy was introduced in evidence by the plaintiff. It contains the following provisions:

‘ ‘ 8. Surplus will be apportioned to this policy only at the expiration of five years from its anniversary date and annually thereafter, and then only if the policy is in full force by the payment of premiums. Such apportionment will be made in the form of reversionary additions, but the value of the same may at the option of the insured be applied to the reduction of the sixth and subsequent premiums. When thus applied the receipt of the insured shall be a valid release to the Company. But if this policy becomes a claim within five years from its date and it is in full force by the payment of premiums, the Company will pay a mortuary dividend equal to fifty per cent, of the amount of premiums previously paid herein.
‘ 9. That after the payment of three full years ’ premiums in cash this policy is entitled to the benefits of the Maine Non-Forfeiture Law, and if this policy shall become entitled to extension under said law, the present value of any reversionary additions standing to its credit shall be used to further extend the original amount of the policy.
“10. At the end of every period of five years (the first commencing on the anniversay date of this policy) if this policy is then in full force by the payment of premiums, the owner upon surrender thereof at the Home office of the Company within sixty days •thereafter, shall be entitled to receive the value thereof as he may elect as follows:
“(1) In cash, (2) in a life indemnity, or (3) in a paid up, non-participating policy on the same plan; the value of the policy in each case shall be the same as is applied in extension of a policy under the Maine Non-Forfeiture Law.”

The table or tabulated statement, a portion of which appears in the first proposition of law offered' by the plaintiff as before set forth, is not alluded to or described in the policy, but is appended thereto following the signatures of the president and secretary, as the copy of- said policy appears in' the transcript of the record. In the propositions of law before given, presented by the plaintiff, it is alluded to. as “written upon the face of the policy.” In the proposition of law presented by the defendant and held by the court, as before given, it is described as “contained in the margin of the Policy.”

The table is only partially given in the proposition of law before set forth. It is extended to show the “Insurance secured” by the payments of “annual premiums” up to 30, and the last five items of the table are as follows:

MAINE NON-FOBFEITUBE LAW.

The defendant introduced in evidence the “Maine Non-Forfeiture Law,” the essential parts of which for consideration here are:

“Every life insurance policy * * * which may be forfeited for non-payment of premiums including all notes given for premiums or loans * * * after it has been in force three full years * * * is nevertheless continued in force * * * for a period to be determined as follows, to-wit: The net value of the policy when the premium becomes due and is not paid shall be ascertained according to the combined experience or actuaries table of mortality, with interest at the rate of four per cent, a year; from such net value there shall be deducted the present value of the differences between the future premiums named in the policy and the future net premiums on said policy ascertained according to the rates of mortality and interest aforesaid, in no event, however, to exceed one-fourth of said net value. * * * What remains after deducting any indebtedness to the Company on account of the policy or notes held by the Company against the insured, which notes shall be cancelled, shall be considered as a net single premium of temporary insurance, and the term for which it will insure shall be determined according to the age of the party at the time- of the lapse of the policy and the assumptions of mortality and interest aforesaid * * * If the death of the insured occurs within the term of temporary insurance covered by the value of the policy as determined in the preceding section, and if no condition of the insurance other than the payment of premiums has been violated by the insured, the Company shall pay the amount of the policy as if there had been no lapse of the premium, anything in the policy to the contrary notwithstanding.”

The defendant introduced evidence also that the note set forth above as given in the payment of premium due on May 15, 1893, was never paid, but became due according to an extension of its terms on May 1, 1894, and it being then returned to the Company unpaid, minutes were made on the Company’s books to that effect, and that the policy had gone under the Maine Non-Forfeiture Law, the insurance being thereby extended to January 4, 1896; that on January 4, 1896, the .policy was marked off by the Company as void, the extended insurance under it as having expired, and that subsequent to the 15th day of May, 1893, no premium was ever paid or note given to the Company on the account of said policy.

It then placed on the stand one Joseph H. Nitchie, a life insurance actuary by occupation, but not connected with the defendant Company, who testified that he had experience in computing extended insurance under the terms of life insurance policies under non-forfeiture statutes; that he was familiar with the Maine non-forfeiture law; that assuming that the policy involved in this case lapsed on May 1, 1894, for non-payment of premiums, four annual premiums in cash and one by note having been paid, the insurance would be extended under the Maine law until January 4, 1896; that assuming it lapsed on May 15, 1893, after four cash payments, the extended insurance would have lasted to November 5, 1896; that assuming that five payments were made in cash on the policy and that the policy lapsed as of May 15, 1894, the policy would expire in June, 1898.

The defendant then introduced the testimony of Samuel S. Boyden, an actuary in its employ, who testified that he also had experience in computing extended insurance under the Maine Non-Forfeiture Law; that assuming that the policy in question lapsed on May 1, 1894, the policy would under that law expire on January 4, 1896; that assuming that it lapsed on May 15, 1893, the policy would expire on November 5, 1896; that assuming that five payments were made in cash and disregarding the question of surplus on the policy, the policy was lapsed after the payment on the 15th day of May, 1894, after the payment of the 5th premium in cash—the period of extended insurance to the assured would expire June 3, 1898.

