dissenting:
This case was originally assigned to me for the purpose of preparing the opinion of the court. I wrote an opinion which was adopted at the last October term, and the judgments of the circuit and Appellate Courts were then reversed and the cause was remanded. Later a rehearing was allowed upon petition of the appellee, and the cause being again considered, the foregoing opinion was written and adopted and a judgment of affirmance entered. I think that opinion, which is now the majority opinion, shows a misapprehension of the proof, and I accordingly include herein the substance of the opinion originally prepared by me so far as it deals with the controlling question in the cause, and to that portion of that opinion I add a few paragraphs.
The train was negligently operated, as charged. This is not denied. The position of appellants is, that a verdict should have been directed for the reason that there was no evidence which tended to show that the deceased was in the exercise of due care for his own personal safety during the time immediately preceding the accident. It was necessary for appellee to show, by a preponderance of evidence, that at the time of the accident, and immediately preceding that occurrence, his intestate was so in the exercise of ordinary care. Jorgensons. Johnson Chair Co, 169 Ill. 429.
Notice must be taken of the fact that a railway crossing at grade over a highway is a place of danger, and the exercise of due care at such a place ordinarily requires something more from a traveler upon such a highway than would be required of him if he were in his own dooryard or passing along a street or highway where there was no possibility of being struck by a passing engine, and it is the duty of a person about to cross a railway track at such a place to approach cautiously and endeavor to ascertain if there is present danger in crossing. (Pennsylvania Co. v. Frana, 112 111, 398; Chicago, St. Louis and Pittsburg Railroad Co. v. Hutchinson, 120 id. 587.) When the deceased started north from the blacksmith shop he was .two hundred and fifty feet south from the crossing of the track on Front street. North and west of the blacksmith shop, in the same block and south of the railroad right of way, were two corn-cribs and a warehouse, the latter being nearest the tracks. There were spaces between the blacksmith shop and the corn-cribs and between the corn-cribs and the warehouse. Had deceased looked to the west as he passed these spaces he could have seen portions of the track of the appellants. Whether he could then have seen the approaching train can not be determined from the evidence in this case. He could not obtain an unobstructed view of any considerable portion of the railway track to the west until he had passed far enough north to reach a point where the warehouse would no longer interfere with his looking in that direction. Just how far south of the main track this point would be is not certain from the testimony. Appellee by his brief says that the point is twenty-seven feet south of the main track, and for the purposes of this opinion I accept that statement as correct. At this point, looking to the west, while standing up in his wagon, as he was, Shively could have seen an approaching train at any place between the crossing and the depot,—a distance of eight hundred and fifty-five feet,— and this he would have been able to do at any time after leaving that point until the moment he was struck by the engine. He was slightly deaf. He wore a plush cap, which he pulled down over his ears for the purpose of protecting them from the cold. He had in the farm wagon in which he was traveling, three or four hundred feet of lumber, composed of boards which were a few feet longer than the wagon bed and extended beyond the rear end of the bed. As he drove along over the frozen ground the ends of the boards so extended, as a result of the motion of the wagon, slapped together, and with the noise of the moving wagon further interfered with his hearing, so far as his ability to observe the whistling of the engine' and the ringing of the gong at Front street was concerned. As he started from the blacksmith shop his horses moved at a slow jog-trot,— a little faster than a man could walk,—and continued at that rate until they reached a slight incline leading up to the crossing, where they slowed up and proceeded at a walk until they came upon the crossing of the main track. The incline begins about forty feet south of that crossing. Before he reached the main track he crossed a switch, and further west on that switch was a coal car, which, however, would not have interfered with his seeing the approaching train had he looked after reaching the point twenty-seven feet south of the main track. The testimony of all the witnesses indicates that he did not hear the ringing of the electric gong at Front street, although it seems to have been heard by all the other persons in that vicinity who were upon the street; that he did not hear the whistling of the engine, although the danger signals emitted by the whistle were so loud and shrill that they were heard by witnesses who were in dwelling houses and in places of business in the