1887 Momence, Kankakee Co, IL. Uncle Thomas Gundy mentioned in hisdi ary that he visited the Wm Nichols family there.
11/25/1887 Little Rock, AR. Apparent the family had moved as Thomasv isited William there, spending several days with him in cold rainyand i cy weather.
Details of William's death appeared in an Illinois Appellate courtcase :
Chicago & E.I.R.R. Co. v. Mark A. Nichols, Adm.
1. Ordinary Care - Absence of, Prevents a Recovery.--When a person ina b uggy, drawn by a horse driven by him, in approaching a railroadtrack i n front of a moving train, disregards the warnings of theflagman stati oned at the street crossing, attempts to beat the trainover the crossi ng and is killed, he takes the chances which theexercise of ordinary c are on his part would have avoided, and hispersonal representatives ca n not recover.
Trespass on the Case - Death from negligent act. Tried in the CircuitC ourt of Kankakee County; the Hon. John Sewall, Judge, presiding.Verdic t and judgment, $1,000, for the plaintiff. Appeal bydefendant. heard i n this court at the December term, 1897. Reversed,with a finding of f acts. Opinion filed February 28, 1898.
William R. Hunter, attorney for appellant; Thomas P. Bonfield, Esq, ofc ounsel.
E.P. Harney, attorney for appellee; Paddock & Cooper, of counsel.
Mr. Presiding Justice Crabtree Delivered the Opinion of the Court.
This was an action on the case to recover damages for the deathof a ppellee's intestate, William Nichols, deceased, who was killed byone o f appellant's train of cars, at the intersection of its railroadwith I ndiana street, in the city of Momence, Kankakee county, on July16, 189 6.
On the first trial of the cause, there was a disagreement of thej ury. On the second trial appellee recovered a verdict and judgmentfor $ 1,000, a motion for a new trial being overruled.
The declaration originally contained six counts, but a demurrerbe ing sustained to the first count, the cause was tried on theremaining f ive counts. The second, third and fourth chargednegligence in failing t o give the statutory signals and in runningthe train at a greater rate o f speed than that allowed by the cityordinance. The fifth count charg es that the defendant "carelesslyand improperly flagged the deceased u pon the crossing, and thenimproperly obstructed the passage of said cr ossing by hindering andattempting to stop the horse: drawing the buggy i n which deceased wasriding along and upon the public street, so that t he train ran uponand struck deceased and killed him. The sixth count i s similarexcept that it does not charge that the deceased was improper lyflagged upon the crossing.
The evidence taken upon the trial shows substantially thefollowin g state of facts:
Deceased was a man about seventy years old, living in the city ofM omence, but operating a farm some miles southeast of the city, whichhe v isited very frequently, and in doing so passed over theappellant's rai lroad tracks and his son, Mark A. Nichols, testifiesthat his father pa ssed over this same crossing where the accidentoccurred every day. Th ere were at the point in question six tracks,besides the "Y" track, wh ich run northeasterly across the highwayknown as Indiana street, which s treet runs east and west.
Appellant kept stationed at this crossing a flagman, who was ondu ty at the time of the accident. The evidence shows he knew thedecease d, and had frequently flagged and stopped him on formeroccasions when M r. Nichols was about to cross the tracks.
About three o'clock on the afternoon of July 16, 1896, thedecease d, driving a horse attached to a buggy in which he was riding,approach ed the railroad crossing at a sharp trot, just as one ofappellant's pa ssenger train was coming into the city of Momence fromthe south. The f lagman was at his post carrying a white flag, asprescribed by the rule s of the company, which he waved across thetrack as a signal for decea sed to stop, but the latter seems to havepaid no attention to the sign al and kept driving on toward thecrossing until he got within a few fe et of the flagman, who thencalled to the deceased to stop, but instead o f doing so he struck hishorse with a whip, turned in toward the north, m aking a circle aroundthe flagman, and undertaking to cross the track i n front of thetrain, was caught and killed.
The train appears to have been running at the rate of fifteen tot wenty miles an hour. No ordinance was put in evidence regulatingthe s peed of trains in the city of Momence. There was the usualconflict in t he evidence as to whether or not the statutory signalswere given, but w e thhink a preponderance of the evidence shows theservants of appellan t were not guilty of any negligence in this, thatthe signals were prop erly given by blowing the whistle and ringingthe bell as required by t he statute.
Much complaint is made by appellant as to the admission ofincompe tent evidence and the giving of erroneous instructions. Weare of the o pinion, however, that even were all the evidence heldcompetent, there i s still a failure on the part of appellee to provea cause of action. T he proof of any negligence on the part ofappellant is extremely unsati sfactory, while the want of due care onthe part of the deceased, and h is reckless disregard for his ownsafety, so clearly appears, that ther e can be no recovery. The flagsignals given by the flagman could not f ail to have attracted thenotice of the deceased had he paid the slight est attention, but thesehe utterly disregarded, as well as the order t o stop given when hewas only fifteen feet from the flagman. Had he ob eyed the oder hewould have been safe:but instead of doing so he whippe d up his horseand attempted to beat the train over the crossing. This i s but oneof many such instances where persons have come to their death b ytaking chances which ordinary care would have avoided. In such a case, if disaster comes, the law affords no remedy. In this case we failt o see what more appellant could have done to avoid the accident thanwa s done, and on the other hand the slightest care on the part ofdecease d would have saved his lfe. Under this view of the case wedeem it unn ecessary to discuss the alleged errors in admission ofevidence, or in t he giving and refusing instructions, except to saythat in our opinion t he instruction asked by appellant directing averdict in its favor shou d have been given.
We think the judgement must be reversed.
Finding of Facts to be Made a Part of Judgment.
We find as a fact that the death of deceased was not the resultof a ny negligent act or omission on the part of appellant or any ofits ser vants.
We further find as a fact, that the deceased came to his deathfro m an entire failure to exercise ordinary care on his own part, andan u tter diregard for his own safety."