Mr. Boyden further testified that it was noted on the books of the Company that the “surplus” on the policy in question, assuming that five payments had been made in cash, would at the end of five years have been $52.06, and that using that sum to further extend the policy, it would expire on August 2, 1898.

This date of August 2, 1898, is the latest date mentioned by either actuary as the time when under any of the assumptions made the policy would' finally expire.

On the whole case as made, the Court refused to hold “that under the law and the evidence in the cause judgment should be for the plaintiff,” and did hold “that under the law and the evidence in the cause the judgment should be for the defendant.” It was right in so holding. If the “table” appended to the policy is no part of the contract between the defendant and assured, as the court held, there is obviously no evidence tending to show that the policy was in force at the time of the death of George D. Sisson on August 10, 1899. The evidence of the actuaries to the contrary is clear.

The claim of the plaintiff, however, is that the table in question is a part of the policy and of the contract of insurance and the testimony of the actuaries incompetent to change it. But if this were assumed it would not, in our opinion, change the proper disposition of this case. The question would then be—What is meant by the words “insurance under this policy secured for?” Do they mean that the terms respectively indicated below them show the length or duration of the entire periods of insurance indemnity secured by the payment of the number of premiums set opposite each term, or do they mean that these various terms are not the periods of insurance “secured” but the periods for which such periods of insurance are “extended” beyond the terms for which the premiums ostensibly and prima facie pay? We think to ask the question is to answer it. “Secured” means, according to the dictionaries, “assured”, “insured”, “made secure”, “certainly acquired”, “unexposed to danger”, “made safe”, “made certain”,, “guaranteed”, “obtained”, “gained”. It seems to us the natural word to employ to signify that on the payment of four annual payments for example, 7 years and 174 days of insurance instead of the four years for which those four payments would be prima facie compensation would be (because of the non-forfeiture law) “obtained”, “gained”, “guaranteed”, “assured” or “made safe”—but a very inapt word to use to indicate that the four years insurance indemnity period prima facie paid for by the four annual payments was “extended”, “lengthened”, “added to” or “enlarged” by the term for which insurance was thus said to be “secured”. Giving this natural meaning to the words and phrasing of the tabulated statement, it does not, even if it be considered a part of the contract by any possible construction, carry the expiration of the policy beyond June 3,1898, a year and two months before the death of the assured.

Therefore, whether the table in question be or be not considered as a part of the contract of insurance in this case, it is our opinion that the judgment of "the Superior Court is correct, and it is accordingly affirmed.

Affirmed.

Mr. Presiding Justice Smith dissents.


text:
    Orval Brown, by Brazier H. Brown, his next friend, Appellant, v. Chicago, Indianapolis & Louisville Railway Company, Appellee.
    Gen. No. 16,752.
    1. Railroads—obstruction in street. Where plaintiff was riding in a wagon on a street in a village of Indiana and assisting in the pulling of a fire engine behind the wagon hy means of a rope, and the engine was brought to a sudden stop hy an obstruction in the street, eighteen inches high, consisting of a pile of frozen snow and cinders thrown there by employees of the defendant railway company in clearing its right of way, causing the rope to catch and crush one of plaintiff’s legs, the jury is justified in finding the defendant not guilty of negligence under the statutes and decisions of both Illinois and Indiana, where at least sixteen feet of passage in the center of the street had been left clear.
    2. Railroads—duty to clear right of way. A railroad company is not held to the duty of removing all snow from its right of way across a street for the whole platted width of the highway in a small country town where snow is generally only so disposed of as to leave a free and reasonable passage for persons and vehicles, and it is only required to keep its crossings and approaches'so clear that they furnish a suitable passage proportionate to and adequate for the travel on the street and consistent with the condition of the adjacent roadway.
    3. Instructions—quoting opinions where facts different. The arguments of a court in an opinion are to be considered and applied with reference to the facts in the case where made, and the language there used is not necessarily proper language for an instruction to a jury in another case.
    4. Contributory negligence—railroad crossing. Plaintiff, seated in the back of a wagon and pulling a fire engine behind it by a drag rope was injured by being caught by the drag rope when the engine came to a sudden stop on striking an obstruction at a railroad crossing. Eeld, his contributory negligence was a question for the jury.
    5. Contributory negligence—harmless error. Error, if any, in admitting a newspaper publication as to the proceedings of village trustees concerning non-members of the fire department keeping off of the fire wagon, is harmless where the evidence was subsequently excluded, in an action by one injured while drawing a fire engine behind a wagon by a drag rope.

      Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. William H. McStjrely, Judge, presiding. Heard in this court at the October term, 1910.
    Affirmed.
    Opinion filed March 4, 1913.
    Rehearing denied March 20, 1913.
    Morse Ives and H. E. Wynekoop, for appellant.
    Winston, Payne, Strawn & Shaw, for appellee; H. R. Kurrie, John D. Black and John C. Slade, of counsel.
   Mr. Justice Brown

delivered the opinion of the court.