neighborhood, and the character of those signals was so alarming, on account of their piercing quality, that several of the witnesses who were within the buildings went to the windows to ascertain, if possible, the occasion of the blasts. One man who was on the street near the wagon, as it approached the crossing, becoming cognizant of the situation, attempted to stop Mr. Shively by shouting to him. To all of this he was entirely oblivious. The testimony of practically all the witnesses shows that from the time they first observed him, some distance before he reached the point, where he could see past the warehouse and along the track as far as the depot, he drove directly to and upon the main track without looking either to the east or west, until he was struck by the engine. The testimony of one or two witnesses, however, which is most favorable to appellee and which alone can be considered by us in determining whether a verdict should have been directed, is to the effect that he looked neither to the right nor to the left until the moment when he was passing upon the main track; then he looked to the east along the track, turned his head and glanced to the west, made a motion forward with his hands as though to slacken the lines and hasten the- horses, and then immediately and quickly drew his hands back as though to stop the team, and at that instant the engine struck the wagon and his death resulted. The horses, with the tongue,and front wheels of the wagon, were knocked off on the north side of the track, while the deceased and the parts of the wagon other than those just mentioned were thrown off on the south side.
Appellee argues the case on the theory that the acts of the deceased just recited, in looking both ways and first attempting to hasten and then attempting to stop his team, occurred when the deceased was still progressing toward the main track and before the horses passed upon it, and that his failure to take such measures as would have saved his life resulted from his excitement induced by the impending calamity, and the rule is invoked that under the stress of such a moment the law does not require him to act with the same prudence as would a person ordinarily careful under ordinary circumstances. No such construction as that contended for by appellee can fairly be placed upon the testimony of any witness. It will be found, when all the testimony of each witness is considered, that the testimony of no witness indicates that the deceased glanced west before the moment his horses passed upon the main track, when he had reached a point where the calamity could not have been averted by any human agency. After his team stepped upon the main track, when he first looked to the west and saw the approaching train, no failure to exercise due care is or can be imputed to him. No doubt he did all that any man could do after that instant to save his life, but the impact followed so suddenly that it was not then possible for him to have escaped the danger by the exercise of the highest degree of care and diligence. The lack of evidence tending to show the exercise of ordinary care which is relied upon is not a lack of evidence to show the exercise of that care after the moment at which deceased looked to see if a train was approaching from the west, but is lack of evidence tending to show that he exercised such care, after reaching the point twenty-seven feet south of the crossing, while approaching the main track and while placing himself in position where there was no possible escape from danger attending the approach of the oncoming train.
The case is one where a man with impaired hearing, of which he was conscious, with a covering over his ears, and. who therefore could not hear an approaching train, drove upon a railway crossing without taking any precaution whatever, by the exercise of his sense of sight, to ascertain whether it was safe so to do. It is true, as has ■often been said of persons who possessed all their faculties, that a recovery is not necessarily barfed by a failure to look and listen in approaching such a crossing. The exercise of due care, howevef, on the part of one whose hearing does not serve him, upon approaching such a crossing, means something more than the mere quiescent and inattentive passage of the traveler. If he cannot hear, and there is nothing to prevent his looking and his attention is not otherwise engrossed, it is his duty to look. If the attention of the deceased had been attracted to some unusual display on the side of the track opposite to him, as the passage of a procession of some kind or the maneuvers of a military company, or if there had been a train standing or approaching upon another track to the east of him and he had been watching to avoid danger from that train, or if his team had been difficult to control and he had been occupied in"urging them, forward or in attempting to restrain them, or if he had been watching a team coming from the north, the jury could, if they saw fit, properly find that in the exercise of due care he might not look for the train approaching from the west. This record discloses no such circumstance. The uncontradicted proof is, that a man who was