Chicago & Alton Railroad v. Hogarth

Citations

• 38 Ill. 370

Syllabus

<p>1. Negligence—on the part of railroad companies—what constitutes—and herein of mutual negligence. As a railroad train rounded a curve in the road in the City of Chicago, a heavily loaded wagon, with horses attached, was in plain view but a few hundred feet distant, stationary across the track. When the engine driver first saw the wagon he observed there was no one near it, and he must have remarked, from its appearance, it was a loaded wagon. He saw the wagon in time to have avoided a collision by stopping the train, but did not attempt to do so until it was too late, supposing the wagon would be removed. The wagon, however, was stalled, and could not be removed in time to avoid a collision, and the train ran into it, injuring the wagon and horses attached to it. It was held, in an action against the railroad company to recover for the injury, to be culpable negligence on the part of the engine driver, in view of the possible disastrous consequences to life and property, to act upon the hypothesis that the wagon might, in some mode, be got out of his way, instead of using the certain means within his own control to prevent a collision.</p> <p>2. Nor could it be said the driver of the team was guilty of an equal degree of negligence with that of the engineer, because he sought the means which an ordinarily prudent man would under like circumstances, to extricate his wagon, instead of going round the curve to attempt to stop by signals any train that might be approaching. The driver of the team, under such circumstances, was not chargeable with notice that a train was due when his wagon stalled.</p> <p>3. The servants of the company were bound to use diligence and caution even before they became aware that the wagon was stalled. As soon as the wagon was discovered stationary upon the track, at a distance which would be passed over in about one minute, they should have used all the means in their power to prevent the imminent collision, whether they knew it to be st