{ "id": 3168285, "name": "Louis Provenzano, Appellee, v. Illinois Central Railroad Company, Appellant", "name_abbreviation": "Provenzano v. Illinois Central Railroad", "decision_date": "1933-11-21", "docket_number": "Gen. No. 36,700", "first_page": "475", "last_page": "486", "citations": [ { "type": "official", "cite": "272 Ill. App. 475" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "266 Ill. App. 601", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5628877, 5629960, 5628275, 5629237 ], "opinion_index": 0, "case_paths": [ "/ill-app/266/0601-04", "/ill-app/266/0601-03", "/ill-app/266/0601-02", "/ill-app/266/0601-01" ] }, { "cite": "265 Ill. App. 358", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 3332141 ], "pin_cites": [ { "page": "365" } ], "opinion_index": 0, "case_paths": [ "/ill-app/265/0358-01" ] }, { "cite": "261 Ill. App. 556", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5538628 ], "opinion_index": 0, "case_paths": [ "/ill-app/261/0556-01" ] }, { "cite": "261 Ill. App. 470", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5540987 ], "opinion_index": 0, "case_paths": [ "/ill-app/261/0470-01" ] }, { "cite": "253 Ill. App. 589", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5544774 ], "opinion_index": 0, "case_paths": [ "/ill-app/253/0589-01" ] }, { "cite": "242 Ill. App. 166", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5536925 ], "pin_cites": [ { "page": "180" } ], "opinion_index": 0, "case_paths": [ "/ill-app/242/0166-01" ] }, { "cite": "319 Ill. 326", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5155244 ], "opinion_index": 0, "case_paths": [ "/ill/319/0326-01" ] }, { "cite": "306 Ill. 392", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5782855 ], "opinion_index": 0, "case_paths": [ "/ill/306/0392-01" ] }, { "cite": "215 Ill. 390", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5618467 ], "opinion_index": 0, "case_paths": [ "/ill/215/0390-01" ] }, { "cite": "291 Ill. 472", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2420887 ], "weight": 2, "pin_cites": [ { "page": "478" }, { "page": "476" } ], "opinion_index": 0, "case_paths": [ "/ill/291/0472-01" ] }, { "cite": "147 Wis. 70", "category": "reporters:state", "reporter": "Wis.", "case_ids": [ 8699269 ], "pin_cites": [ { "page": "75" } ], "opinion_index": 0, "case_paths": [ "/wis/147/0070-01" ] }, { "cite": "76 S. C. 278", "category": "reporters:state", "reporter": "S.C.", "case_ids": [ 4428989 ], "pin_cites": [ { "page": "281" } ], "opinion_index": 0, "case_paths": [ "/sc/76/0278-01" ] }, { "cite": "92 Ill. 288", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2741980 ], "pin_cites": [ { "page": "291" } ], "opinion_index": 0, "case_paths": [ "/ill/92/0288-01" ] }, { "cite": "31 Ill. 490", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 8501506 ], "opinion_index": 0, "case_paths": [ "/ill/31/0490-01" ] }, { "cite": "68 Ill. 226", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2630338 ], "opinion_index": 0, "case_paths": [ "/ill/68/0226-01" ] }, { "cite": "137 Ill. 352", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5440055 ], "pin_cites": [ { "page": "359" } ], "opinion_index": 0, "case_paths": [ "/ill/137/0352-01" ] }, { "cite": "218 Ill. App. 553", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 2985068 ], "opinion_index": 0, "case_paths": [ "/ill-app/218/0553-01" ] }, { "cite": "80 Ill. App. 531", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5784811 ], "pin_cites": [ { "page": "535" } ], "opinion_index": 0, "case_paths": [ "/ill-app/80/0531-01" ] }, { "cite": "200 Ill. App. 409", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5416382 ], "pin_cites": [ { "page": "415" } ], "opinion_index": 0, "case_paths": [ "/ill-app/200/0409-01" ] }, { "cite": "57 Ill. App. 331", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 856616 ], "pin_cites": [ { "page": "332" } ], "opinion_index": 0, "case_paths": [ "/ill-app/57/0331-01" ] }, { "cite": "145 Ill. 519", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5484585 ], "pin_cites": [ { "page": "526" } ], "opinion_index": 0, "case_paths": [ "/ill/145/0519-01" ] }, { "cite": "121 Ill. 255", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5387188 ], "pin_cites": [ { "page": "257" } ], "opinion_index": 0, "case_paths": [ "/ill/121/0255-01" ] }, { "cite": "263 