{ "id": 2584412, "name": "Rosa Cohen, Adm'x, v. Chicago and North-Western Ry. Co.", "name_abbreviation": "Cohen v. Chicago & North-Western Ry. Co.", "decision_date": "1902-12-11", "docket_number": "", "first_page": "314", "last_page": "323", "citations": [ { "type": "official", "cite": "104 Ill. App. 314" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "106 Ill. 563", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2782078 ], "opinion_index": 0, "case_paths": [ "/ill/106/0563-01" ] }, { "cite": "140 Ill. 486", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5806944 ], "pin_cites": [ { "page": "496" } ], "opinion_index": 0, "case_paths": [ "/ill/140/0486-01" ] }, { "cite": "193 Ill. 454", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5578221 ], "opinion_index": 0, "case_paths": [ "/ill/193/0454-01" ] }, { "cite": "130 Ill. 116", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 12122071 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill/130/0116-01" ] }, { "cite": "92 Ill. App. 50", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5286837 ], "opinion_index": 0, "case_paths": [ "/ill-app/92/0050-01" ] }, { "cite": "182 Ill. 359", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3213040 ], "opinion_index": 0, "case_paths": [ "/ill/182/0359-01" ] }, { "cite": "41 Fed. Rep. 744", "category": "reporters:federal", "reporter": "F.", "case_ids": [ 3732045 ], "opinion_index": 0, "case_paths": [ "/f/41/0744-01" ] }, { "cite": "165 Ill. 41", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3104883 ], "opinion_index": 0, "case_paths": [ "/ill/165/0041-01" ] } ], "analysis": { "cardinality": 694, "char_count": 18873, "ocr_confidence": 0.561, "pagerank": { "raw": 4.9889270942866365e-08, "percentile": 0.31306149509102654 }, "sha256": "567a5c68d52a6497a400ecbc1b93b01a4c3347375319b30e153e2cdb4ff92f75", "simhash": "1:bc5bedf2e5ee62dd", "word_count": 3297 }, "last_updated": "2023-07-14T16:34:57.519371+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Rosa Cohen, Adm\u2019x, v. Chicago and North-Western Ry. Co." ], "opinions": [ { "text": "Mr. Justice Adams\ndelivered the opinion of the court.\nThe overruling plaintiff\u2019s demurrer to the plea of the. statute of limitations is assigned as error, and this raises the question whether the cause of action stated in the additional count is a different cause of action from any stated in the two counts to which the defendant pleaded the general issue. Counsel for plaintiff contends that the additional count is merely a re-statement of the cause of action set out in the amended first count; that it is simply a more specific statement of defendant\u2019s negligence in failing to give a signal of the approach of the locomotive; that under the allegation that the defendant was negligent \u201c in not, through a flagman, or otherwise, then and there signaling persons traveling in the direction of said crossing, and in not giving a signal of the approach of said locomotive,\u201d plaintiff had a right to prove the maintenance, etc., of gates, etc., as averred in the additional count. We regard this proposition as untenable. The negligence charged in the amended first count consists of omissions; mere negations; while that charged in the amended count is a positive act, namely, the raising the gates, thereby, as the count alleges, giving Cohen to understand that the crossing was clear, and that he might proceed with safety. Proof that the gates were raised would not have the least tendency to prove omission to give signals of the approach of the train. Proof of negligent or wrongful action does. not sustain an averment of negligent non-action. The cases cited by appellee\u2019s counsel do not, nor does any case, as we think, sustain his contention. In Swift & Co. v. Madden, 165 Ill. 41, cited by plaintiff\u2019s counsel, the court say :\n\u201c In a case like the one under consideration the cause of action may be regarded as the act or thing done or omitted to be done by one which confers the right upon another to sue\u2014in other words, the act or wrong of the defendant toward the plaintiff which causes a grievance for which the law gives a remedy. (Buntin v. Chicago, Rock Island and Pacific Railway Co., 41 Fed. Rep. 744.) Was the act or wrong of the defendant toward the plaintiff, as set out in the additional counts, entirely new, or was it a mere re-statement of the act or wrong in a different form ? \u201d\nIn Chicago City Ry. Co. v. Leach, 182 Ill. 359, the court quote the above language with approval. In that case the negligence charged in the original declaration was the \u201c driving and operating a train of cars at such a high and dangerous rate of speed that the train could not be stopped in time' to avoid the injury.