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question, viz., "If the deceased had looked the train, then, and in that case, it is immabefore the accident, could he have discovered terial whether such signals were given or the approach of the train in time to have not, and any neglect to give them on the avoided the accident?" the jury answered part of the defendant would not furnish suffi"Yes;" and to the third question, viz., "If cient ground for a recovery." "(12) The jury the deceased had listened before the approach are instructed, as a matter of law, that if of said train, could he have discovered the you believe, from all the evidence in this approach of the train in time to have avoided case, that if the deceased had looked and listthe accident?" they answered, "If he had con- ened for approaching trains, he could, by the centrated his attention in that particular di- exercise of either of these faculties, have disrection, yes." The first question, viz., "Was covered the approaching engine in time to the deceased exercising reasonable care for his have avoided the accident, the presumption safety at the time he was killed?" was also of law would be that he did know of the apanswered, "Yes." The question then pre-proach of said engine. When a person can sents itself whether, if it be admitted that the see they must see, and it will not avail them deceased neither looked nor listened for the to say they did not." Of these instructions, train, and also that if he had looked he could the seventh is based upon the theory that, if have seen it, and if he had listened with his the deceased failed to exercise ordinary care attention concentrated in that direction he to see and ascertain the approach of the train, could have heard it in time to avoid the acci- such negligence was sufficient to bar a recovdent, such facts would constitute such con-ery, wholly irrespective of the degree of negclusive proof of contributory negligence on ligence of which the servants of the defendthe part of the deceased as would have barred ant may have been guilty in failing to give a recovery. Undoubtedly a failure to look or the requisite signals; that is to say, even listen, especially where it affirmatively ap- though the defendant's servants may have pears that looking or listening might have en- been guilty of negligence in that behalf so abled the party exposed to injury to see the gross as to amount to a wanton or reckless train, and thus avoid being injured, is evi-disregard of the safety of the deceased or of dence tending to show negligence. But they the public. That such is not the law is too are not conclusive evidence, so that a charge well established to require the citation of auof negligence can be predicated upon them as thorities. The proper rule was laid down a matter of law. There may be various mod- with substantial accuracy in the thirteenth ifying circumstances excusing the party from instruction given at the instance of the delooking or listening, and, that being the case, fendant, in which it was held that if the dea mere failure to look or listen cannot, as a ceased, by the exercise of ordinary care, could legal conclusion, be pronounced negligence have seen the approach of the train, then the per se. In determining whether the special law made it his duty to see it, and that, if he findings are inconsistent with the general ver- failed in such duty, his failure would bar a dict, so that the latter must be held to be con- recovery, unless the evidence showed that the trolled by the former, this court cannot look defendant or its servants were guilty of negat the evidence. All reasonable presumptions ligence so gross as to amount to a willful diswill be entertained in favor of the verdict, regard of the rights or safety of the public. while nothing will be presumed in aid of the By this latter instruction the law was laid special findings of fact. The inconsistency down as favorably for the defendant as it must be irreconcilable, so as to be incapable had a right to ask, and the seventh instrucof being removed by any evidence admissible tion was therefore properly refused. The under the issues. Pennsylvania Co. v. Smith, twelfth instruction was clearly erroneous. 98 Ind. 42; McComas v. Haas, 107 Ind. 512, There is no legal presumption by virtue of 8 N. E. Rep. 579; Redelsheimer v. Miller, which the deceased, if he could have discov107 Ind. 485, 8 N. E. Rep. 447. Under these ered the approaching engine by either looking principles, it must be held that there is no or listening, must be deemed to have actualnecessary or irreconcilable inconsistency be- ly known that the engine was approaching; tween the special findings and the general nor is there any rule of law which, under the verdict, especially in view of the fact that the circumstances here supposed, would treat jury, notwithstanding their findings that the him as though he had actual knowledge of deceased did not look or listen, also found its approach. Failing to ascertain the apthat he was in the exercise of reasonable care.proach of the engine when the means of doComplaint is made of the refusal of the ing so were within his reach would be mere court to give to the jury certain instructions negligence, but failing to get out of the way asked on behalf of the defendant. Two of of the engine when he actually knew of its the instructions so refused are the following: approach would be suicide. "(7) The jury are instructed, as a matter of law, that if you believe from the evidence that the deceased could, by the exercise of ordinary care and prudence on his part, have seen or ascertained the approach of the train in time to have avoided the accident, even if the necessary signals were not given by the defendant, or its servants in charge of