Ill. App. 530", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 3260442 ], "opinion_index": 0, "case_paths": [ "/ill-app/263/0530-01" ] } ], "analysis": { "cardinality": 949, "char_count": 20107, "ocr_confidence": 0.527, "pagerank": { "raw": 8.44803946029707e-08, "percentile": 0.48481880603849875 }, "sha256": "65c4e9168c6c1e88a5b77d844045f1fab658cc9211fc4f3d0df98336a53e3d08", "simhash": "1:f33e6f2196b6dafc", "word_count": 3420 }, "last_updated": "2023-07-14T20:30:30.718398+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Louis Provenzano, Appellee, v. Illinois Central Railroad Company, Appellant." ], "opinions": [ { "text": "Mr. Justice Scanlan\ndelivered the opinion of the court.\nPlaintiff \u00a1sued defendant to recover damages for personal injuries and property loss sustained as the result of a collision between a truck owned and driven by plaintiff and a train of defendant, at a grade crossing in Hillside, Cook county, Illinois, on August 18, 1928. A jury returned a verdict finding defendant guilty and assessing plaintiff\u2019s damages at $4,000. Defendant has appealed from a judgment entered upon the verdict.\nIn a former trial of this case there was a directed verdict for defendant at the close of plaintiff\u2019s case. Upon appeal we held (Provenzano v. Illinois Cent. R. Co., 263 Ill. App. 530) that plaintiff\u2019s evidence made out a clear prima facie case against defendant and that the trial court erred in directing a verdict. To save repetition we refer to our former opinion for a statement of the pleadings, the locus in quo and plaintiff\u2019s theory of fact.\nDefendant contends that \u201cthe trial court erred in sustaining plaintiff\u2019s demurrer to defendant\u2019s special plea invoking provisions of the Workmen\u2019s Compensation Act in defense of plaintiff\u2019s claim for damages for personal injuries.\u201d Almost five years after the accident occurred, during the second trial of this cause and at a time when plaintiff had offered most of his proof, defendant asked leave to file this special plea. Counsel for defendant admitted to the trial court* that in the first trial they had not attempted to interpose the defense raised by -that plea, and they gave no excuse for their dilatory conduct. Plaintiff urges a number of grounds in support of the court\u2019s action in sustaining the demurrer to this plea, but it is unnecessary to refer to all. The plea assumes, in the introductory part, to answer the whole declaration, as follows: \u201cNow comes the defendant, . . . leave of court being first had and obtained, and for a further and special plea herein says that the plaintiff, Louis Provenzano, ought not to have and maintain his aforesaid action against it, the said defendant, because the defendant says,\u201d etc. The plea is clearly bad as against the claim for property damage, as the Workmen\u2019s Compensation Act provides compensation only for accidental injuries or death. In Gebbie v. Mooney, 121 Ill. 255, 257, the court said:\n\u201cChitty says: \u2018If a plea profess, in its commencement, to answer the whole cause of action, and after-wards answers only a part, the whole plea is bad,\u2019 and he says the proper course is to demur. 1 Pleadings (7th Am. ed.) 554, * 555.\u201d\n\u201cA special plea in bar, which commences as an answer to the whole declaration, and answers only one cdunt, is bad, and where it professes to answer the whole declaration, but only answers a part, it is bad. \u2019 \u2019 (Puterbaugh\u2019s Com. Law Pl. & Pr. (10th ed.) p. 114.)\n\u201cIt is to \"be observed, that a plea which only contains an answer to part of the declaration must be qualified accordingly in the commencement.\u201d (Ib.)\n\u201cIt is a familiar rule, that a plea which professes to answer the whole declaration, but only answers a part, is bad; that principle controls here. The demurrer will have to be sustained to the two pleas.\u201d (Peabody v. Kendall, 145 Ill. 519, 526.)