in a condition and situation where he was unable to hear the most piercing blasts of the whistle, without anything whatever to engross his attention, drove upon the track before exercising any precaution by looking to ascertain whether a train was approaching. One who can both see and hear as he approaches a railway crossing, frequently, no doubt, relies upon the fact that under ordinary circumstances if a train is approaching he will hear its warning signals and its rumbling before it reaches the crossing, and that he will thus be advised of its coming without looking and without taking any special precautions to enable him to hear. Deceased could not so rely upon his hearing, because it was defective and because he had covered his ears. In order to be in the exercise of due care for his personal safety it was necessary for him to make greater use of his vision than would have been the case had he not possessed the infirmity noted and had he not placed a covering over his ears which interfered with the use of the diminished sense. (2 Thompson on Negligence, sec. 1658; Chicago and Rock Island Railroad Co. v. Still, 19 Ill. 499; Chicago and Northwestern Railway Co. v. Sweeney, 52 id. 325; Chicago, Rock Island and Pacific Railway Co. v. Pounds, 82 Fed. Rep. 217; Phillips v. Railway Co. 111 Mich. 274.) The undisputed evidence shows that he made no use of his vision that would advise him of an approaching train from the west in time to avoid danger therefrom.
In the Still case, after referring to the fact that the evidence as to the defendant’s negligence was conflicting, the court continued: “But there .is no conflict of evidence that the appellee was sitting down in the bottom of the wagon, with his back turned in the direction from which the cars were approaching, so as to prevent his seeing them. It also satisfactorily appears that by looking in the direction of the cars he could have seen them for a considerable distance and for a sufficient length of time to have avoided all damage, and that the sound of the approaching train could be heard for a distance sufficient to give ample time to have prevented this collision. He must have known that he was crossing a railroad track. He knew that such a crossing was attended with danger, and having placed himself in a position that prevented him from being able to see the approach ¿f the cars, and having tied up his ears in a manner that must have prevented his hearing the approach of the trains, is certainly gross negligence.”
The case of Chicago and Northwestern Railway Co. v. Sweeney, supra, is on principle very much akin to this. There the deceased, a track repairer, had a cap drawn closely over his ears and was working with a shovel in his hands, and without looking either way for approaching cars or engines stepped upon the railway track with his back toward an approaching train, which struck and killed him. This court held no right of recovery existed. In the case at bar, it is true, the deceased did not have his back directly toward the approaching train, but the train as it approached him was to his left and slightly back of him, and the accident resulted from a failure to look, precisely as in the Sweeney case.
The two cases last referred to were adjudicated before the erection of our Appellate Courts, but the decision reached by this court in each case resulted, not from weighing conflicting testimony and deciding where lay the greater preponderance, but from determining, as a matter of law, what the rights of the parties were upon a state of facts in reference to which the record disclosed no conflict in the evidence. The inability of the deceased to hear distinguishes this case from a long line of cases relied upon by appellee, in each of which the’person injured was in the enjoyment of all his faculties.
In view of the infirmity of the deceased, and in view of the manner in which he had his ears covered, I do not think it can be said that there was evidence which fairly tended to show that he was in the exercise of due care for his personal safety. A verdict for the defendants should ■have been directed.
■ The statement contained in the majority opinion relative to the proof, which seems erroneous, but which, if correct,' might justify an affirmance, and which is the only statement of proof found in that opinion which, if accurate, could warrant affirmance, is this: “There is some evidence that when the deceased passed the line of obstructions that prevented his seeing the track he did look.” I understand the quoted language to mean that there was proof that he looked west toward the approaching train when he was distant from the crossing approximately twenty-seven feet. As I read the record there was no such proof. If, however, there had been such proof, it is at once manifest that the numerous authorities cited on failure to look and listen have no application here. On the other hand, if there was no such proof, those authorities, stating a familiar 'doctrine long unquestioned, are still wholly without application, because the majority fail to attach significance to a controlling factor in the case, viz., the inability of the deceased to hear, as he drove upon the track.
