Joliet, A.&N. RY. Co. v. Velie

• Decision Date: 30 March 1891
• Citation: 26 N.E. 1086
• Court: Illinois Supreme Court
• Parties: JOLIET, A. & N. RY. CO. v. VELIE.

26 N.E. 1086

JOLIET, A. & N. RY. CO.

v.VELIE.

Supreme Court of Illinois.

March 30, 1891.

Appeal from appellate court, second district.

Williams, Holt & Wheeler, for appellant.

A. J. Hopkins, N. J. Aldrich, and F. H. Thatcher, for appellee.

MAGRUDER, J.

This is an action on the case, begun on April 23, 1888, by the appellee against the appellant company in the circuit court of Kane county, to recover damages for a personal injury. The plea was not guilty. The first trial resulted in a verdict in favor of the plaintiff for $15,000. A new trial was granted. The second trial has resulted in verdict and judgment in favor of the plaintiff for $14,000. This judgment has been affirmed by the appellate court, and the judgment of the latter court is brought here for review by appeal. The railroad of the defendant runs from Aurora to Joliet, and is only 24 miles long. The plaintiff entered the service of the defendant as conductor on August 17, 1886, and continued in such position from that time until April 22, 1887, when he was injured. The defendant had only one track between Aurora and Joliet, with two side tracks, one on each side of the main track, at the intermediate town of Plainfield. These side tracks were for switching purposes, and cars were left upon them to be loaded or unloaded. The company had only one locomotive and one car; the latter a combination passenger and baggage car. It had no freight cars of its own. Besides the local passenger traffic, its business was to haul freight cars for other roads between the two termini. Its switching at Joliet was done for it by the Chicago & Alton Railroad Company. The cars were switched onto its track at Joliet from the different roads centering there, and hauled by it to Aurora, where they were unloaded, and then taken back to Joliet. The company had no turn-table at Aurora, and the engine was obliged to ‘back up’ either from Aurora to Joliet, or from Joliet to Aurora. Some switching was usually done at Plainfield for the purpose of rearranging the cars. The road was a new one, and when plaintiff began his service the ballasting and surfacing of the road were not yet finished, although the track was laid. The only men on the train besides the plaintiff were a fireman, an engineer, and an inexperienced person acting as brakeman. On the day of the accident the plaintiff started from Aurora with two or three freight-cars, the ‘nose,’ or pilot, of the engine being attached to the forward car. When the train reached Plainfield the freight-cars were backed upon one of the side tracks, and the plaintiff attempted to uncouple the forward car from the engine. The hand-rail upon the end of the freight-car was mashed in against the car, so that the plaintiff, when step ping between the car and the engine to do the uncoupling, was unable to take hold of the rail, and fell forward, and was thrown under the engine. One of his legs was mangled and cut off. His ribs were torn from the breast bone. Internal injuries were received, and his nervous system has been completely shattered. The car whose hand-rail was thus defective came from the Santa Fe road at Joliet to the road of the defendant. Before the accident it had been hauled from Joliet to Aurora, and, after remaining at the latter place for some time to be unloaded, was on its way back to Joliet when the plaintiff was injured. The declaration alleges, among other things, that it was the duty of the defendant to have upon the end of each of the cars in the train a hand-rail in good repair, to reasonably protect the plaintiff and its other employes in coupling and uncoupling the cars with and from each other and the engine; also that it was its duty to furnish on said day a sufficient number of brakemen to run and operate the train, so as not to unnecessarily or unreasonably expose the plaintiff to any hazard in performing his duties; also that defendant was required, in the exercise of its reasonable care, to furnish one or more employes to inspect the cars received by it to be transported by it over its road, and see, before they were permitted to be run over its road, that they were provided with proper appliances for attaching the same to other cars, and such appliances as would protect plaintiff and its other employes from unreasonable danger or hazard in handling or operating said cars over the road, and in detaching the same, and in switching the same upon side tracks at intermediate points.

After the plaintiff had introduced his evidence and rested, the defendant moved to exclude the plaintiff's evidence. This motion was overruled, and exception was taken. The action of the court in overruling the motion is the only error insisted upon by counsel for appellant. No complaint is made of any instruction given or of any instruction refused, nor is any objection made to the admission or exclusion of evidence, except so far as such objection is involved in the exception to the denial of the general motion to exclude. It is not claimed that the plaintiff was not in the exercise of ordinary care when the accident occurred, not is it denied that the defendant was guilty of negligence. The position of the appellant is that, whatever defects existed in the appliances which it made use of, or whatever defects existed in its modes of doing business, or in the methods adopted by it for the operation of its road, were known to the plaintiff, and therefore he cannot sustain an action for any injury resulting from such defects, inasmuch as he continued in defendant's service after acquiring such knowledge. In other words, the appellant invokes the well-known rule that, where an employe undertakes a dangerous service with knowledge of the danger, or continues therein after he has learned of the danger, he will be held to have voluntarily assumed all the risks of the employment, and to be without remedy if he suffers injury. A motion to exclude the evidence operates as a demurrer to the evidence. Where the defendant demurs to the plaintiff's evidence he must be held to admit not only all that the plaintiff's testimony proves, but all that it tends to prove. The demurrer not only admits the truth of the testimony demurred to, but all the conclusions of fact which a jury may fairly draw from the testimony. The testimony is to be taken most strongly against the party demurring, and whatever inferences a jury would be entitled to draw the court ought to draw. Whatever the evidence ‘legally may conduce to prove’ is admitted. The object of the demurrer is to refer to the court the law arising from facts. Nothing remains but for the court to apply the law to the admitted facts. The court cannot in vestigate the facts in dispute, or weigh the force of testimony; that is the...