\n(See also Titcomb v. Straight, 57 Ill. App. 331, 332; Kopf v. Yordy, 200 Ill. App. 409, 415; City of Marshall v. C., C., C. & St. L. Ry. Co., 80 Ill. App. 531, 535; Hartzell v. Cincinnati, H. & D. Ry. Co., 218 Ill. App. 553; People v. McClellan, 137 Ill. 352, 359; People v. McCormack, 68 Ill. 226; Goodrich v. Reynolds, Wilder & Co., 31 Ill. 490, and People v. Weber, 92 Ill. 288, 291.) In Puterbaugh, pp. 114-5, the author gives the various forms used where qualification is necessary. Defendant\u2019s position, as we understand it, is that plaintiff, the Central Lime& Cement Company and defendant were all operating under the Workmen\u2019s Compensation Act, and were subject to its provisions; that any claim the plaintiff may have as the result of the accident must be determined in the first instance by the industrial commission, and that the only jurisdiction the circuit court would have would be to review,, by a writ of certiorari, the action of the commission. In other words, defendant\u2019s special plea is one to the jurisdiction of the circuit court. It requires no authorities in support of the established rule that a plea that seeks to oust a circuit court of jurisdiction for matters not appearing from an inspection of the record must be certain to every intent and must contain proper averments of facts accurately and logically stated, excluding every intendment of jurisdiction; and deductions, arguments, inferences and conclusions of the pleader are not sufficient, Tested by this rule the plea is not sufficient, We may add that after carefully considering that part of the record that bears upon the instant question we are impressed with the fact that the plea was offered more for the purpose of appeal than for any benefit that might have been gained during the trial of the case, had the demurrer been overruled.\nDefendant next contends that the third count of the amended declaration is insufficient to charge a wilful and wanton injury. No demurrer was filed to this count, and neither at the close of plaintiff\u2019s case nor at the close of all the evidence did defendant offer a separate motion and a separate instruction as to it. Not only did defendant fail to challenge, in any apt way, the sufficiency of the count, but its instructions ten and eleven are based upon the theory that plaintiff had the right to recover if the jury found from the evidence that the defendant was guilty of wilful and wanton conduct in the operation of its train which proximately caused the injury in question, and having, by its conduct, permitted the case to be submitted to the jury upon that theory, it should not now be heard to contend that the third count was insufficient. Count three alleges, inter alia, that \u201cthe plaintiff was possessed of and was lawfully driving a certain automobile truck upon and along a certain public highway there, to-wit, Harrison Street, in a westerly direction, at near and over a certain crossing of the said public highway and a certain railroad of the defendant, . . . and the defendant was then and there possessed of a certain locomotive engine, with a train of cars then attached thereto, which said locomotive engine and train were then and there under the care and management of divers then servants, agents and employees of the defendant, who were then and there driving and operating the same upon and along the said railroad, near and toward and over the crossing aforesaid; and the plaintiff avers that the defendant, by its then agents, servants and employees, drove, managed, and controlled said locomotive engine at near and over said crossing in a wilful and wanton manner, and drove, managed and ran said locomotive engine on upon and over said crossing into, upon and against the said automobile truck of the plaintiff, then and there proceeding on, upon and over said crossing,- and thereby the plaintiff was then and there thrown with gr\u00e9at force and violence from and out of the said automobile truck,\u201d etc. (Italics ours.) Defendant\u2019s major contention is that this count \u2018 \u2018 does not attempt to charge the defendant with negligence in the manner in which it operated the train over the crossing; but only that it operated the train \u2018in a wilful and wanton manner.\u2019 It is not charged or attempted to be charged that the defendant was guilty of a conscious act, from which injury would likely or probably result; and it did not charge that the defendant was guilty of reckless indifference to consequences; nor that it intentionally did some wrongful act or omitted some known duty, which produced the injurious result. \u2019 \u2019 Even if it be conceded that the count would be obnoxious to a demurrer the question here is, Is it sufficient, after verdict and judgment. Century dictionary defines \u201cwilful\u201d as follows: \u201cDue to one\u2019s own will; spontaneous; voluntary ; deliberate; intentional: as, wilful murder; wilful waste.