Chicago & Alton Railroad Company v. Pondrom

CHICAGO & ALTON RAILROAD COMPANY, appellant, v PONDROM.

(51 Ill. 833.)

Railroads-Negligence-Injury to arm projecting from window.

The plaintiff, while traveling in defendants' railroad car, permitted his arm to rest on the window-sill and slightly project outside, whereby his arm was broken by coming in contact with a freight car standing near the track. Held, that the negligence of the defendants was gross in comparison with the plaintiff's, and that the latter could recover.

THE appellee was a traveler on appellants' road, from Bloomington to Chicago. While en route through the latter city, the appellee's arm was broken by coming in contact with one of the cars of a freight train standing near the track. The arm was at the time resting on the base of the window, but the evidence was not conclusive as to whether or not it projected beyond, and outside. The appellee swore that it did not, but that it was caught by some projection from the car.

WALKER, J. (after stating the facts, and commenting on the evidence as to the position of the arm, continued):

While at most we may, with the facts we have before us, be able to do no more than to arrive at a reasonable conclusion, still it appears to us that the most natural and probable theory is, that appellee had his elbow resting on the window sill, with his arm extending outward and upward, and, in passing the rear end of the freight train, it was so near the passenger car that his wrist came in contact with the corner of the rear car; and if the speed was sufficiently rapid, the force would be so great that the arm would not be readily withdrawn, and as the pressure increased it would not only force the arm back until it was broken, but it would render the slipping of the arm so difficult, that as it dragged past, it would most likely produce rents in the sleeve, at the place and of the shape found to have been made in the coat sleeve. This, we think, was the manner in which the injury most probably occurred. This, to us, seems reasonable and satisfactory.

The question then arises, whether, having the arm casually outside of the car in that manner was negligence, and if so, was there greater negligence in the company in permitting its freight cars to

Chicago & Alton Railroad Company v. Pondrom.

stand so near the track as to produce the injury in the manner we suppose it occurred; and if both parties were guilty of negligence, was that of appellee relatively slight when compared with that of appellant? For a passenger to allow his arm to rest on the window sill and slightly project beyond the outside surface of the car may be, in scme degree, negligence, but observation teaches that to do so is not uncommon with passengers. It is frequently done through inadvertence, and, when done intentionally, it is upon the supposition that all railway companies have their track free from obstructions, and that they permit nothing to remain so near to the track as would render it dangerous to permit the hand to pass a few inches beyond the outside of a car window.

We have been referred to a number of cases in other courts, and the earlier cases decided in this court, as announcing the rule, that where there is contributory negligence, the plaintiff cannot recover. The established doctrine of this court is, that where the negligence of the plaintiff is slight as compared with that of the defendant, a recovery may nevertheless be had. We are fully aware this is apparently opposed to the decisions of some courts, but it is more apparent than real, as recoveries are permitted in those courts where acts of the plaintiff should be regarded as slightly negligent, not equal to ordinary care; and by requiring the greatest possible precaution on the part of the carrier.

In the case of Spencer v. The Milwaukee & Prairie du Chien R. R. Co., 17 Wis. 487, a case very similar in all of its material facts to the case at bar, the court say:

"When we consider the manner in which railroad cars are usually constructed-with windows so that they can be opened, and arranged at a sufficient height from the seat so that passengers will almost unconsciously place their arms upon the sill for support-there being no bars or slats before the window to prevent their doing so -then to say that if a passenger's arm extends the slightest degree beyond the outside surface, he is wanting in proper care and attention, and if an injury happens he cannot recover, because his conduct must have necessarily contributed to the result, appears to us to be laying down a very arbitrary and unreasonable rule of law.

"It is probably the habit of every person, while riding in the cars, to rest the arm upon the base of the window. If the window is open, it is liable to extend slightly outside. This we suppose is common habit.

Chicago & Alton Railroad Company v. Pondrum.

"There is always more or less space between the outside of the car and any structure erected by the side of the track, and must necessarily be so, to accommodate the motion of the car.

"Passengers know this, and regulate their conduct accordingly: they do not suppose that the agents and managers of the road suffer obstacles to be so placed as to barely miss the car while passing. And it seems to us almost absurd to hold that in every case, and under all circumstances, if the party injured had his arm the smallest fraction of an inch beyond the outside surface, he was wanting in ordinary care and prudence."

In the case of Laing v. Colder et al., 8 Penn. St. 479, it was held, that a person traveling on a railroad car, who permitted his hand to extend outside of the window, and thereby had his arm broken in passing a bridge, could not recover if the agents of the company had given timely notice of the danger which the plaintiff might have avoided. It will be observed, that this case turns upon the fact that notice had been given to the passengers not to put his hand outside of the window. Had the notice not been given, we may infer the court would have held the company liable.