This is an appeal from a judgment of the Superior Court of Cook county. The judgment was of nil capiat and for costs against the plaintiff in the action. It was entered on the verdict of not guilty by a jury to which the cause was submitted. Complaint .is made in the assignments of error in this court and by the arguments in their support that the Superior Court erred in the admission of certain evidence offered by the defendant, and erred also in giving certain instructions tendered by the defendant and in refusing one of those offered by the plaintiff. It is also maintained by the plaintiff that the verdict is against the manifest weight of the evidence.

The pleadings on which the cause was submitted to the jury consisted of a declaration in three counts and a plea of not guilty. The gist of the declaration was that the defendant railway company, being possessed of and using certain railroad tracks across a public highway in Monon, Indiana, through its employees negligently and carelessly created an obstruction on said highway and permitted it to remain there a long time, omitting to guard or protect it, and that thereby the plaintiff, a minor of eighteen years, who was riding in a wagon on the said highway and assisting in pulling a fire engine behind said wagon by means of a rope, was injured in this way: The fire engine struck said obstruction and by it was brought to a sudden stop. By this the rope was violently jerked and it caught one of the legs of the plaintiff, pulled it against the end gate of the wagon and crushed it so that it was necessary to amputate it above the ankle.

Material facts shown in the evidence concerning which there was no dispute, were these:

Monon, Indiana, is a village of about 800 people. Defendant’s railroad passed through the town from northwest to southeast and crossed Arch street, a north and south street, at grade at about the junction of Arch and Third streets. Third street was one block south of and parallel to Fourth street, which ran east and west. The defendant railway had a right of way through the town extending at least thirty-seven feet northeast of its four tracks. From the right of way line north Arch street was surfaced with gravel and crushed stone. From the northern limits of the right of way to the tracks the road was surfaced with cin- • ders. South of the right of way it was an ordinary dirt road running two blocks and ending at a river. There were dwelling houses but no places of business on Arch street south of Fourth and not more than forty crossings of the tracks daily, taking both directions together, were made by teams. The street is platted as sixty feet in width. From curb to curb on the north side of the tracks it was 37 feet in width. In the center of this at the tracks was a planked roadway, crossing the tracks, sixteen feet wide. Ten feet or so west from this was planking crossing the tracks and connecting with a sidewalk to the north.

March 4, 1908, the plaintiff, a lad of eighteen years, while at work in the loft of a barn on the south side of Fourth street, heard the fire gong ring. He ran across the street to the town hall, and finding others there, helped to take out a two-wheel chemical fire engine weighing about fifteen hundred pounds and attach it to a wagon that happened to be near, drawn by two horses and belonging to a farmer named Ball. The bed of the wagon was built up by top boards or sidings around it, and at the rear between the top end gate or boarding and the lower one, was an aperture of four inches. Through this opening a rope attached to the fire engine was taken into the wagon and four young men, including the plaintiff, boarded the wagon and seized the rope. It was a loop of rope that thus passed through the opening into the wagon, the two sides of the loop running respectively from ends of a spool or windlass underneath the tongue of the fire engine and passing respectively through two eyes at the end of a tongue six feet long. The rope was continuous except at this spool to which its ends were fastened. As much of the rope as was needed to draw the engine could be pulled out, and then by a ratchet the windlass could be made fast. A loop of twelve or fifteen feet from the end of the tongue, eighteen-to twenty-one feet in all, was pulled out from the spool at this time. A portion of the end of the loop lay in the wagon toward the front end, while the portion nearer to the rear boxing of the wagon was held by the four men. The plaintiff Brown was nearest to the front of the wagon and therefore to the end of the loop which lay in the wagon, as he stood facing the rear of the wagon and the engine. He says he closed his hands around both sides of the loop but that he does not know whether his feet or either of them was within the loop as it lay in the wagon. The testimony of another witness shows that the young men standing in front of him nearer the rear end of the wagon each held but one side of the loop.

The wagon with the fire engine drawn after it, the end of the tongue of the engine being not much more than a foot or a foot and a half behind the tail-board of the wagon, was driven west on Fourth street to Arch street on a trot and turned south on Arch street. As it approached the track the driver pulled up his horses to a fast walk, and as he testifies, pulled to the right a little to keep from running into a wagon in front of him. The engine stuck at something, the rope was jerked out of the hands of all the persons holding it, and the end of the loop lying back of the plaintiff in the wagon, as it ran through the wagon box caught the plaintiff’s left leg just above the shoe top, dragged him to the end of the wagon and practically tore his foot off.

The questions concerning which there is any variance in the evidence are, first, what caused the engine • to stick and thus jerk the rope from the hands of those who held it; second, if, as the great weight of the evidence shows, it was a mass of matter lying within the limits of the highway and the result of the defendant’s action there, of what was this mass of matter composed; and, third, where did it lie with reference to the limits of the highway and of the defendant’s right of way.

As to the first question the weight of the evidence is clear. There seems to have been seven eye witnesses of the accident examined—four men who were in the wagon and three men who were on the sidewalk. The driver of the wagon, Ball, who of course was facing south, testified that he did not recollect whether there was a pile of snow or dirt at the point of the accident or not; and Schultz, who was on the sidewalk two hundred feet to the north, swore that although he did remember that there was such a pile there, and saw the fire engine hit something and stop, he didn’t think it struck or touched the snow pile, which was “quite a piece away.” William F. Kesler says he saw the accident, but was not asked whether the engine struck a pile of snow which he said existed at the tracks or not.