It may be here observed that the language quoted by the majority from "the case in the 214th Illinois, (p. 606,) had absolutely no bearing upon the question whether there was proof tending to show the exercise of due care on the part of the plaintiff in that case. There, as here, the train was traveling at a rate of speed forbidden by ordinance. The defendant contended that the evidence did not warrant the conclusion that the unlawful rate caused the injury. This court called attention to the language of section 87 of chapter 114, Hurd’s Revised Statutes of 1903, in regard to the presumption of negligence arising against a railroad company where its train, running at a rate forbidden by ordinance, does damage to a person or property, and by the quoted language drew the presumption required by the statute as to the cause of the injury, and held that when such presumption arose the defendant could not succeed on the theory that the unlawful rate was not the cause of the injury, unless it offered evidence which rebutted the presumption. That language, as applied to the question then under discussion, was entirely accurate, but it is misapplied when quoted with reference to the question whether there is proof tending to show that the plaintiff was in the exercise of due care. It bore only on the question of establishing and rebutting the presumption that the forbidden rate of speed was the cause of the injury. Even if such presumption is raised and not rebutted, the plaintiff will still fail to recover if he does not offer evidence tending to show that he was in the exercise of due care. Many persons who saw the accident involved in the case at bar testified. They were examined and cross-examined at great length in reference to many details, and no doubt a detached fragment of the testimony of some witness, if .that fragment was considered apart from the remainder of the. testimony of that witness, might be regarded as indicating that the deceased looked toward the approaching train before his horses went upon the main track; but, as above indicated, when the testimony' of that witness is all considered together, it does not tend to show that the deceased looked in that direction until the moment his team stepped upon the trade. The only way to now demonstrate by the evidence that this is so, would be to set out in this opinion all the evidence of each of these witnesses, which, of course, is not practicable. Moreover, appellee has made that labor unnecessary. By his petition for rehearing, in pointing out the alleged misapprehensions of the court as evidenced by the first opinion filed herein, he said:
“This court slightly misunderstands the position of appellee’s counsel. They do not claim that Shively looked either to the east or to the west before his horses reached the crossing. What they claim is this: that Shively discovered the approach of the train (by hearing the danger signals) before his horses were upon the main track; that he made this discovery by the sense of hearing the danger signals,—not by looking at all. Having once actually made this discovery it was not his duty to look, but to try to get his horses out of the way, and that this is exactly what he did. In discovering the approach of this train by hearing the alarm signals (the instant he arrived at the twenty-seven foot viewpoint) he certainly became aware of its approach just as quickly as if he had actually looked. Whether he looked, therefore, between that point and the main track is wholly immaterial. Looking would have added nothing to what he already knew. His. business from the time he knew, at the furthest viewpoint, was to save himself and his horses.” (The italics are those of counsel for appellee.)
The majority do not base the judgment of affirmance upon this theory of appellee, as to do so would be to subscribe to the doctrine that a traveler, knowing that a train is approaching an intersection which he is about to pass over, need not usé his eyes to assist him in avoiding injury.
The judgment cannot be affirmed upon the theory advanced by appellee, because he is wrong about the law.' It should not be affirmed upon the theory of the majority, because the majority are, as it appears, in error about the proof.
The only statement of fact contained in the majority opinion in reference to the proof, upon which the judgment could rightfully be affirmed, is, as it seems to me, without foundation in the record, and that statement is expressly disavowed by the language of counsel for appellee above quoted from the petition for rehearing, which was written after counsel had tried the case in three courts and after they had in that way become entirely familiar with all this record contains.
The method pursued by the majority in arriving at the result is unusual and seems to be without precedent in this court. There should be a judgment here reversing and remanding.
Cartwright, C. J., and Carter, J.: We concur in the dissenting opinion of Mr. Justice Scott.