\u201d In an additional count, to which the statute of limitations was pleaded, the negligence charged was the not using reasonable care to employ competent servants, and the employment of an incompetent, reckless and careless servant to run the defendant\u2019s trains, which the defendant knew, or should have known. The court say:\n\u201c The act or wrong relied upon in this count is entirely different from the act or wrong relied upon in the first count of the declaration. The evidence to sustain one count would not sustain the other, and the evidence in defense, as to one count, could not be relied upon as a defense under the other.\u201d\n\u25a0 This language is applicable in the present case. A new and independent cause of action, is stated in the additional count, and the demurrer to the plea of the statute was properly overruled.\nIt was assigned as grounds for a new trial, and is also assigned as error, that the court excluded proper evidence offered by the plaintiff, and improperly instructed the jury to find for the defendant. Frank Kloskowski testified that he remembered the time when Cohen was killed; that it was about six o\u2019clock in the evening; that witness was driving a wagon and Cohen was walking south on the west side of Elston avenue, and that, when they came to the railroad gates the gates were down. Defendant\u2019s attorney objected to the evidence as to the gates being down, on the ground that there was no reliance in any count of the declaration on the existence or non-existence of gates, and the court sustained the objection, and struck out the evidence. Subsequently the following occurred in the examination of the witness:\nQ. 11 Gro ahead, Frank, and tell, as well as you can, what happened there; what you saw.\u201d A. \u201c I stopped in front of the crossing, and Mr. Cohen came along, and he stopped there too. He waited there, and the gates were down, and after the\u201d\u2014\n\u201c Objected to by the defendant.\nThe Court: \u201c Strike out the gates.\u201d\nA. \u201c The train was coming from the city toward the northwest; there .were about two cars on the crossing, and the gates raised up.\u201d\nOn motion of defendant, the part of the answer relating to the gates was stricken out.\nJoseph Kalb testified that he approached the railroad crossing from the south, walking on the west sidewalk of Elston avenue, the same sidewalk on which the deceased approached the crossing from the north,and that he saw Cohen when he was struck by the train, and was then about between ten and fifteen feet distant from him. The witness was asked the following questions: .\nQ. \u201c When you first came to the Northwestern tracks, where they cross Elston avenue on coming from Milwaukee avenue, will you state whether or not the gates were down?\u201d\nQ. \u201c State whether the gates were up or down when you came to that crossing ? \u201d\nThese questions were ruled against on defendant\u2019s motion, when plaintiff\u2019s attorney made the following offer:\n\u201c I now offer to prove by the witness that at the time he came to the crossing at Elston avenue the railroad gates were closed, and that a train was approaching that crossing from the east, and that while the train was on the crossing, and before it was across the crossing, these gates were raised, and that the witness started forward, and after he had started forward and had passed under the gates, the gates were lowered when this train was approaching this crossing, and that what is true of one set of gates is true of the other.\u201d\nThe court refused to admit the offered evidence. Similar questions were asked another witness, who was on Elston avenue, on the north 'side of the railroad crossin o-, and close to the crossing, when the accident happened, and the questions were excluded, on motion of defendant\u2019s attorney. Plaintiff\u2019s attorney excepted to the rulings of the court. The exclusion of the evidence as to the gates, and whether they were up' or down when Cohen, deceased, started to cross defendant\u2019s tracks, was error. Railroad Co. v. Chinsky, 92 Ill. App. 50; C. & I. R. R. Co. v. Lane, 130 Ill. 116; N. Y. C. & St. L. R. R. Co. v. Luebeck, 157 Ib. 595; S. C. City Ry. Co. v. Purvis, 193 Ill. 454; St. L. Nat. Stock Yards v. Godfrey, 198 Ib. 288.\nIn Railroad Co. v. Chinsky, it is said :\n\u201cWe think it was entirely proper to allow proof that there were no gates at the crossing, for the purpose of showing the physical conditions and surroundings of the place where the accident occurred, that the jury might be the better enabled to judge of the due care of the appellee, on the one hand, and the alleged negligence of the appellant, on the other.