Illinois Cent. R. Co. v. Atwell

• Decision Date: 25 October 1902
• Citation: 64 N.E. 1095,198 Ill. 200
• Parties: ILLINOIS CENT. R. CO. v. ATWELL.
• Court: Illinois Supreme Court

198 Ill. 200

64 N.E. 1095

ILLINOIS CENT. R. CO.

v.ATWELL.

Supreme Court of Illinois.

Oct. 25, 1902.

Appeal from appellate court, Fourth district.

Action by Laura Atwell, administratrix, against the Illinois Central Railroad Company. From a judgment of the court of appeals (100 Ill. App. 513) affirming a judgment for plaintiff, defendant appeals. Affirmed.

W. W. Barr and J. M. Dickinson, for appellant.

Wm. A. Schwartz and Andrew S. Caldwell, for appellee.

CARTWRIGHT, J.

The appellate court for the Fourth district affirmed a judgment recovered by appellee, as administratrix of the estate of George Atwell, deceased, against appellant, in the circuit court of Jackson county, for pecuniary damages resulting to the widow and next of kin from the death of said George Atwell, which was alleged to have been caused by the negligence of appellant. The defendant offered no evidence, but at the conclusion of the evidence introduced by plaintiff asked the court to direct a verdict of not guilty. The court refused the request, and the question whether the court erred in such refusal is the principal question in the case.

The facts proved on the trial were, in substance, as follows: George Atwell was employed by the defendant as a section hand at Carbondale. Between 3 and 4 o'clock on the morning of February 8, 1901, he was called by the section foreman, and directed to call some of the other section hands, which he did. The occasion for calling out the men at that time in the morning was to repair a broken switch about three-quarters of a mile from the depot, in the north yards, and they went with the foreman to that place on a hand car. When they arrived it was found that a new switch point was needed, and by direction of the foreman they went farther north with the hand car to get the necessary tools and the switch point. They first went to the toolhouse, about 500 feet north of the place where the switch was torn up. There they got the necessary tools, and put them on the car, and went back south about 200 feet, where they left the hand car on the track and went to get the switch point, which lay among some railroad iron about 40 feet east of the track. The switch point was about 15 feet long, and weighed 260 pounds. The had brought it part way, and were all helping to carry it when a whistle was blown, and the foreman called to them that the train was coming, and to come and get the car off the track quick. It was then 20 minutes after 4 o'clock of a dark and foggy morning, and there was a coalhouse situated so that the men could not see an approaching train from the place where they were. They ran to the track, and the foreman and three of the men got over on the west side, and pulled one end of the hand car off. Two of the men did not attempt to cross, as there was not time enough, but Atwell, who was behind, came running and passed them, and just as he stepped one foot over the east rail of the track to get hold of the car the train struck him. The men on the other side jumped back at the same time and escaped injury. The train was running about 35 or 43 miles an hour, and the hand car was demolished, and Atwell was thrown about 35 feet and killed. The men could not see the train, on account of the coalhouse, until they reached the track.

The first count of the declaration charged the defendant with carelessly and improperly driving and managing the locomotive engine and train, and there was no evidence tending to support that charge. The second count charged the defendant with negligence of its section foreman in negligently and improperly commanding the section laborers to run and get the hand car off the track, and we think it manifest, from the above statement of facts proved, that the court was right in refusing to direct a verdict upon the issue formed under that count. The order was improper, and was negligently given by the foreman, without due regard to the safety of the men under his command. By the order he exposed them to great peril,...