The four other men who saw the accident, J. J. Kestler, Graves, Cherry and the plaintiff himself, testified that the west wheel of the engine struck the pile or obstruction, composed at least partially of snow, which was northeast of the tracks and west of the center of Arch street, and that it was this which brought it to a sudden stop and dragged the rope from the still moving wagon.

In determining whether this judgment can be sustained we must assume that the jury found this to be the fact,' for if it inhered in their verdict that they found to the contrary, we should be obliged to hold it contrary to the clear weight of the evidence. Nor is this made doubtful by the testimony of two employees of the defendant company apparently asserting that there was no pile of snow where this accident occurred. Even considering their testimony taken as an entirety definitely to assert this, it is inconsistent not only with the evidence before mentioned, but also with the testimony of other witnesses for the defendant. We shall assume, therefore, that the decision by the jury was on the hypothesis that the accident was caused by the striking of the wheel of the fire engine on a pile of matter west of the center of Arch street, which pile was, as the witnesses who describe it variantly say, from 3 to 8 feet long from east to west, about 3 feet wide from north to south and not far from 18 inches high.

As to the second question involving the composition of the pile, while the witnesses speak of it variously in different places as track rubbish, dirt, etc., it is, we think, quite clear from an analysis of the testimony regarding it, taken as a whole, that the pile was composed of frozen snow and ice with the mingling of some cinders from the mass with which the street just north of the tracks had been surfaced, and which had been brought onto the tracks by the street traffic and probably with other slight admixture of dirt, had been thrown out with the snow when the tracks and crossings were cleared after a heavy snowfall a fortnight or so before. A pile mostly of snow and ice had thus been formed, doubtless infiltrated with dirt of different sorts, as any snow pile formed in such a way is apt to be in a village or city street. This at .least we think from the evidence the jury were justified in believing, and if it be necessary in order to sustain their verdict to assume that they considered this pile to be essentially a pile of ice and snow, with only the usual concomitants of such a pile, we must assume they did so consider it.

About the third question before noted, that as to the exact position of this pile against which the engine struck, the evidence varies more.

The witnesses practically agree that it was from five to ten feet north of the tracks, but they differ as to how near the center of the street it was. Some of them testify that its eastern end was east of a line drawn north from the western end of the sixteen-foot wide planking in the middle of the street; others—and we think the weight of the evidence is that way—that its eastern end terminated at or just west of this sixteen-foot .line, and that a similar pile of snow on the eastern side of the street was to the east of a line drawn north from the eastern end of the planking, thus leaving sixteen feet in the clear at least between the two piles of snow for travel. The testimony is certainly such that we must regard the jury at liberty to have so found, and must consider that they did so find if that finding is necessary to sustain their verdict on the evidence.

The plaintiff contends, however, that this is immaterial ; that it must be conceded that the" pile of snow which the engine struck was within the limits of the highway; that it was placed there by the defendant and left unguarded, and that this is in itself proof of negligence, irrespective of whether the width of space left for travel was sixteen or a less number of feet; and that consequently the verdict is manifestly against the weight of the evidence, if based on a finding that the defendant company’s negligence was not the proximate cause of the injury. If it was based on the belief of the jury that the plaintiff was guilty of contributory negligence—a question which was properly left to them— the plaintiff contends that the jury were misled by the erroneous admission of evidence and by erroneous instructions.

Against these contentions the defendant maintains that the facts show no negligence on its part. It introduced evidence that snow which fell on the sidewalks of Arch street and other streets of the town of Monon was customarily thrown into the street, and that no snow was ever removed or carted away from the streets and contends that the defendant was bound only under the law to keep its crossing and the approaches thereto reasonably safe for public use. As we think that the evidence strongly tended to prove and justified the jury in finding that the crossing and approaches in this case furnished a reasonably safe passage for public use, notwithstanding the snow piles on either side of the way, it follows that if we hold with the defendant on this proposition of law, we must hold the verdict of the jury can be justified on the ground that the defendant was guiltless of any negligence.

That the proposition in question would be true as a general proposition of the common law, in the absence of statute, and that it is the law of Illinois under the judicial decisions which construe the statute of this state in regard to’ railroad crossings, we have no doubt. City of Bloomington v. Illinois Cent. R. Co., 154 Ill. 539; Cleveland, C., C. & St. L. R. Co. v. Johns, 106 Ill. App. 427.

It is consonant with right reason too that a railroad company should not be held to the duty of removing all snow from its right of way across a street, for the whole platted width of the highway in a small country town where all persons else only so dispose of the snow as to le.ave free and reasonable passage for persons and vehicles, and where entire removal of snow from the streets is unheard of. When, in such case, the railroad company, like the rest of the community, has kept its crossing and approaches so clear that they furnish a suitable passage proportioned to and adequate for the travel on the street and consistent with the condition of the adjacent roadway, it would seem that it cannot, in the absence of peculiar or especial provisions of law affécting it, be held guilty of negligence. It was in accordance with this view ,of the law that instructions 13, 15 and 16, complained of by plaintiff, were given. Instruction 13 is in part:

“If you find from the evidence in this case that the defendant used reasonable care, that is the degree of care which an ordinarily prudent man would have used under like circumstances and conditions, in making the pile in question, if you find from the evidence that the pile in question caused the injury, then you are instructed that the plaintiff cannot recover in this case.”