\u201d Webster defines it as follows: \u201cSelf-determined; voluntary; intentional; as willful murder.\u201d Century dictionary defines \u201cwanton\u201d as follows: \u201cCharacterized by extreme recklessness, foolhardiness, or heartlessness; malicious; recklessly, disregardful of right or of consequences: applied to both persons and their acts.\u201d Webster defines it as follows : \u2018 \u2018 Reckless; heedless; malicious; as, wanton mischief.\u201d In Hull v. Seaboard Air Line Ry., 76 S. C. 278, 281, it is said:\n\u201cEach of the words, wantonness, wilfulness and recklessness, embodies the element of malice, either express or implied, and are in law substantially the equivalent of each other, in so far as they give rise to an action based upon punitive damages.\u201d\nIn Palmer v. Smith, 147 Wis. 70, 75, it is said that the word \u201cwanton\u201d means \u201cwithout reasonable excuse, and- implies turpitude, \u2019 \u2019 and \u2018 \u2018 such a degree of rashness as evinces a total want of care, ... or willingness to destroy, although destruction itself may have been unintentional.\u201d See also Walldren Express Co. v. Krug, 291 Ill. 472, 478, as to the meaning of the words \u201cwanton\u201d and \u201cwilful.\u201d In that case the court said (p. 479):\n\u201cIn Chicago City Railway Co. v. Jordan, 215 Ill. 390, we said: \u2018Where there is a particular intention to injure, or a degree of willful or wanton recklessness which authorizes a presumption of an intention to injure generally, the act ceases to be merely negligent and becomes willful or wanton. In such a case there may be an actual intent to injure or such a conscious or intentional disregard of the rights of others as to warrant a conclusion that an injury was intended. \u2019 A charge of wantonness implies an act intentionally done in disregard of another\u2019s rights, designed and intentional mischief, and not a mere negligent omission of duty.\u201d (Italics ours.)\nIn Jeneary v. C. & I. Traction Co., 306 Ill. 392, the count charged that the defendant wilfully and wantonly ran its train against plaintiff and injured him, and the court held that the plaintiff had the right to recover under such count. (See also Brown v. Illinois Terminal Co., 319 Ill. 326.) We are not prepared to concede, as defendant contends, that the count should be held to be fatally defective after verdict and judgment, especially when it is clear that defendant conducted its defense upon the theory that the count was good. The following statement of Mr. Justice Taylor in Williams v. Kaplan, 242 Ill. App. 166, 180, seems particularly applicable here:\n\u201cThe manifest tendency of the law as shown by the decisions is towards less rigor in the technique of pleading, provided, of course, the defendant\u2019s rights are not thereby endangered or impaired.\u201d\nWe are strongly opposed to the further contention of defendant that if the verdict cannot be sustained upon the theory of wilful and wanton injury the judgment must be reversed. In support of this last contention defendant relies upon Grinestaff v. New York Cent. R. R., 253 Ill. App. 589; O\u2019Neall v. Blair, 261 Ill. App. 470, and Streeter v. Humrichouse, 261 Ill. App. 556. We are in entire accord with the specially concurring opinion of Mr. Justice O\u2019Connor in Price v. Bailey, 265 Ill. App. 358, 365, in which case the first division of this court very emphatically and justly disagreed with the holding in the said cases that a general verdict in a personal injury case should be set aside where some counts charged defendant with negligence and others with wilful and wanton conduct and there, was no evidence to sustain the wilful and wanton counts. The same division, in the later' ease of Hawkins v. McClun, 266 Ill. App. 601 (abst. opinion), in an opinion written by Mr. Justice McSurely, adhered to its position in the Price case.\nDefendant contends that the evidence is insufficient to support a charge of wilful and wanton injury.