{
  "id": 5278121,
  "name": "Chicago & E. R. R. Co. and Chicago & W. I. R. R. Co. v. D. S. Sutherland",
  "name_abbreviation": "Chicago & E. R. R. v. Sutherland",
  "decision_date": "1900-04-04",
  "docket_number": "",
  "first_page": "295",
  "last_page": "299",
  "citations": [
    {
      "type": "official",
      "cite": "88 Ill. App. 295"
    }
  ],
  "court": {
    "name_abbreviation": "Ill. App. Ct.",
    "id": 8837,
    "name": "Illinois Appellate Court"
  },
  "jurisdiction": {
    "id": 29,
    "name_long": "Illinois",
    "name": "Ill."
  },
  "cites_to": [
    {
      "cite": "66 Ill. App. 201",
      "category": "reporters:state",
      "reporter": "Ill. App.",
      "case_ids": [
        5188567
      ],
      "pin_cites": [
        {
          "page": "203"
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/ill-app/66/0201-01"
      ]
    },
    {
      "cite": "81 Ill. App. 142",
      "category": "reporters:state",
      "reporter": "Ill. App.",
      "case_ids": [
        5209433
      ],
      "opinion_index": 0,
      "case_paths": [
        "/ill-app/81/0142-01"
      ]
    },
    {
      "cite": "85 Ill. App. 269",
      "category": "reporters:state",
      "reporter": "Ill. App.",
      "case_ids": [
        5266458
      ],
      "opinion_index": 0,
      "case_paths": [
        "/ill-app/85/0269-01"
      ]
    },
    {
      "cite": "75 Ill. App. 208",
      "category": "reporters:state",
      "reporter": "Ill. App.",
      "case_ids": [
        5178105
      ],
      "opinion_index": 0,
      "case_paths": [
        "/ill-app/75/0208-01"
      ]
    }
  ],
  "analysis": {
    "cardinality": 452,
    "char_count": 8579,
    "ocr_confidence": 0.571,
    "pagerank": {
      "raw": 5.207966869300525e-08,
      "percentile": 0.3274961204301872
    },
    "sha256": "199f319e41bb334adfa7a1c4c62aa2e05f60553eee732430490e3f1f4a2a27b5",
    "simhash": "1:a5c421d41c2305fa",
    "word_count": 1531
  },
  "last_updated": "2023-07-14T16:36:14.009445+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "Chicago & E. R. R. Co. and Chicago & W. I. R. R. Co. v. D. S. Sutherland."
    ],
    "opinions": [
      {
        "text": "Mr. Justice Freeman\ndelivered the opinion of the court.\nThis is a suit by appellee to recover for personal injuries. A verdict was returned and judgment thereon was entered in his favor in the Circuit Court, from which this appeal is prosecuted.\nThe principal question to be determined is, whether there is evidence fairly tending to show that appellee\u2019s in juries were caused by negligence on the part of appellants. Counsel for the latter requested an instruction in writing, at the close of the plaintiff\u2019s case, directing' the jury to find the issues for the defendants, which was refused. The motion was renewed in proper form at the conclusion of all the evidence and again denied, the court refusing to instruct the jury that the evidence was. not sufficient in law to sustain a verdict for the plaintiff.\nAppellee\u2019s version of the circumstances attending the accident is that he had crossed the railroad tracks where the accident occurred, and gone east upon Sixty-seventh street, a distance of fifty or seventy-five yards, when he remembered that he had forgotten to order some coal which he had been requested to procure. Turning back he again approached the tracks, this time from the east. He states that he looked, and neither saw nor heard any train; that he thereupon walked upon the tracks intending, to go to the coal office which stood on Sixty-seventh street, west of the railroad crossing; that he had not gone very far when he heard a noise and saw \u201c a train like towards north,\u201d that is, a train going south; that a young lady and gentleman in front of him went across ahead of the approaching engine; that he stopped to let the train pass; that as it did so it made \u201c a terrible noise,\u201d and feeling that he was not far enough away from it, he stepped back, and \u201c right then \u201d he was struck, which was the first intimation he had of the approach of the north-bound train, by which he was injured. Upon cross-examination he states that he can not say whether he looked to the south to see if there was any train coming from that direction or not.\nThe alleged negligence of appellants consisted, according to the statement of appellee\u2019s counsel, first in failing to lower the gates at the crossing where the accident occurred; second, \u201c failing to signal the plaintiff when he was going upon the track; \u201d third, in failing to ring the bell and blow the whistle as required by statute, and by the municipal code of Chicago.\nConsidering these for convenience in their reverse order, it is conceded by appellee\u2019s counsel that \u201c no one testifies positively that the bell was not rung or the whistle not blown.\u201d There is ample testimony that the bell was ringing and the whistle was sounded as the train was approaching the place where appellee was standing. This is not contradicted unless it be by the testimony of plaintiff and another witness who was some distance away, that they did not hear these signals. But- if appellee\u2019s version of the conditions\u2014that when he was struck a south-bound train was passing in front of him with a great noise\u2014is to be accepted, the fact that he and another person say they did not hear the bell or whistle of the north-bound train, can not be said to tend to prove, under the circumstances, that these were not sounded, even in the absence of the overwhelming and uncontradicted testimony that they were.