Instruction 15 is:

“You are instructed that the law does not require a railroad company to keep and maintain approaches to its crossings in an absolutely safe condition for travel, outside of the limits of usual and ordinary travel. If you believe from the evidence in this case that the defendant exercised reasonable care with reference to the manner in which it kept and maintained the crossing in question, and approaches to the crossing, then you are instructed that the plaintiff cannot recover.”

Instruction 16 is:

“In determining whether the conduct of the defendant in this case at and before the time of the accident was negligent, you are instructed that it is your duty to take into consideration all the facts and circumstances shown by the evidence bearing upon the conduct of the defendant. If you find that the defendant acted with reference to the clearing of its crossing and the pile of snow and other material, in the same manner that a reasonably prudent man engaged in conducting the same business under like circumstances and conditions would have acted, then the defendant was not guilty of negligence and the plaintiff cannot recover against the defendant.”

It is probably true that in certain particulars these instructions might have been more precisely drawn; but they appear to us not to be reversibly erroneous or misleading on the assumption that the position in regard to the defendant’s liability, before indicated as the general law and the law of Illinois, was the correct one for the court in this case to take.

The plaintiff, however, emphatically insists that this position, whether or not it represents ■ the law of Illinois, is not tenable in this case, which is governed by the law of Indiana. The law of Indiana, the plaintiff says, is clearly at variance with the theory which runs through these three instructions, and is, on the contrary, expressed by the following instruction, numbered 18, tendered by him and refused by the court:

“It is unlawful to place and keep or leave continuously in a public highway anything which either impedes or endangers public travel. This rule applies to the whole width of the highway and not merely to a worn portion of it commonly used for passage. And if you find from the evidence in this case that the defendant deposited upon a part of the driveway of a public street of Monon a pile of snow and dirt and knowingly permitted it to remain there, and if you find that that pile endangered travelers upon the street there, then you may find that the defendant in placing and permitting that pile to remain there was negligent.”

Counsel for plaintiff referred in argument to a statute of Indiana, which it claimed imposes an obligation on a railroad crossing a highway different from and more stringent than that which the law of Illinois enforces in similar cases. No statute of Indiana was pleaded or proved in this cause by the plaintiff, and those statutes which are alluded to in the opinion of the Supreme Court of Indiana cited in plaintiff’s brief as establishing the existence of such a legislative act (Vandalia E. Co. v. State, 166 Ind. 219) hardly bear out the statement. The general railroad act of the state, the court says, grants railroad companies power to construct their roads upon or across any highway, so as not to interfere with the free use of the same, which the route of its road shall intersect, in such manner as to afford security for life and property; but the corporation shall restore the highway thus intersected to its former state or in a sufficient manner not to unnecessarily impair its usefulness.

We see no such different or additional duty imposed by this statute.

The only other statute affecting the matter which the opinion refers to, declares it to “be the duty of each railroad company whose road or tracks cross or shall hereafter cross any street, avenue or alley in any incorporated town or city in the State of Indiana, which said street, avenue or alley has been or shall hereafter be by addition, plat or otherwise dedicated to the public use, to properly grade and plank or gravel its said road and tracks at its intersection with and crossing of said street, avenue or alley in accordance with the grade of said street or avenue, in such manner as to afford security for life and property at said intersection and crossing.”

This statute no more than the other changes the law on the matter involved in this controversy from that which the Supreme Court of Illinois has laid down in the cases we have cited.

The plaintiff, however, introduced in evidence, to show the law of Indiana, two opinions of Indiana courts—one of the court of last resort—Ohio & M. R. Co. v. Trowbridge, 126 Ind. 391; and one of an intermediate court—Indiana Natural & Illuminating Gras Co. v. McMath, 26 Ind. App. 154.

In the Supreme Court case a judgment recovered against a railroad company was affirmed in favor of an injured woman whose horse was frightened by a handcar removed by employees of the road from the track and placed by them about ten feet from the center of a highway along which they saw her approaching. It would seem to us that nothing additional or different from the law as it is declared and understood in Illinois was necessary to justify the verdict of the jury and the judgment in that case Nor do we find in the language of the learned judge who delivered the opinion of the court anything which would so imply. He says that the right of using a highway for the storage of cars, or even as a place of temporary deposit of cars, is not possessed by any railroad company, and that while possibly an emergency might arise excusing or justifying the temporary use of a highway for such a purpose, such temporary use even is prima facie unlawful, and that the railroad company had offered no satisfactory explanation or reasonable excuse for it.