The following instruction (the seventeenth of those asked by the defendant) was also refused: "The jury are instructed, as a matter of law, that if you believe, from the evidence in this case, that both the plaintiff and the agents and servants of the defendant were guilty of gross negligence contributing to the injury complained of in this case, your ver

dict should be for the defendant." This in-deceased was killed the general public had struction contained a proposition of law no right to be. This may be admitted, but which has been frequently approved by this it is nevertheless true that the deceased was court, but we are of the opinion that, in view rightfully there, and had been working there of the rules laid down in various of the in- for such length of time as raises some implistructions given, the defendant could not cation of notice to the defendant of his preshave been materially prejudiced by its re-ence there, and of his employment. It canfusal. By the fourth instruction the jury not be said that railroad companies owe no were told that, if the plaintiff had failed to duty of care to those who are rightfully upon prove that the deceased was in the exercise their right of way, even though the general of ordinary care and prudence for his own public be excluded therefrom. As the twensafety, she could not recover. The legal ef- tieth instruction was in effect, a denial of fect of a want of ordinary care on the part of such duty, not only to the general public, but the deceased was thus stated in a form just also to the deceased, it was properly refused. as available for the defendant as it was in We are of the opinion that the record contains the instruction refused. The sixth instruc- no material error, and the judgment of the tion held, as a matter of law, that ordinary appellate court will therefore be affirmed. care, when one is surrounded by dangers, and his position exposes him to impending disaster, involves the exercise of the highest degree of vigilance and care, and that the deceased was bound to exercise that degree of care, and that if by its exercise he might have avoided injury the plaintiff could not recover. In various of the other instructions 1. The failure of a railroad company to ring the given the effect of the negligence of the de- bell and blow the whistle on approaching a crossceased upon the plaintiff's right to recovering, as required by statute, is negligence per se. 2. It cannot be said, as a matter of law, that the was stated, and we think, therefore, that the failure to look and listen before crossing a railroad jury were fully instructed on that question, track is negligence per se. The question of conand that the instruction refused could have tributory negligence arising from such omission is one of fact for the jury. given them no material information or assistance not embodied in the other instructions.

(129 III. 540)

TERRE HAUTE & I. R. Co. v. VOELKER. (Supreme Court of Illinois. June 17, 1889.) INJURIES AT CROSSINGS- CONTRIBUTORY NEGLI

GENCE-ORDINANCES.

3. Defendant asked to submit to the jury the following special question, which the court modified by inserting the clause in brackets: "Could the deceased [if he had used ordinary care and diligence] have seen or heard the defendant's train approaching *** if he had looked or listened for its approach to said crossing before he drove or went on to said crossing at the time he was proper, as without it the question called for received the injury?" Held, that the insertion mere evidentiary, and not controlling, facts.

4. The charter of the city of East St. Louis proby the approval and signature of the mayor, (2) by his retaining it longer than five days, (3) by a majority vote of the council, over his veto. Also that all ordinances may be proven inter alia, by an ordinance, certified by the city clerk, and bearthe seal of the corporation. Held, that a copy of ing the corporate seal, is prima facie evidence of the existence of a duly-enacted and operative ordinance, and of its terms, though it does not bear the mayor's signature.