\nIt is said by appellee\u2019s counsel that \u201c the testimony is uncontradicted that the gates were not lowered, and that the flagman was not in sight when the plaintiff went on the tracks,\u201d and it is urged that this \u201c was the grossest kind of negligence.\u201d There is testimony tending to show that the crossing at Sixty-seventh street was in process of repair at the time. Appellee himself testifies that he \u201c knew they were tearing up the crossing there.\u201d The gates upon the east side of the tracks had been removed. It is not quite true to say that the testimony is uncontradicted that the flagman was not in sight' when the plaintiff went on the tracks. Appellee states that he does \u201c not remember seeing a flagman at Sixty-seventh street,\u201d and another witness in his behalf says she could not see the flagman from where she was \u201c because the train was right in the way.\u201d But another of his witnesses testifies that she \u201c did not see a flagman until the train that was going south had gone on, and then I saw the flagman coming around the engine after the man had been picked up.\u201d It appears, therefore, that the flagman was there, apparently on duty, posted on the west side of the crossing, where there was a \u201c tower,\u201d and where for aught that appears it was his duty to be. There is nothing to show that the appellee could not have seen him before entering upon the crossing if he had taken the pains to observe. The assertion so boldly made that \u201c the flagman was not in sight when the plaintiff went on the tracks,\u201d is apparently a mere inference of appellee\u2019s counsel, entirety unsupported, so far as we can discover by the evidence. If appellants are. to be held guilty of negligence causing appellee\u2019s injuries, it must be upon evidence tending to sustain the charge, not upon mere conjecture.'\nThe only remaining ground upon which the charge of appellants\u2019 negligence rests, is that gates were not lowered on the east side of the crossing, from which appellee approached when he turned to go back across the tracks, according to his own version, just before the accident. It appears that there was nothing to obstruct his view of the tracks in either direction. Tie heard and saw the train approaching from the north, and stopped to let it pass. We said in Theobald v. C., M. & St. P. Ry. Co., 75 Ill. App. 208, on p. 215, that gates are put up to give warning that trains are passing or about to pass; and when the appellee saw a train going by in front of him, he had all the warning that the gates could have given, even if a dozen trains had been approaching. The train which struck him was in full view. Its approach was not concealed by the train going south which he says was passing before him. He was injured because he remained so near the rail as to be struck by the right side of the pilot beam of the engine of the north bound train. The evidence affords no ground for concluding that-his being in such position was the result of any negligence on the part of appellants. See, also, Bjork v. I. C. R. R. Co., 85 Ill. App. 269, and I. C. R. R. Co. v. Batson, 81 Ill. App. 142-153. The verdict of the jury and judgment of the trial court upon evidence not conflicting, is not binding upon this court, where upon its consideration we find that such verdict and judgment are clearly against the weight of the evidence, and ought not, as a matter of law, to stand. C. & N. W. Ry. Co. v. Holdom, 66 Ill. App. 201, 203.\nThere is direct conflict in the evidence as to where appellee was when he was struck. It is claimed by the appellants that he was not at the street crossing but walking along the railroad right of way, some distance south of Sixty-seventh street, and there is considerable testimony tending to support this theory. But we have assumed that the facts in this respect were precisely as appellee claims, notwithstanding the apparently preponderating evidence to the contrary.\nIt seems from this record that the material facts are fully before the court, and that a new trial could not benefit appellee.\nThe judgment of the Circuit Court is therefore reversed, but the cause will not be remanded.",
        "type": "majority",
        "author": "Mr. Justice Freeman"
      }
    ],
    "attorneys": [
      "W. O. Johnson and Stirlen & Dickson, attorneys for appellants; E. A. Bancroft, of counsel.",
      "C. K. Denton and F. B. Posey, attorneys for appellee; Thomas E. D. Bradley, of counsel."
    ],
    "corrections": "",
    "head_matter": "Chicago & E. R. R. Co. and Chicago & W. I. R. R. Co. v. D. S. Sutherland.\n1. Negligence\u2014Charges of, Can Not Be Sustained by Mere Conjecture.\u2014 If a railroad company is to be held guilty of negligence causing an injury it must be upon evidence tending to sustain the charge and not upon mere conjecture.\n2. Same\u2014Omission of a Railroad Company to Close Its Gates at a Street Crossing.\u2014Where a person about to cross a railroad track hears and sees an approaching train and stops to let it pass, he must be held to have had all the warning the gates could have given him had they been properly closed, and if injured by the train he can not recover on the ground that the gates were not closed.\nAction ill Case, for personal injuries. Appeal from the Circuit Court of Cook County; the Hon. John Gibbons, Judge, presiding. Heard in the Branch Appellate Court at .the March term, 1899.\nReversed.\nOpinion filed April 4, 1900.\nW. O. Johnson and Stirlen & Dickson, attorneys for appellants; E. A. Bancroft, of counsel.\nC. K. Denton and F. B. Posey, attorneys for appellee; Thomas E. D. Bradley, of counsel."
  },
  "file_name": "0295-01",
  "first_page_order": 319,
  "last_page_order": 323
}