Although, as he says, it is not every wrongful obstruction of a public way that invests a plaintiff with a cause of action, even though he may suffer a special grief from the wrong, yet in the case at bar it might be inferred with entire propriety that the position occupied by the car was so unusual as to cause the appellee’s horse to take fright, and that there was no reason for obstructing the public road. He adds:

“We deem it proper to add that we seriously doubt whether a railroad company can escape liability where, without any necessity requiring it, a' highway is obstructed by the act of its employees in placing a car or cars within the highway limits. We are indeed strongly inclined to the opinion that while a railroad company may not be liable for injuries caused by horses taking fright at locomotives and cars used and kept upon its tracks, yet it may be liable when it places them in a public road; but this question we need not here decide. A railroad company has certainly no right to increase the danger of travellers by placing cars on a public highway.”

We see nothing in all this militating agáinst the propositions of law to which the courts of Illinois, as we think, are committed, or which bears out the contention of the plaintiff that instructions 13, 15 and 16 should have been refused and instruction 18 given.

It is, however, on the opinion of the Appellate Court of Indiana introduced in evidence that the plaintiff insists most strongly in argument as showing that the law of Indiana establishes the doctrine for which he is contending. In that case (Indiana Natural & Illuminating Gas Co. v. McMath, 26 Ind. App. 154) a judgment. for an injured plaintiff was affirmed, rendered on the following state of facts:

The Gas Company had transmitted its gas to certain customers in Tipton County, Indiana, through pipes one-half inch in diameter which it had laid on the top of the ground upon a public highway “in such a manner as to obstruct the highway,” the complaint alleged, and had allowed weeds and grass to grow over and obscure from sight.

One day the appellee was traveling along this highway with a traction engine and attached clover huller, and it became necessary for him to turn from the highway into a clover field. Not seeing the pipe because, as the complaint says, “it was covered up and hidden by weeds and grass which were negligently permitted to grow over it, ’ ’ he ran his engine over it. The pipe was broken, the gas escaped, the fire in the fire box of the engine ignited it and caused an explosion, the appellee was injured and secured a verdict and judgment for $500.

The court said in the first place, that the complaint stated a cause of action with sufficient definiteness, and then cited Lebanon Light, Heat & Power Co. v. Leap, 139 Ind. 443, to the effect that to lay natural gas pipe uncovered on the surface of a highway was unlawful. He quotes from said Leap case the words: “The public roads free from any obstruction to travel are solely and from fence to fence for the use of the traveling-public.” These words were used by the Supreme Court of Indiana in the Leap case concerning the following state of facts: The defendant, which was running a natural gas plant, had laid on intersecting* highways, apparently along their sides or edges, almost two miles of poorly jointed gas pipes in the form of a T, and after taking up some of the stem of the T, imperfectly plugged the orifice and conducted gas through the pipes at a pressure of more than three hundred pounds to the square inch. The gas was constantly escaping at the plug and was frequently on fire. Leap, a youth of eighteen, was injured by an explosion which took place while he was standing on the highway and looking at the fire. A judgment which he obtained was reversed on account of error in the instructions on contributory negligence, but the court said in the course of its opinion :

“This complaint charges in substance that the appellants were guilty of negligence in laying.a natural gas pipe as described upon the public highway and in transporting through said pipe as so constructed natural gas at the dangerous pressure of three hundred pounds to the square inch. We think the charge is fully sustained by the evidence. That the pipe was carelessly put together is evident from the numerous leaks in addition to the one at the crossing which are testified to. It was additional negligence to lay such a poorly jointed pipe containing such a dangerous explosive loose upon the ground, where the public, including children and other inexperienced persons, were passing day after day. Besides all this, it was a violation of the law to lay pipe upon the public highway. Whatever may be said as to the right to lay gas pipe or other pipe in covered trenches along the highway after due permission obtained from proper authority, and so laid as not in any manner to obstruct the highway or endanger public travel, there can be no question that it is unlawful to occupy the surface of the highway as done in this case. The public roads free from any obstructions to travel are solely and from fence to fence for the use of the traveling public.”

The court then cites the Trowbridge case, 126 Ind. 391, which we have before noted.

To return to the McMath ease, supra, in the Appellate Court—after citing and quoting as stated, tlie Leap case, supra, in the Supreme Court, the learned judge of the Appellate Court proceeds:

“It is a nuisance'and unlawful to place and keep or leave continuously in a public highway anything which either impedes or endangers public travel.
This tule applies to the whole ividth of the hightvay and not merely to a worn portion of it commonly used for passage. Privileges which if usurped by a great number of persons or corporations would change the road from a public easement to a mere special benefit or convenience to such usurpers are not lawful for any of them. The uses must be consistent with the continued use of the road and every part thereof as a passageway by all persons exercising ordinary care.”

We have dwelt at length on the facts in the Indiana cases above recited and quoted freely from the opinions in them, because it is upon them that the plaintiff relies to show that the law of Indiana at least made it unlawful for the railroad company to leave the pile of snow and ice involved in this case within the limits of the highway, irrespective of the particular facts and circumstances and of the way a reasonably prudent man would have acted in clearing snow away along the same street. The words which we have italicized in the opinion of the Appellate Court of Indiana in the McMath case were transferred by the plaintiff to the proffered instruction 18, of the rejection of which he complains.