In the case of The New Jersey Railway Co. v. Kinard, 9 Harris 203, the same court say, that "A carrier of either goods or passengers is bound to provide a carriage or vehicle, periect in all its parts; in default of which he becomes liable for any loss or injury that nray be suffered, provided it happen without negligence or misconduct on the part of the party injured. A carrier of passengers is bound to omit no precaution that may conduce to their safety. He is bound to guard against every apparent danger that may beset them. The dangers incident to traveling in railway cars are few in comparison with those incident to other modes of travel; but the most prominent of them is the risk of injury to limbs stuck out of windows, where the cars are not so constructed as to prevent it. Any one who has traveled by railway must have observed that even the most careful passengers forget the risk, and unconsciously suffer their elbows to slip out beyond the window sill. What can a carrier do to prevent it? No more is required than a few metallic rods set in the windows perpendicularly or horizontally, or a netting of wire work, or even wooden slats. None of these would materially impede the circulation of the air, or abridge the comfort of the passengers, while it would make their safety sure. A car without any of these appliances is, to coin a phrase, not road-worthy, and a car

Chicago & Alton Railroad Company v. Pondrom.

rier is responsible for any loss that may happen from that cause alone. Risking his passengers in an unsafe car, it behooves him to use every means in his power to guard against danger from it at dangerous places, by audibly proclaiming in the car the necessity of keeping arms and heads inside. Should any one disregard such warning, he would incur the charge of willful neglect of his own safety, and where there is negligence on both sides, neither party is answerable for any injury from it."

We are aware that this last case has been overruled by the case of The Pittsburg and Connelsville Railroad Co. v. McClurg, Law Reg. for March, 1868. But we think the former case the better considered of the two, and to be based on sounder reasons and more in harmony with the analogies of the law, and entitled to more weight.

But even if it were to be conceded that it was negligence on the part of appellee to have had his arm outside of the car window, should he be precluded from a recovery? Was it negligence on the part of the railway company to permit cars or other heavy or permanent bodies to stand so near their track that cars in motion must

pass within a few inches of such bodies? We suppose it to be a clear and undeniable duty of a rail vay company to keep its track clear of such obstructions, and a failure to do so is gross negligence. With such objects so nearly in contact with cars running at a high rate of speed, life must necessarily be greatly endangered; and when such negligence as appellee may have been guilty of is compared with the negligence of permitting a freight train to stand so near the track of a passenger train as to produce the injury which did occur, the former is slight and the latter is gross. And it has long been the settled law of this court in such cases to compare the negligence of both parties, and even if the plaintiff is guilty of nligence which is slight, as compared with that of the defendant, Le may recover. Galena and Chicago Union R. R. Co. v. Jacobs, 20 l. 478; Chicago and Rock Island R. R. Co. v. Still, 19 id. 499; St. Louis and Alton R. R. Co. v. Todd, 36 id. 409; Chicago and Alton R. R. Co. v. Hogarth, 38 id. 370. These cases, besides a large number of others in our court, announce the rule, and notwithstanding other courts have adopted and acted upon a different rule, we regard it as firmly established in this state.

But even under the ordinary rule there are authorities of weight which would justify us in holding that the protrusion of appellee's hand thronga ta car window was not negligence, and that permit

Lantry v. Lantry.

ting the freight cars to stand so near the track for the passenger cars was gross negligence. In the case of Spencer v. The Milwaukes and Prairie du Chien Railroad Co., 17 Wis. 493, it was held, where a passenger, while the train was passing over a bridge, had his hand outside of the car window, and it came in contact with a brace in the bridge, which had become loosened and dropped downward, and the hand was injured, there was not negligence on the part of the plaintiff, while there was on the part of the company.

An examination of the instructions given in this case shows that the rules announced and applied by this court, in reference to negligence, were fairly stated to the jury, and could not have misled them; and the evidence sustains the verdict.

The verdict found and returned by the jury was, no doubt, excessive, but the court below required appellee to remit all but $2,500, or he would grant a new trial. This appellee did, and the court rendered judgment for that sum. While the verdict, after the remittitur was entered, was still large, we are not prepared to say that it is so far excessive as to require the judgment to be reversed. It is not so large as to strike us that it could only be the result of passion, prejudice or mistake.

The judgment of the court below is affirmed.

Judgment affirmed.

LANTRY, appellant, v. LANTRY.

(51 Ill. 458.)

Statutes of Fraud - Trust by parol.

If A. voluntarily conveys land to B., the latter having taken no measures tc procure the conveyance, but accepting it, and verbally promising to hold the property in trust for C., the case falls within the provision of the statute of frauds requiring trusts to be expressed in writing, and a court of equity will not enforce the parol promise.

THIS was a suit in chancery brought by Bernard M. Lantry, the appellee, to enforce an alleged parol trust.

Bushnell & Avery, for appellant.

0. C. Gray, for appellee.