#### Chicago, St. P. & K. C. R. Co. v. James Ryan.

1. *Pleadings—When Not Presenting Facts for the Determination of a*Jury.—In an action for personal injuries the plaintiff amended his declaration by filing an additional count; the defendant filed a plea of the statute of limitation, stating that the cause of action set up in the additional count was for another and different cause of action than that set up in the original declaration, and did not accrue within two years, etc.; upon a demurrer to the plea, it was held proper for the court below *265upon examination of such counts to determine whether the cause of action set up in the additional count was the same as that set up in the original declaration, or other and different.

2. *Railroads—Duty Toward*Strangers.—A railroad company is not bound to exercise the highest diligence to insure the safety of strangers, but it can not be reckless as regards the welfare of those with whom it may come into contact.

3. *Same—Negligence in Running Trains Past*Stations.—A person about to take a railroad train at a station, and being compelled in doing so to cross the track of another road, has a right to suppose that such other road will observe its own rules in relation to the speed of trains, etc., in passing stations where other trains are waiting for passengers, and such company failing to do so, is guilty of negligence and hable for injuries resulting therefrom.

4. *Same—Duty to Persons Grossing Their Tracks at*Stations.—As the stations and tracks of railroads are constructed in this country, it is impossible in many cases for passengers to do otherwise than to cross railroad tracks, and it is the duty of the companies to so govern the movement of their trains as not to endanger the lives of those who may have occasion to cross such tracks.

5. *Negligence—Speed of Trains Past*Stations.—Running a passenger train at the rate of twenty-five miles an hour past a station where another train is waiting to receive passengers is dangerous to persons who may be crossing the tracks to take the waiting train, and is negligence on the part of the company whose servants are in charge of the moving train.

6. Ordinary *Care—The Term*Defined.—Ordinary care is such care as reasonably prudent and cautious persons exercise under like circumstances.

Trespass on the Case, for personal injuries. Appeal from the Circuit Ch-cuit of Cook County; the Hon. Edward F. Dunne, Judge, presiding. Heard in this court at the October term, 1895.

Affirmed.

Opinion filed January 22, 1896.

Statement of the Case.

On and prior to August 3,1891, the''Chicago and Northern Pacific Railroad Company owned and operated a terminal railroad extending to a point west of the city limits of the city of Chicago, east across Ashland and Ogden avenues to Harrison street and Fifth avenue, in said city. This railroad and the terminal facilities connected therewith, were under the exclusive control of the Chicago and Northern Pacific Railroad Company.

*266The Northern Pacific company arranged the time table for running all trains and fixed the rules and regulations under which all trains operated on said road were run.

The Chicago, St. Paul and Kansas City Eailway Company, prior to August 3, 1891, had obtained a lease from said Northern Pacific company, under which it had the privilege of operating its trains between an intersection with said railroad west of said city to the Harrison street depot. Its trains were operated upon a time table furnished it by the Northern Pacific company, and also under certain rules, and under a block system established on said railroad. On the 3d day of August, 1891, the Northern Pacific company was operating a train, which was due at Ogden avenue station to take on suburban passengers at 4:29 o’clock p. m. It was, however, five minutes behind time, and did not reach said station until thirty-four minutes after four o’clock, and was either just stopping or had just come to a stop, when the accident happened to plaintiff, as complained of in this case.

The plaintiff had reached the station at 4:29 p. m. before the arrival of the last-named train that day, purchased a ticket for the said Northern Pacific train, and then went in a southwesterly direction, proceeding toward the rear of the train for the purpose of taking the rear car of such train.

The train of the Kansas City company had left the Harrison street depot on that day at the time fixed in the time table of said Northern Pacific company, namely, 4:20 o’clock p. m. The train was run upon the time fixed in said time table, and was due to pass the Ogden avenue station on said railroad at 4:34 o’clock p. m. The movement of trains approaching Ogden avenue station was controlled and directed by a block signal station, that east of the station being located about three hundred and eighty feet east of the Ogden avenue station. The railroad makes a rapid curve after leaving Ogden avenue station, going west under the viaduct on Ogdén avenue, and a train coming from the west could not be seen at a distance of more than *267150 feet west of Ogden avenue station. When the Kansas City train reached the block signal station, east of said Cgden avenue station, the signals displayed were two; one notified that the track was clear, that there was no obstruction, and to proceed at full speed, and the other notified it that the depot was unoccupied.

The engine of this train met the engine of the Northern Pacific train at a point immediately opposite the center of the Ogden avenue station. The plaintiff, in going to the Northern Pacific train, was facing southwest, and away from the Kansas City train. He stepped upon the north track when the Kansas City train was right upon him. The engineer did all that he could to stop the engine, but the plaintiff was struck and thrown against the Northern Pacific train and injured.

The plaintiff testified that he was familiar with the locality, that he used the trains from that depot from two to four times a day. He also testified that he knew the Kansas City train which struck him passed there every day about the same time, and that it passed without stopping.

The defendant filed pleas of the general issue and tp the additional counts, filed more than two years after the accident, pleas of the statute of limitations. The pleas of the statute of limitations each contained the allegation that the causes of action set up in the additional counts were other and different than those set forth in the declaration originally filed. Demurrers to the pleas of the statute of limitations were sustained. Upon the trial the cause was dismissed as to the Northern Pacific Ry. Co., a verdict being rendered against appellant, upon which there was judgment for $6,000.

Gardner & McFadon, attorneys for appellant.