But it has often been said by the courts of Illinois that the comments and remarks of the court in actions of negligence, and indeed the argument of the judge delivering an opinion in any case, are to be considered and applied with reference to the facts of the case in which they are made, and the language of the Supreme Court in one case is not necessarily proper language for an instruction to the jury in another. Village of Fairbury v. Rogers, 98 Ill. 554; Wolcott v. Reeme, 44 Ill. App. 196; Chicago, P. & St. L. R. Co. v. Condon, 108 Ill. App. 639; Chicago & N. W. R. Co. v. Trayes, 33 Ill. App. 307.

The comparison of the Indiana cases with the one at bar shows a marked illustration of the truth of this proposition. These cases are so different in their facts from the one at bar that what was said in them has properly little or no relation to the questions here involved.

The Indiana courts were speaking in one case of the placing within a few feet of the center of the highway in “an unusual position” an object likely to frighten the horse an approaching traveler was riding, and it was proper and natural to say that the fact that this object was not planted in the center of the street so as actually to obstruct passage was no defense.

In the other two cases the Supreme and Appellate Courts were dealing with unwarranted and unjustifiable trespasses on the rights of the public, by private corporations without authority placing for their own convenience and benefit pipes carrying a highly dangerous and explosive gas along the sides or edges of the highway but within its boundaries. It was here-again most natural to say, in some form of words, that it was no defense, as was probably urged, that the pipes were not placed in the center or worn portion of the road.

But to the action of either a railroad company or a private citizen in removing the natural obstruction in a traveled roadway, caused by a fall of snow, to a position still within the boundaries of the highway, but outside of sufficiently wide passages for vehicles and pedestrians, the words of the Indiana Courts- are entirely inapplicable and at the very best but mere dicta. They might, we think, well be properly and naturally used by the Supreme Court of this state in any case similar to those in which they were used by the courts in Indiana, and not be considered at all inconsistent with the rule laid down in City of Bloomington v. Illinois Cent. R. Co., supra. To urge them, therefore, as proving a different state of the law in Indiana, applicable to the facts in this case, from that prevailing in Illinois, is to give to the phraseology of a court’s opinion an effect as evidence of the law of another state, for which we know no authority.

We think on the question of the negligence of the defendant there was neither reversible error in the rulings on instructions nor on evidence nor in the mling; on the motion for a new trial on the ground that the verdict was against the weight of the evidence thereon. We think the jury justified in holding that no such negligence was shown. As, however, the hypothesis is possible, although we do not deem it probable, that the jury might have considered the defendant guilty of negligence, and yet held the plaintiff nnentitled, because of his contributory negligence, to recover, we note that we have considered also the objection made to the admission of the evidence of the proceedings of the Trustees of Monon in relation to nonmembers of the fire department keeping off a fire wagon. We do not think, under the circumstances and the subsequent exclusion of the paper in which the notice appeared, that its introduction could have had any injurious effect on the jury, even if it was immaterial and erroneous, which we do not decide.

We do not hold, as defendant contends, that the contributory negligence of the plaintiff was so clearly shown that it became a matter of law for the court to declare by a peremptory instruction. The question was properly left to the jury, but we do not think that the verdict should be disturbed even if it inhered in it —as it does not—that they found adversely to the plaintiff on this issue alone.

We do not think injustice was done by the verdict and judgment in this case, nor that there was reversible error in the proceedings and the judgment is affirmed.

Affirmed.


author: Mr. Presiding Justice Smith

text:
    Gertrude A. Kuechle, Appellee, v. Warren Springer, Appellant.
    Gen. No. 17,118.
    1. Appeals and errors—res judicata. The decision of the Appellate Court on a former appeal is binding on that court and on the trial court.
    2. Damages—when verdict not inconsistent with evidence. In an action for alleged fraud and deceit in connection with the conveyance of property by plaintiff in consideration for notes, it cannot be said that a general verdict for $8,000 damages and special findings that the property in question was worth $7,500 at the time of conveyance and was worth $400 or $500 about a year later are wrong and not reconcilable with the evidence, where photographs and other evidence support the original valuation, and though the difference of $7,000 in value is unusual, yet the finding is not inconsistent with the evidence as to litigation concerning the property and circumstances attendant thereon, and if the additional damages of $1,000 allowed by the general verdict are not recoverable, the error is cured by remittitur of $1,500.
    3. Res judicata—instructions. Instructions concerning a matter decided by a former appeal are properly refused, and the question thus presented is not open for review by the appellate court.
    Appeal from the Superior Court of Cook county; the Hon. Oscar E. Heard, Judge, presiding. Heard in this court at the October term, 1910.
    Affirmed.
    Opinion filed March 4, 1913.
    Stedman & Soelke, for appellant.
    Alden, Latham & Young, for appellee; T. A. Sheehan, of counsel.
   Mr. Presiding Justice Smith

delivered the opinion of the court.

In an action on the case for, fraud and deceit in the Superior Court the plaintiff, here the. appellee, obtained a judgment against the defendant, here the appellant, for the sum- of $6,500. The case has been to this court before, and is reported in 145 Ill. App. 127, to which we refer for a more detailed statement. It results from an exchange by the plaintiff of certain property in Wisconsin for four notes for $1,000 each. The said notes were four of the series of notes involved in the litigation in Leonard v. Springer, 98 Ill. App. 530, reversed in 197 Ill. 532; Springer v. Siltz, .133 Ill. App. 552, affirmed in 236 Ill. 276, and Springer v. Schwitters, 137 Ill. App. 103, affirmed in 236 Ill. 271.