The only other ruling of the court in relation to the instructions of which complaint is now made is its refusal to give the defendant's twentieth instruction, which was as follows: "The jury are instructed, as a matter of law applicable to this case, that, under the pleadings in this case, the defendant, the railway company, had a right to run its en-vides that an ordinance may become effective (1) gine and train, at the time and place of injury to the deceased, at any rate of speed consistent with the safety of its employés and the property on its train." The declaration contains no averment of any municipal ordinance of the city of Chicago in relation to the speed of trains. But it cannot be admitted that, in the absence of such ordinance, a railroad company has no duty on that subject to the public. It may be as safe for the employés and property on its trains to run its trains 30, 40, or 50 miles an hour through a populous city like Chicago as in the country, but no one would claim that so doing would not be This was an action on the highly dangerous to the general public, or case, brought by Julia Voelker, administrathat a railroad company, even in the absence trix of the estate of Edward Voelker, deof all municipal regulation, would be at lib-ceased, against the Terre Haute & Indianaperty to adopt the same rates of speed in the city as in the country. Railroad companies, where there is no express statute or ordinance, are bound by the rules of the common law to exercise their franchises with a due regard to the interests, the welfare, and safety of the public, and in fixing the rate of speed at which their trains may be run the public safety is a matter which is always entitled to be taken into consideration.

But it is said that in the place where the

Appeal from appellate court, Fourth district. John G. Williams and A. S. Wilderman, for appellant. W. C. Kueffner, for appellee.

BAILEY, J.

olis Railroad Company, to recover damages for the death of the plaintiff's intestate. The trial, which was had before the court and a jury, resulted in a verdict in favor of the plaintiff for $3,500, and for that sum and costs the court, after denying the defendant's motion for a new trial, gave judgment for the plaintiff. Said judgment was affirmed by the appellate court on appeal, and by an appeal from that court the record is brought here for review.

.

The charter of the city of East St. Louis empowers the city council of said city, by ordinance, to provide for and regulate various matters, and, among others, "to direct and regulate the speed of locomotive engines and cars."

Said charter also authorized the

The declaration contains five counts, but, | such ordinance was a true and correct copy a demurrer having been sustained to the of the original ordinance of the city, as the first and second, only the remaining three same appeared of record in his office. The are brought up by the transcript of the rec-signature of the mayor did not appear at the ord. Each of said counts alleges that the de- bottom of either ordinance. ceased, at the time he received the injuries of which he died, was riding, with all due care and caution, in a wagon drawn by two horses, along St. Clair avenue, in the city of East St. Louis, and that at the point where said avenue crosses the track of the defendant's railroad the wagon in which he was city council to make, pass, publish, amend, riding was struck by a locomotive engine and repeal all ordinances not inconsistent running on said railroad, and that the de- with the constitution of the United States, ceased thereby received the injuries of which or of this state, for the good government, he soon thereafter died. The third count al- peace, and order of the city, and the trade leges a breach by the defendant of its statu- and commerce thereof, that might be necestory duty to cause a bell of at least 30 pounds sary and proper to carry into effect the powweight to be rung or a steam-whistle to be ers vested by said charter in said city. A sounded on the engine, at least 80 rods from subsequent section, and the one upon which the highway, and kept ringing or whistling the objection now under consideration is until the highway was reached, and that by based, is as follows: "All ordinances and reason of such breach of its statutory duty resolutions shall, before they take effect, be said locomotive engine collided with said placed in the office of the mayor, and, if he wagon, and inflicted said injuries. The shall approve thereof, he shall sign the same; fourth count alleges an ordinance of the city and such as he shall not approve of he shall of East St. Louis limiting the speed at which return to the city council, with his objecpassenger trains should be run in or through tions thereto; upon which return the vote by said city to 10 miles per hour, and also al- which such ordinance or resolution was leges that the servants of the defendant, at passed shall be reconsidered, and if, after the time the deceased was injured, were run- such reconsideration, a majority of all memning its engine and train within said city at bers elected shall agree (by the ayes and a rate exceeding 10 miles per hour, to-wit, at noes, which shall be entered upon the jourthe rate of 30 miles per hour, and that in nal) to pass the same, it shall go into effect; consequence thereof the deceased received and if the mayor shall neglect to approve or said injuries. The fifth count merely alleges object to or retain any such ordinances or that the defendant, by its servants in charge resolutions for a longer period than five days of said locomotive engine and train, so neg-after the same shall be placed in his office, ligently and carelessly run and drove the as aforesaid, the same shall go into effect.' same that, by reason of such negligence and 1 Priv. Laws 1869, p. 896. carelessness, said engine run against said. wagon, and inflicted said injuries, thereby causing the death of the deceased.