Duncan *&*Gilbert, attorneys for appellee.

Mr Justice Waterman

delivered the opinion of the Court.

It is insisted that the demurrer to the pleas of the statute *268of limitations was improperly sustained, and that the defendant was entitled to have the question of whether the cause of action set up in the additional counts was other and different from that set up in the declaration first filed, tried by a jury; because, as is urged, the allegation that the said causes of action were other and different from those set up in the declaration first filed, presented a question of fact for the determination of a jury.

A party can not, by his pleading, determine the character of his adversary’s pleas. Nor is the construction of pleadings a thing to be submitted to a jury.

The various counts of plaintiff’s declaration were before the court, and it was for the court, upon an examination of such counts, to decide whether the cause of action set up in the additional counts was the same as that set forth in the declaration first filed, or other and different.

In the case of Phelps v. Ill. Cent. R. R. Co., 94 Ill. 555, 4 Ill. App. 238-243, it does appear that the plea of the statute of limitations contains the allegation relied upon here, and that a demurrer to such plea was wrongly sustained, but there is no intimation that it was because such allegation was in the plea, that the demurrer thereto should have been overruled; on the contrary, the reason for the decision is not that a jury should have been allowed to determine as to the truthfulness of such allegation, but because, as the Appellate and Supreme Courts each find, the cause of action set up in the new counts was other and different from that declared upon it in the first count.

We think that the court below properly held in this case, that the cause of action set up in the additional counts was the same as that set forth in the declaration first filed. Each count appears upon its face to be but a different way of stating the cause of action originally declared upon.

The demurrer to the pleas of the statute of limitations was therefore properly sustained. Dickinson v. C., B. & Q. R. R. Co., 81 Ill. 215; Mitchell v. Milholland, 106 Ill. 175; North Chi. Rolling Mill Co. v. Monka, 107 Ill. 340; Blanchard v. L. S. *&*M. S. Ry. Co., 126 Ill. 416; Stearns v. Richy, 33 *269Ill. App. 246; Fish v. Farwell, 54 Ill. App. 457; Swift *&*Co. v. Foster, Adams & Co., 55 Ill. App. 2S0; I. C. R. R. Co. v. Campbell, 58 Ill. App. 277.

It is true that appellee did not sustain to appellant the relation of a passenger; it was not bound to exercise the highest diligence to insure his safety. His right to go where he was proceeding, and to be where he stood when struck, was certainly the equal of that of appellant. All the world, cor-: porations and individuals, owe a duty to strangers. Ho one can be reckless as regards the welfare of any with whom he may be brought into contact. Although the running arrangements for trains upon this road may have been made by the Northern Pacific Ry. Co., yet appellant was a voluntary agent in acceding thereto.

For reasons satisfactory to itself, it ran its train as it did at the time of the accident.

Appellant knew that for its train, while running at a rate of twenty-five miles an hour, to pass at a station a train there waiting to receive passengers, was very dangerous to persons who might be crossing appellant’s tracks to go to the waiting train. It knew that due regard for the rights and safety of intending passengers of the Northern Pacific Ry. Co. required that its stations should be approached and passed with care.

The engineer of appellant’s train, seeing the Horthern Pacific train waiting at the station, had notice that persons were quite likely at such time to be crossing the tracks, as passengers were compelled to do in order to go to and from the trains of the Horthern Pacific.

Appellant at some time seems to have recognized these things by one of its rules in force at the time of the accident, which was as follows :

> “ Trains on double tracks, moving in either direction, must not under any circumstances pass a station without stopping, at which a passenger train from an opposite direction is standing, receiving or discharging passengers. In approaching stations where a passenger train is due or past due, where the view is not clear, trains must be under perfect *270control, so as to stop if necessary before arriving <xt the station. ' The speed of trains must be so regulated that when passenger trains áre on time they will meet between stations on double tracks.”

Had this rule been obeyed, the accident would not have happened.

Was appellee exercising ordinary care?

He had a right to suppose that appellant would substantially observe its own rule, above set forth; not that appellee knew of the existence of such rule, but that it is merely a statement of what a fair regard for the rights of those having occasion to go to or from the passenger trains of the Horthern Pacific road required.

There was a curve in the tracks near the place of the accident, so that we are unable to tell from the evidence at what distance in the direction appellant’s train was coming, appellee could see the approaching engine; he says that he did not see it. Ordinary care is such care as reasonably prudent and cautious persons exercise under like circumstances. C. & St. L. R. R. Co. v. Hutchinson, 120 Ill. 587; C. *&*A. Ry. Co. v. Adler, 129 Ill. 340.

Eeasonably prudent people do frequently and habitually cross railroad tracks to go to a passenger train, waiting at a station to receive passengers. The reasonably prudent and cautious person does not always take care to have knowledge of, and bear in mind, the times at which the trains of roads he is not accustomed to use pass the stations of the road which he does make use of.

The ordinarily prudent person does, perhaps, look ere he cross any railroad track to see that no train is approaching upon it; but in the present case it does not appear that it was because of a failure to so look that appellee was injured.

As the stations and tracks of railroads are constructed in this country, it is impossible in many cases for passengers to do otherwise than cross railroad tracks. Such was the case at Ogden avenue. Such was .known to appellant, and it was its duty to so govern the movement of its trains as *271not to endanger the life of all who had occasion to cross, at this point, the tracks which it made use of.

The jury was fairly instructed, and the judgment is not for an excessive amount; it is therefore affirmed.