The defendant urges four reasons for the reversal of the judgment. First, that the plaintiff could not recover herein for the reason that she had rescinded her contract and in another action recovered back the Wisconsin property which had been exchanged by her for the said notes; secondly, that the expenses of the litigation incurred by the plaintiff in the prosecution of the said suit to recover back the said Wisconsin property was not a proper element of damages in the case at bar, and especially the attorney’s fees in said suit; thirdly, the verdict of the jury was the result of mistake, prejudice or partiality; lastly, error in refusing to give the jury certain instructions requested by the defendant.

We think that the first two contentions were passed upon adversely to the defendant by this court in the opinion reported in 145 Ill. App. 127, supra. It is well settled and is conceded by the defendant, that the decision of this court on the former appeal is the law of the case and is binding on this court as well as on the trial court.

In support of the third contention it is urged that under the evidence the verdict and special findings demonstrate the mistake or prejudice of the jury, and therefore a new trial should be awarded. The verdict and special findings are as follows:

“We, the jury, find the defendant guilty and assess the plaintiff’s damages at the sum of $8,000.
“Special finding No. 1:
“We, the jury, find that the usual fair, cash market value of the property in Merrill, Wisconsin, at the time it was traded for the notes in question, to-wit, on, to-wit, the 6th day of October, 1897, was seven thousand five hundred dollars.
“Special finding No. 2:
“We, the jury, find the fair, reasonable cash market value of the property in Merrill, Wis., on the 24th day of September, 1898, was five hundred dollars.”

The plaintiff remitted fifteen hundred dollars. The plaintiff’s husband, her agent in the transaction, testified that on September 15,1897, the “fair market cash value” of the property was “$20,000 or $25,000;” and also:

“Q. What, in your opinion, was the fair market value of that proeprty on the 24th day of September, 1898, that is the date the decree was set aside, taking into consideration the litigation that was pending upon the property instituted by the holders of the mortgages and also the intervening petitioner, Fannie Jacobson; what was the property worth?” * * *
“A. $4,000 or $5,000.”

He also testified that in August, 1897, he.had been offered for said property by a Mr. Devine $10,000.00 in cash and some property in Kilbourn City, Wisconsin, the value of which, if it had any, is not shown.

It is urged that under the evidence the verdict and the special findings were clearly wrong, and the amount of the judgment cannot be reconciled on any theory sustained by the evidence. In this contention we cannot agree.

On October 6, 1897, the plaintiff conveyed the said premises to John E. Maginess at the request of the defendant. The premises consisted of thirty-six acres and a twenty-room house. The basement of the house was of Vermont granite; the first story of St. Louis pressed brick and the second and third stories of ornamental shingles dipped in oil. The interior was finished in hardwoods and contained several bath rooms. On a study of the photographs of the same in the record and all the evidence, we think that the value of a house so situated might be the subject of considerable difference of opinion; and we are not prepared to hold that the jury might not properly consider the value of the premises on October 6,1897, the date of the conveyance thereof by the plaintiff, to Tie eleven thousand dollars, and deducting therefrom the amount of the mortgage, thirty-five hundred dollars, arrive at the sum of seventy-five hundred dollars as the net value of said premises, the first of the said special findings. The testimony was that it was worth on September 24, 1898, four or five thousand dollars. ' Deducting from the first of said sums the amount of the said mortgage would leave the net value of the premises five hundred dollars, the second of said special findings.

On September 24, 1898, the mortgage on the said premises was being foreclosed, and in consideration of all the litigation and circumstances attendant thereon, it may be that the value to be fixed by the jury was not easily determined. At any rate, the said findings were not inconsistent with the evidence if the above views suggested as to the same are correct. This made a difference of seven thousand dollars in the value of the property between the time it was conveyed by the plaintiff and her recovery thereof. We confess that to us the difference seems very great under all the circumstances. However, we are not disposed to substitute any theory that might be entertained by us in place of the express findings of the jury, which are supported by, and are not inconsistent with, the evidence, considering the same all together. To this difference in value of the said premises the jury added one thousand dollars, as shown by the general verdict. This may be accounted for in the costs and expenses and interest thereon in the litigation to recover the said premises; or punitive damages that seem to be conceded might be allowed, if any damages were recov- ' erable. If not, it was cured by the remittitur of fifteen hundred dollars.

The defendant requested the court to give to the - jury certain instructions to the effect that if the jury found that the said premises conveyed by the plaintiff in consideration of the said four notes had been restored to her, then the' jury should find the defendant not guilty. The court refused to give the said instructions. The trial court, under the former ruling of this court in this case, was bound by the law there announced, and properly refused the said instructions; and the question thus presented, as heretofore indicated, is not open for review by this court.

' The death of the defendant February 8, 1912, has been suggested, and an order entered of record that such judgment as may be entered herein shall be entered nunc pro tunc as of a date preceding the said death. The judgment is affirmed and will be entered nunc pro tunc as of February 7, 1912.

'Affirmed.