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By this section three separate modes are provided by which an ordinance, after being passed by the city council, may become operThe first question presented by the counsel ative, viz.: (1) by the approval of the mayor, for the defendant arises upon the evidence evidenced by his signature; (2) by a majority offered to prove the existence of the ordi- vote of the council, on reconsideration, after nance alleged in the fourth count. A docu- being returned by the mayor with his objecment was offered containing what purported tions; and (3) by being retained by the mayto be certified copies of two ordinances of the or more than five days. The objection ofcity of East St. Louis, and said ordinances fered is merely that the ordinances in queswere thereupon objected to by counsel for the tion did not appear to have become operative defendant upon the specific ground that they by a particular one of these modes. The were not signed by the mayor or city clerk of fact alleged, viz., that they had not been said city. This was the only objection made, signed by the mayor, may be admitted, and and, it being overruled, an exception was the conclusion that they have never taken duly preserved by the defendant. The first effect by no means follows. A specific obof said ordinances provided, among other jection, based solely upon a particular fact, things, that no locomotive or train of cars is, strictly, a waiver of all objections based should run or be drawn within the limits of upon other facts not specified or relied upon. said city at a greater rate of speed than six This rule is based upon the equitable considmiles an hour, and the second was an amend-eration that, if the other objections had been atory ordinance, providing that no passenger made, it might have been within the power train should run or be driven, within the of the party offering the evidence to obviate limits of said city, at a greater rate of speed them. If it had been objected that the ordithan ten miles an hour, and no other locomotive or train at a greater rate of speed than six miles an hour. Appended to each was a certificate of the city clerk, under his hand and the corporate seal of the city, that

nances had not gone into effect in either of the modes provided by the charter, the plaintiff might have been able to show that they had been passed by the council over the mayor's veto, or that they had become operative by

his retaining them more than five days with- | above mentioned. Under these decisions, as out signing them.

well as upon principle, it must be held that the copies of the ordinances in this case, certified by the city clerk and authenticated by the corporate seal, were competent evidence, tending to show that said ordinances had been duly passed by the city council, and that they had gone into effect in one of the modes prescribed by the charter.

The only remaining questions in the case which are open for consideration here arise upon the instructions to the jury. The dis