\n\u201cWhether the negligent conduct of a defendant which has resulted in injury to another amounted to wantonness is a question of fact to be determined by the jury, if there is any evidence in the record fairly tending to show such a gross want of care as indicates a willful disregard of consequences or a willingness to inflict injury.\u201d (Walldren Express Co. v. Krug, supra, 476.)\n(See also Jeneary v. C. & I. Traction Co., supra, 397.) As stated in Brown v. Illinois Terminal Co., supra, 331:\n\u201cCourts have recognized the difficulty of accurately stating under what circumstances a defendant may be held guilty of willful and wanton misconduct in causing an injury. Such conduct imports consciousness that an injury may probably result from the act done and a reckless disregard of the consequences.\u201d\nDefendant has argued the instant contention upon the assumption that \u201cthe collision occurred on a country crossing, \u2019 \u2019 whereas the accident occurred at the Harrison street crossing in the village of Hillside, Cook county, Illinois. Adjoining Hillside is the village of Bellwood. In the opinion we filed upon the former appeal there is a fairly complete statement of the locus in quo. The Harrison street crossing is the center of Hillside and near by the village hall, police department, fire department and a public school are located. A short distance east of the crossing the track is built through a cut or defile, and it crosses Harrison street at a sharp angle. Plaintiff\u2019s evidence in the second trial as to the alleged obstructions to the. view of the train as it approached the crossing is similar to that given in the first trial. From the testimony of both sides it is clear that from the time the train came out of the cut until it reached the crossing but two or three seconds elapsed. There were no gates, nor signal lights, nor a watchman at the crossing, and plaintiff\u2019s evidence was to the effect that there was no bell rung nor whistle blown on the train as it approached the crossing, and that the train, as it came out of the cut, was traveling at the rate of 50 to 60 miles per hour. Defendant introduced evidence to the effect that the bell was ringing and the whistle was blown as the train approached the crossing, but the effect of this evidence was seriously affected by the testimony of the railway mail clerk, \u201cin the service of the United States Postal Department,\u201d a witness for defendant, who testified that it was the duty of the engineer to give him the station whistle when the train was a mile east of the depot and that the engineer did give him that whistle when the train was a mile east of the depot and that he then, in the performance of his duties, opened the door of his car to look out and that the engineer \u201chad started on the second series of whistles when the accident took place.\u201d The engineer testified that he was familiar with the situation, that he knew that the road was being used by trucks for hauling material and that as he approached the intersection \u201cthere are three crossings, one right after the other. There is a school right there at Wolf Eoad crossing. There is a school, city hall and fire station, I believe, there at Wolf Eoad crossing. I was going through there at 55 miles an hour. ... The train was moving about 85 feet per second, traveling at 55 miles an hour. It did not take very long for that train to get to the crossing after it came out of the cut.\u201d He further testified that when he was about 1,000 feet away from the crossing he \u201csaw this truck coming down Harrison Street\u201d and that \u201che (plaintiff) beat me a little bit\u201d to the crossing; that he watched the truck from the time he first saw it and that when the train was within 250 feet of the crossing he became afraid that the driver of the truck did not know there was a train approaching and that he then sounded two long and two short whistles but that he could not possibly then have stopped his train, at the speed at which it was going, in less than 500 feet. As tending to support the contention of plaintiff that the engineer made no effort to stop his train, after he observed plaintiff in a position of danger, from plaintiff\u2019s evidence it appears that Wolf road is \u201cabout 1,000 or 1,100 feet west of Harrison Street crossing, \u2019 \u2019 and, that when the engineer got off the engine, after the train had stopped, it was on the other side of the Wolf road crossing. The fireman testified that the train stopped \u201cright east of Wolf road. I don\u2019t know exactly how close.