The Toledo v. Conroy

• Decision Date: 30 September 1871
• Citation: 61 Ill. 162,1871 WL 8220
• Court: Illinois Supreme Court
• Parties: THE TOLEDO, PEORIA & WARSAW RAILWAY CO.v.MICHAEL CONROY.

61 Ill. 162

1871 WL 8220 (Ill.)

THE TOLEDO, PEORIA & WARSAW RAILWAY CO.

v.MICHAEL CONROY.

Supreme Court of Illinois.

September Term, 1871.

APPEAL from the Circuit Court of Peoria county; the Hon. SABIN D. PUTERBAUGH, Judge, presiding.

Messrs. INGERSOLL & MCCUNE, for the appellant.

Mr. H. W. WELLS, for the appellee.

Mr. CHIEF JUSTICE LAWRENCE delivered the opinion of the Court:

This was an action in which the administrator of John Conroy recovered damages against a railway company for injuries received by him while in the employ of the company as a fireman, by the falling of a railway bridge. The evidence as to the condition of the bridge is contradictory and we shall not discuss it, as the case must go to another jury for error in the instructions. The third instruction given for the plaintiff was as follows:

“In this case, if the jury believe, from the evidence, that John Conroy was a fireman in the employ of the defendant, and was in the line of his duty on an engine crossing the bridge in question, and if they further believe, from the evidence, that the timbers of the bridge were decayed and unsafe, and for that reason broke down, and that the death of John Conroy was occasioned by injuries received by the breaking of said bridge, and that the said John Conroy left next of kin, then the defendants are liable, and the jury should find for the plaintiff.”

This instruction would make the company liable for injuries resulting from a defective bridge, independently of the question whether the agents of the company had notice of the defects, or might have had knowledge of them by the exercise of the highest degree of diligence consistent with the operation of the road. This instruction was, in this respect, erroneous. The rule is settled that, while a railway is bound to use the degree of diligence just stated in furnishing to the public a safe road-bed, yet it is not an absolute insurer, and can not be held liable for defects of which such diligence would not inform it. Actual knowledge of the defect is not necessary. It is sufficient if the company might have been informed by the use of such diligence as the law imposes upon it, but where it did not know and could not have informed itself of the defect, we do not see how it can be held responsible. In this case, the question was as to the soundness of bridge timbers, and it was clearly important that the instruction should be qualified in the manner indicated. Some of the...