But the propriety of the admission of said ordinances in evidence may be placed on other grounds. The signature of the mayor, where he approves an ordinance, is manifestly no part of the ordinance itself. It is merely the evidence of his approval required by the charter. But it is no more a part of the ordinance than are the minutes of the proceedings of the city council in which is recorded the vote by which the ordinance is passed. True, an ordinance can have no validity un-cussion, so far as it is presented by the briefs til it has been passed by the council, and of counsel, relates mainly to the defendant's then placed in the mayor's office, and after- first instruction, which was modified by the wards approved and signed by him, or re- court, and given to the jury as modified, and tained without action beyond the prescribed to the defendant's third instruction, which period, or passed over his veto. The ordi- was refused. The defendant's first instrucnance, however, need not bear upon its face tion was as follows, the modifications conthe evidence of all or any of these proceed- sisting in striking out the words inclosed in ings; except, of course, where it is signed brackets, and inserting those printed in italby the mayor, such signature will necessarily ics: "The court instructs the jury that it is appear. Possibly, if no provision had been the duty of a person approaching a railroad made by statute as to the mode of proving crossing to look along the line of the railroad the ordinances, it would have been incumbent to see if a train is coming, or to listen, or to on the party alleging their existence to prove use any other reasonable means of informing each of the steps by which they were passed himself of an approaching train, before going and given effect. Article 7, § 13, of the char- on such crossing; [and, if he fails or omits to ter, however, provides as follows: "All ordi- do so, such omission on his part is negligence nances and resolutions of the city may be in itself;] and if the jury believe, from the proven by the seal of the corporation; and evidence in this case, that the deceased, Edwhen printed or published in pamphlet or ward Voelker, approached the crossing in book form, and purporting to be printed or question in this case in a covered milk-wagon published by the authority of the city coun- which had the sides thereof closed, and that cil, the same shall be received in evidence in he did not look or listen for the approaching all courts and places without further proof." train, and that if he had looked or listened Here the proof was made by the corporate for the approach of said train he might have seal, and a certificate of the city clerk, who seen or heard said train before driving or gowas the proper custodian of the seal. This ing on said crossing, [then he,] and that in was all that was required to establish, at so doing he failed to exercise ordinary care least prima facie, the existence of the ordi- to avoid the injury which he received, [and,] nance, and its terms. In Pendergast v. City then the plaintiff cannot recover, even though of Peru, 20 III. 51, it was held, under a sim- the jury may further believe from the eviilar provision of the charter there in ques-dence that the defendant's servants or emtion, that a copy of the city by-laws, certified by the city clerk, and verified by the corporate seal, was a literal compliance with the charter, and was properly admitted in evidence. In Lindsay v. City of Chicago, 115 Ill. 120, 3 N. E. Rep. 443, where the question arose under the provisions of article 5, § 4, of the general statute for the incorporation of cities and villages, it was contended that the passage of the ordinance could be established only by the production of the journal containing the proceedings of the city council, showing the vote by which it was passed, but it was held that a certified copy of the ordinance, attested by the clerk under the seal of the corporation, was competent evidence of its passage. In Schott v. People, 89 Ill. 195, we said: "It is doubtless competent for the legislature to enact that the simple production of the ordinance, or of a copy thereof, shall be prima facie evidence that every step has been taken with reference to it essential to make it a valid ordinance;" and it was held that such was the effect of

ployés failed to ring the bell or sound the whistle as required by law, and were running said train at a greater rate of speed than ten miles an hour." The defendant's third instruction, which was refused, was as follows: "The court instructs the jury that it is the duty of a person approaching the crossing of a railroad, over a public highway, to listen and to look both ways, along the railroad track, for the approach of the railroad train, before going upon the railroad; and if he goes upon the track without taking such precautions to guard against an accident, and sustains an injury in consequence of his failure to take such precautions, he cannot recover; and if the jury believe from the evidence that the said deceased, Edward Voelker, went upon the crossing of the defendant's railroad at St. Clair avenue without looking or listening for the approach of the train, and received the injury from which he died, then the plaintiff cannot recover, and the verdict should be for the defendant."

The proposition raised by both of these the section of the general incorporation act instructions, and upon which the circuit