\u201d While the engineer testified that he did not see other trucks passing over the crossing, testimony for plaintiff was to the effect that there were several other trucks that had just passed, or were about to pass, over the crossing at the time of the collision. The contention of plaintiff that when the entire testimony of the engineer is carefully considered, it tends to show a wilful and wanton recklessness in approaching and passing over the crossing, is not without force. Under all the facts and circumstances, we are of the opinion that we would not be warranted in holding that there was no evidence tending to prove wilful and wanton conduct.\nDefendant contends that the trial court should have directed a verdict for defendant. Upon the former appeal a like contention was made and we held that it was without merit. The evidence for plaintiff, upon the second trial, was as strong as upon the first trial, and the instant contention is without merit.\nDefendant contends that the verdict of the jury is clearly and manifestly against the preponderance of the evidence. After a careful consideration of the evidence we have reached the conclusion that this contention is without merit.\nDefendant contends that the court erred in giving, at the request of plaintiff, instructions seven and eight. This contention is based upon the assumption that count three \u201cwas a futile attempt to charge a wilful and wanton injury,\u201d and we have already passed upon that contention. Moreover, defendant\u2019s instructions ten and eleven, as we have already stated, are based upon the theory that plaintiff had the right to recover upon count three, if the evidence warranted it. We are. unable to understand upon what facts defendant bases its contention that it was injured by the ruling of the court in respect to count three and the giving of these two instructions. The jury allowed plaintiff $4,000. The uncontradicted evidence shows that the truck was worth, at the time of the accident, between $3,000 and $3,500, and that it was sold, after the accident, for $300. After the accident plaintiff was unable to work' for four months. During that period he was taking \u201cdiathermic treatments\u201d for his spine at the Oak Park hospital and the County hospital. His arms and legs were \u201call banged up and cut and bruised.\u201d He had a stitch under his nose and a cut over his right eye. At the time of the trial he was still taking \u201cdiathermic treatments.\u201d Pour months after the accident he obtained \u201can easy job at the Western Electric as inspector.\u201d It is evident from uncontradicted evidence that the jury did not award punitive damages. In fact, plaintiff, not the defendant, might justly complain of the size of the verdict. Nor do we find any substantial merit in the further contention of defendant that the court erred in giving, at the request of plaintiff, instruction four.\nWe find no merit in defendant\u2019s contention that the court admitted incompetent evidence on behalf of plaintiff and excluded competent evidence offered by it.\nThe court, at the instance of defendant, gave twenty-one instructions, some of which are properly subject to serious criticism. In any event, defendant\u2019s rights were fully protected by the instructions:\nDefendant has had a fair trial and the judgment of the circuit court of Cook county is affirmed.\nAffirmed.\nSullivan, P. J., and Gridley, J., concur.", "type": "majority", "author": "Mr. Justice Scanlan" } ], "attorneys": [ "Fred H. Montgomery, for appellant; Edward C. Craig and Vernon W. Foster, of counsel.", "Guerine & Brust, for appellee; Guy C. Guerine, of counsel." ], "corrections": "", "head_matter": "Louis Provenzano, Appellee, v. Illinois Central Railroad Company, Appellant.\nGen. No. 36,700.\nOpinion filed November 21, 1933.\nRehearing denied December 4, 1933.\nFred H. Montgomery, for appellant; Edward C. Craig and Vernon W. Foster, of counsel.\nGuerine & Brust, for appellee; Guy C. Guerine, of counsel." }, "file_name": "0475-01", "first_page_order": 505, "last_page_order": 516 }