Bale v. Chicago Junction Railway Co.

Mr. Justice Carter,

specially concurring:

I concur in the'reversal of this judgment but not in that part of the opinion which states that the court should have directed a verdict for the defendant. I cannot concede that the evidence is of such a nature, on the question of the contributory negligence of the deceased, as to have required such a ruling. The deceased was killed on a dangerous grade crossing, where several tracks of plaintiff in error crossed a public street. An ordinance required a flagman to be stationed there by plaintiff in. error. There was a flagman at the crossing, but he was south of thg freight train, which was standing across the street when deceased and his wife attempted to cross the tracks on this street, the flagman being in a position where he could not warn them of the approaching danger. The railroad company, in the running of its trains, is .required to use ordinary care and prudence to guard against injury to those who may be traveling upon the public highway, whether that be required by ordinance or statute. The fact that a statute or ordinance may only provide one precaution does not relieve “the company from adopting such others as public safety and common prudence may dictate.” (Chicago, Burlington and Quincy Railroad Co. v. Perkins, 125 Ill. 127.) The evidence is in conflict as to when deceased first discovered the train which caused his death. Counsel for plaintiff in error rely upon the testimony of two of its employees to show that deceased knew of such approach in time to avoid the danger. These two witnesses could not talk English. It is not at all clear to my mind that de-' ceased- understood the warning which they claimed they gave him as to the approach of the train. Furthermore, the testimony of these two witnesses' does not fully harmonize as to when and how the warning was given. On account of their lack of knowledge of the English language it is somewhat difficult to understand how they could be certain that they gave an effective warning to the deceased. The wife of the deceased contradicts their testimony upon this point. Contributory negligence is ordinarily a question of fact for the jury, and only becomes one of law when the undisputed evidence establishes that the accident resulted from the negligence of the injured party. If there be any difference of opinion on the question, so that reasonable minds will not arrive at the same conclusion, then it is a question of fact for the jury. (Chicago City Railway Co. v. Nelson, 215 Ill. 436; Chicago and Joliet Electric Railway Co. v. Wanic, 230 id. 530.) From all the facts and circumstances shown on this record I think the question of contributory negligence of the deceased was properly submitted to the jury.'

Farmer and Vickers, JJ.: We agree with the views expressed in the foregoing concurring opinion of Mr. Justice Carter.