court ruled against the defendant, was that gence, and mental capacity of the party, and going upon a railway track at the point by a variety of other circumstances by which where it crosses the highway or street, with- he may be surrounded. It follows that no out looking or listening for approaching invariable rule can be predicated upon the trains, is negligence per se; and that such mere act of failing to look or listen, but a conduct, in case of an injury at such cross-jury, properly instructed as to the legal duty, ing, constitutes such contributory negligence in respect to care and caution, of a person as will bar a recovery therefor. It has been approaching a railway crossing, must draw the uniform doctrine of this court that neg- from such act, in connection with all the atligence is ordinarily a question of fact for tendant circumstances, the proper concluthe jury. Doubtless there may be conduct so sion as to whether he is guilty of negligence clearly and palpably negligent that all rea- or not. sonable minds, without hesitation or dissent, Mr. Bishop, in his recent treatise on Nonwould so pronounce it. When that is so the Contract Law, § 1043, after referring to the inference of negligence may properly be said decisions which seem to hold that the duty to be a necessary one, and such conduct may to look and listen is an absolute one, and that be treated as negligent per se. But, as said its omission is negligence per se, says: "But in Railroad Co. v. Maugans, 61 Md. 53: it is believed that most courts more accurate"When the question arises upon a state of ly regard this sort of matter as mere evifacts on which reasonable men may fairly ar-dence, like any other in the case; submitting rive at different conclusions, the fact of neg-all, with proper instructions, to the jury, yet ligence cannot be determined until one or the with the exceptions recognized in the genother of these conclusions has been drawn eral law of negligence. To omit looking and by the jury. The inferences to be drawn listening, where neither can do any good,-as from the evidence must either be certain and where the track is hidden from sight, and incontrovertible, or they cannot be decided other sounds drown the noise of the cars,upon by the court. Negligence cannot be is not contributory negligence; and there are conclusively established by a state of facts other circumstances in which the rule of upon which fair-minded men may well dif-looking and listening cannot, in the nature of fer." See, also, Railroad Co. v. Owings, 65 this sort of thing, be inflexible. Therefore, Md. 502, 5 Atl. Rep. 329. It has frequently to go upon the track in disregard of it is been said in judicial decisions in this state not necessarily, and as a question of law, and elsewhere that it is the duty of persons negligence." In Railway Co. v. Chapman, approaching a railway crossing to look and 57 Tex. 75, it was held that a person aplisten before going upon the track, and that proaching a railway track at a road crossing their failure to do so is negligence; but it is bound to use such precautions as a prudent will be found generally, though not uniform-nan would resort to under like circumly, on examining the cases where such lan- stances, but any attempt by the court to preguage occurs, that it has been used in dis- scribe the precise thing he should do in excussing the duty as to care and caution in ercising such caution would be an invasion approaching a railway crossing, viewed as a of the province of the jury, by charging on mere question of fact, and not as a question the weight of evidence. In Laverenz v. of law. It is doubtless a rule of law that a Railroad Co., 56 Iowa, 689, 10 N. W. Rep. person approaching a railway crossing is 268, the court, after reviewing various aubound, in so doing, to exercise such care, thorities, says: "These, and many other cases caution, and circumspection to foresee dan- which might be cited, establish the doctrine ger and avoid injury as ordinary prudence beyond question that a person is not neceswould require, having in view all the known sarily, and as a question of law, negligent in dangers of the situation; but precisely what going upon a railroad track without looking such requirements would be must manifestly and listening for approaching trains." differ with the ever-varying circumstances Plummer v. Railroad Co., 73 Me. 591, it is under which such approach may be made. held that the fact that a person who, in atOrdinarily, of course, the diligent use of the tempting to cross a railroad, does not, at the senses of sight and hearing is the most obvi- instant of stepping on it, look to ascertain if ous and practicable means of avoiding in a train is approaching, is not conclusive of a jury in such cases; but occasions may, and due want of care on his part. often do, arise where the use of those senses The foregoing authorities are entirely in would be unavailing, or where their non-harmony with repeated decisions of this use may be excused. The view may be ob- court, but, as the contrary doctrine is very structed by intervening objects, or by the strenuously insisted upon by counsel for the darkness of the night. Other and louder defendant in this case, we have been disposed noises, as is often the case in a city, may to discuss the question more at length than confuse the sense of hearing, and render its the condition of the decisions in this state use impracticable. The railway company, by would otherwise have seemed to demand. its flagman or other agent or agency, may In Pennsylvania Co. v. Frana, 112 Ill. 398, put the person off his guard, and induce him the trial court refused to instruct the jury to cross the track without resorting to the that it was the duty of a person, before atusual precautions. The duty may be more tempting to cross a railway track, to stop, if or less varied by the age, degree of intelli- necessary, and look and listen for the ap

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