\u201d\nIn C. & I. R. R. Co. v. Lane, supra, the court say:\n\u201c Although there was no ordinance requiring a flagman to be placed at the crossing, yet we think the fa.ct there was none there was properly allowed to be shown to the jury as one of the existing circumstances attendant upon the alleged injury. The absence of a flagman was not negligence, yet such absence, in connection with proof of the condition of things in respect to population, travel, and otherwise, in that particular locality, would shed light upon the question of the care and caution on the part of appellant in running its trains, that the safety of the public would reasonably require.\u201d\nIf the gates were down when the deceased arrived at the crossing, and were raised while he was waiting there, with the intention of crossing the defendant\u2019s tracks, this, clearly, was competent evidence on the issue of due care of the deceased. The evidence tends to prove that no bell was rung or whistle sounded on the engine which struck the deceased. A number of witnesses who were close to the crossing at the time of the accident testified that they heard neither bell nor whistle on that engine. This being so, the offered evidence that the gates were raised, was competent to be considered, in connection with the evidence of failure to ring a bell or sound a whistle, and as bearing on the question whether such failure caused the accident.\nThe offered evidence seems to have been excluded on the ground that it was evidence of an independent cause of action, not counted on in the declaration. It was held in North Chicago St. Ry. Co. v. Cotton, 140 Ill. 486, 496, and South Chicago City Ry. v. Purvis, 193 Ib. 454, that this is not a sufficient ground for the exclusion of such evidence. In the latter case the court say:\n\u201c The fact that the evidence tended to support a charge of negligence not made in the declaration, did not render it improper, so long as it had a material bearing upon the charge of negligence made in the declaration.\u201d\nDefendant\u2019s counsel, in his argument, claims that Cohen, deceased, was guilty of a want of ordinary care, which should prevent a recovery, in walking across defendant\u2019s tracks and not looking to see whether a train was approaching. We think it manifest that if the gates were down Avhen Cohen reached the crossing, and were subsequently raised, thus indicating that the tracks might safely be crossed, evidence of these facts is material as bearing on the question whether Cohen was negligent in not looking for the approaching train, if he did not so look.\nCounsel for defendant also contends that the evidence was offered for the purpose of showing whether or not a signal was given of the approach of the train; that it was inadmissible for that purpose, and therefore was properly excluded. This contention refers to the evidence of the witness Kloskowski, who was questioned, and answered as follows:\nQ. \u201cWhen you came to the railroad crossing at Elston avenue, state what took place then, if anything.\u201d\nA. \u201cI come to the gates; the gates were down first\u201d\u2014\nAt this point defendant\u2019s attorney objected to the evidence as to the gates, on the specific ground that there is no count in the declaration relying on the existence or nonexistence of gates. This objection should have been overruled, as we have shown. The court evidently doubted whether the objection was sound, saying, among other things:\n\u201cThe warning don\u2019t mean the gates. At the same time, I think the man can state what he saw. I think, as far as the objection is concerned, when a man is asked what occurred, I think it is for him to say what he saw. I don\u2019t know of any way that you can instruct the witness to take the declaration in his hand, and state what is competent and what is incompetent. You ask him to state what occurred; that is, what he saw and heard; and on that I think it is proper for him to state what he saw and heard,\u201d etc.\nWe fully coincide with the view thus expressed by the court; but defendant\u2019s attorney persisting in his objection, the court subsequently ruled against the evidence. While the objection was'being argued, plaintiff\u2019s attorney said: \u201cI contend I have a right to show what they did with the gates, for the purpose of showing whether or not any signal was given of the approach of the train;\u201d and this is relied on as an offer of the evidence for a specific purpose. But the evidence being in, the question was as to whether the objection of defendant\u2019s attorney, which was, in substance, a motion to strike out the evidence, should be sustained, which it should not have been, if the evidence was admissible for any purpose. It has been shown that, subsequently, similar evidence was offered generally, and was excluded.\n\u201c A motion to exclude the evidence and to instruct the jury to find for the defendant, is in the nature of a demurrer to the evidence, and admits not only all the evidence proves, but all it tends to prove; and in passing on such motion the judge is strictly limited to determining whether there is or is not evidence legally tending to prove the fact affirmed, i.