The Mo. Furnace Co. v. Abend

• Citation: 107 Ill. 44,1883 WL 10265,47 Am.Rep. 425
• Parties: THE MISSOURI FURNACE COMPANYv.EDWARD ABEND.
• Decision Date: 16 June 1883
• Court: Supreme Court of Illinois

107 Ill. 44

1883 WL 10265 (Ill.)

47 Am.Rep. 425

THE MISSOURI FURNACE COMPANY

v.EDWARD ABEND.

Supreme Court of Illinois.

Filed at Mt. Vernon Jun. 16, 1883.

OPINION TEXT STARTS HERE

APPEAL from the Appellate Court for the Fourth District;--heard in that court on appeal from the Circuit Court of St. Clair county; the Hon. GEORGE W. WALL, Judge, presiding.

On the 21st day of February, 1880, Charles Castaine, since deceased, was in the employ of the Missouri Furnace Company, as engine-driver on the switch locomotive used by the company for moving cars in and about its yards. While thus employed on that day, he in some way fell from the locomotive, and was run over by it and killed. Afterwards the administrator of his estate brought this suit against the company to recover damages resulting to the widow and next of kin on account of the death of the intestate, which it is alleged was caused by the negligent conduct of defendant. Recitals in the declaration set forth the duty of defendant to keep the engine in suitable repair, and as a breach of that duty it is averred defendant permitted the engine to become and remain out of repair, and dangerous to the engine-driver. Among the principal defects that led to and caused the death of the intestate, it is averred the engine was so constructed it could not be oiled except when running; that it was out of repair, and dangerous to the employé, and that there were no platforms or other safeguards so as to protect such employé while engaged in oiling and running it; and that the foot-board in front of the engine was out of repair, and in an unsafe condition. It is also further alleged, that “on the 21st of February Charles Castaine was in the employ of defendant, and was engaged in running said engine on said railroad, as engineer, and that then and there he complained to said defendant, and notified it of the said defective and dangerous condition of said engine, and said defendant caused the said Charles Castaine to remain and continue in said employment by then and there promising him that said defects, including the repairing of said foot-board, would be speedily repaired and remedied; that defendant did not heed its duty in this respect, and failed and neglected to remedy said defects; and that on said 21st day of February, and while he was in the employ of defendant as engineer, and was engaged in running said engine, using due care and diligence, he was, in consequence of said defects, thrown with great force and violence from said engine, and was thereby then and there killed.” The names of the widow and children surviving the deceased are stated in the declaration, and it is then averred that in consequence of his death they were deprived of the support he had hitherto given them. A demurrer interposed to the amended declaration was overruled, and defendant pleaded the general issue, on which a trial was had, which resulted in a verdict for plaintiff, on which judgment was rendered. The first judgment for plaintiff was reversed, on defendant's appeal, by the Appellate Court. On the second trial plaintiff recovered a second verdict in the sum of $3000. The motion made for a new trial was overruled, and the court pronounced judgment on the verdict. This latter judgment, on the appeal of defendant, was affirmed in the Appellate Court for the Fourth District, and defendant brings the case to this court on its further appeal.

Messrs. G. & G. A. KOERNER, for the appellant.

Mr. JAMES M. DILL, for the appellee.

Mr. JUSTICE SCOTT delivered the opinion of the Court:

It is not insisted in this court, as was done in the courts below, that the verdict is against the weight of the evidence, nor is it expected this court will reëxamine the evidence on controverted questions of fact. It will be assumed that whatever the evidence tends to prove was found in favor of plaintiff, and that finding, under the Practice act, is, of course, conclusive on this court. It is said, however, there is an entire want of evidence to sustain the averment of the declaration that deceased “used due care and diligence” for his personal safety, and that this defect is fatal to the present recovery. No one saw the accident, but the evidence warrants the belief that deceased fell from the foot-board while in the act of oiling the engine when in motion, and was killed. The concession of counsel is, no doubt, correct, it does not always require positive proof of the exercise of due care and diligence. Under certain circumstances it may be taken for granted deceased observed usual and ordinary care for his personal safety. That is the case here. The testimony from all sources is, that deceased was a competent and careful engineer. There is some evidence tending to show the engine could not well be oiled, on account of its peculiar construction, except when in motion, and the jury must have so found. Had the foot-board been in order, there would have been no danger in so doing. It was the usual mode of oiling the engine. The deceased was seen, a few moments before his death, in the observance of due care. In the brief period that intervened it is unreasonable to believe he ceased to use that ordinary care that he had been accustomed to observe during the whole time he had been in the company's employ. All the circumstances tend to show the exercise of due care and caution on the part of deceased at the time of the accident, so that it is not accurate to say there was an entire want of evidence on this branch of the case. A similar objection was taken in Chicago, Burlington and Quincy R. R. Co. v. Gregory, 58 Ill. 272. In that case it was said: “Up to within a moment of the accident, he,” deceased, “was shown to have been in the exercise of due care in his proper place, and it would do violence to the facts in the case to presume that in the instant that intervened he was guilty of negligence, in the absence of proof of any circumstances that even tend to establish the fact of negligence.” No one in that case saw the accident, and no affirmative evidence was given as to what care the deceased observed. It was thought to have been made to appear from the circumstances attending the accident, and it was said it was immaterial how the fact was made to appear, so it did appear.

Passing on, the principal question made will be briefly considered. It is, whether deceased was, himself, guilty of such negligence by remaining in defendant's service after he knew the foot-board was in a dangerous condition, as will bar a recovery. The proof is, deceased notified the proper officers of the company whose duty it was to make and direct when repairs should be made, of the dangerous condition of the foot-board, and the averment is, defendant “caused the said Charles Castaine to remain and continue in said employment by then and there promising him that said defects, including the repairing of the foot-board, would be speedily repaired and remedied; that defendant did not heed its duty in this respect, and failed and neglected to remedy said defects.” There was evidence tending to sustain this averment in the...