West Chicago St. R. Co. v. Dwyer

• Decision Date: 12 May 1896
• Citation: 162 Ill. 482,44 N.E. 815
• Parties: WEST CHICAGO ST. R. CO. v. DWYER.
• Court: Illinois Supreme Court

162 Ill. 482

44 N.E. 815

WEST CHICAGO ST. R. CO.

v.DWYER.¹

Supreme Court of Illinois.

May 12, 1896.

Appeal from appellate court, First district.

Action by John Dwyer against the West Chicago Street-Railroad Company for personal injuries. From a judgment of the appellate court (57 Ill. App. 440) affirming a judgment for plaintiff, defendant appeals. Affirmed.E. Jamieson, V. V. Veeder, and E. Furtherman, for appellant.

Barnum, Humphrey & Barnum, for appellee.

The following is from the opinion of the appellate court rendered in this case:

‘The appellee was a gripman in the employ of the appellant on the Madison Street line of its cable road in Chicago, and was injured while engaged in the performance of his duties as such gripman, on April 20, 1891. He had been in the service of the appellant since 1885 as a driver, until the cable system was put in operation, in 1890, and afterwards as a gripman. On the day of the injury, as he was operating his train, consisting of a grip car and one trailer, around the loop extending through various streets from the east end of the Washington Street tunnel under the river, and back to the tunnel, he observed, when going west on Randolph street, near Fifth avenue, that something was dragging under the grip car, and he stopped his train. Until he stopped he did not know what the trouble was, but then, looking, he discovered that one of the slide bars, which was an iron plate or beam fastened to and underneath the car, was loose, and so told the conductor. After consulting with the conductor, appellee decided to proceed gently with his train to a point a block or two distant, where, at or just before the entrance to the tunnel was reached, a man named Smith, known as a ‘starter’ for the appellant, was stationed, and he did so. When the train arrived near to where Smith was stationed, it was stopped, and he was called by the appellee. According to the testimony of the appellee, he told Smith that the slide bar was loose and had dropped down, and that Smith ordered him to pull ahead to a manhole, and sent a man to open the manhole and go underneath to examine the car when it should arrive in place, and that he (Smith) then called, by electric signals at his command, a wrecking wagon and crew belonging to appellant, and in its employ; that the wagon and crew arrived, and the grip machinery, already partly raised, was hoisted up and suspended to a hook in the roof of the grip car; and that, after the crew had got through with their work, Smith ordered a grip car which had followed with another train behind the train in question to be hitched to the trailer of appellee's train, and to proceed, pushing his grip car and trailer ahead, through the tunnel; that the grip machinery, which had been suspended within the grip car, was hanging loose, and liable to swing so as to injure passengers on the grip car; and that Smith ordered appellee to take hold of it to keep it steady. Smith denied that he gave any order to appellee, and denied that he had any authority to give orders of any kind in cases of broken machinery, but says that, when appellee came along with his train, appellee told him that his grip was out of order, and asked him (Smith) to call the wrecking wagon, which he did, but that, beyond doing that, he exercised no authority or direction whatever in the matter. He does, however, testify that he coupled the train that came up in the rear to the trailer of appellee's train. Just how extensive Smith's authority was, as a starter, is a matter concerning which there is considerable conflict in the evidence. It is not disputed but that he wore a uniform, and a badge with the word ‘Starter’ on it, and was accustomed to giving orders to trainmen as they approached the tunnel, and his orders were accustomed to obedience, nor but that he was authorized to ‘space’ the distance between trains, in order that they should not be run too close together in the tunnel, and, to that end, that he had authority to stop and start trains, and to control gripmen and conductors in that matter. Beyond that, it cannot be said with certainty what his authority, if any, extended to, although it is clear that he was actively engaged, as was probably his duty, in hastening such repairs as would enable the road to be cleared so that following trains might proceed on their route. It was admitted that the wrecking wagon and crew were kept steadily in the employ of the appellant, and, if not clearly proved, it must be presumed from the evidence that the crew were capable mechanics, possessing all the qualifications necessary to repair disabled trains, to the extent, at least, of permitting them to cease being obstructions to the operation of the road, and to be reasonably safe for use. Whether because of his duty, under the rules of the appellant, to remain in his appropriate place on his grip car until the end of the route had been reached, or because of the order of Smith to stand in his box and steady the suspecnded grip machinery, the appellee did in fact resume his position in his usual box on the car, and stand there, in the act of steadying the hanging grip machinery, while his train was being pushed through the tunnel. Thus standing and holding the grip machinery, and as the train was proceeding out of the western end of the tunnel, the appellee again observed the same sound of something underneath the car grating against or dragging over the iron covers to the manholes between the tracks; and, while his attention was being directed towards ascertaining what the trouble was, a sudden jerk or jar was given to the car, and the handle to the track brake, which was in its proper place, suddenly flew back and struck him in the forehead, occasioning the injury for which the judgment complained of was recovered. This brake handle, when perpendicular, reached four feet five and one-half inches above the floor of the car, and was of iron. Immediately after the injury the train was stopped, and another examination of the grip car was made, and one of the slide bars was found to be out of place and down. The slide bar was then chained up, and the train proceeded on its route without further incident. It is not clear in just what manner the slide bar, being loose, could have caused the brake to fly from its place in the direction of appellee; but, from all the evidence, it is impossible to discover any other cause for it, and it is fairly established by the evidence that the loose slide bar, when hanging down, caught against the iron cover of a manhole, and was in some manner thrown against the track brake, which in turn caused its handle to fly back and hit appellee.

‘Now, it is established that the appellant, as an employer, was bound to use ordinary care to furnish to appellee, its employé, reasonably safe machinery and appliances, and a reasonably safe place to work in. Libby v. Scherman, 146 Ill. 540, 34 N. E. 801. Had the injury occurred during the passage of the train over the two or three blocks between the point where appellee first discovered that the slide bar was loose, and the point where Smith was stationed, and to which the wrecking crew was called, quite a different question would have arisen. It might then well have been held that appellee, knowing of the defect, assumed the risk of a further operation of his train. We are inclined to think, from all the evidence, that Smith's authority extended so so far as, after a defective car had been disclosed to him, to subject the trainmen as to its further operation through the tunnel to his direction. All trainmen, and appellee in particular, had always been in the habit of obeying his orders as to when to stop and when to move ahead; and it was his duty to give orders in such matters, and it was the duty of trainmen to obey him. It would seem to be unreasonable to hold that, having such authority, and a disclosed defect having been made known to him, and he having taken steps to have the defect remedied, employés accustomed to receive and obey orders from him should be at liberty to question his authority concerning further proceeding through the tunnel. The fact that it was his duty to stop and start trains, so that collisions and other obstructions in the tunnel might be avoided, would seem to imply authority to stop or advance disabled trains, at his discretion, in order to avoid like results from causes besides those incident to the running of trains too close together. We do not regard it as material whether Smith actually uttered the order to appellee to proceed or not. There seems to be the greater weight of evidence that he did actually give appellee a verbal order to take his place in his grip car, and go on with the train; but, if he did not speak the words, he exercised equivalent directions. He himself testified that he coupled the trailer of appellee's train to the grip car that was...