Chicago v. Londergan

• Decision Date: 15 May 1886
• Citation: 7 N.E. 55,118 Ill. 41
• Court: Illinois Supreme Court
• Parties: CHICAGO, R. I. & P. RY. CO. v. LONDERGAN, by his Next Friend.

118 Ill. 41

7 N.E. 55

CHICAGO, R. I. & P. RY. CO.

v.LONDERGAN, by his Next Friend.

Supreme Court of Illinois.

May 15, 1886.

Appeal from appellate court, Second district.

MULKEY, C. J., SHOPE and MAGRUDER, JJ., dissent.

CRAIG, J.

This was an action on the case, brought by Thomas Londergan against the Chicago, Rock Island & Pacific Railway Company, to recover for an injury received on the eighteenth day of December, 1883, resulting in the loss of an arm. The declaration contains but one count, in which it is averred that the defendant owned and operated a railroad from Chicago to Rock Island, through the village of Bureau Junction, and also a branch from Bureau Junction to Peoria; that on the eighteenth day of December, 1883, plaintiff was in the employ of the defendant as a brakeman on freight trains, and at way stations, such as Bureau Junction, to assist in switching, coupling, and uncoupling cars; and that while so employed it was the duty of the defendant, to enable engines and cars at said Bureau Junction to pass from one track to another, to provide a safe turn-out, and properly block the joints thereof, so as to enable plaintiff, and others employed in like service, to perform the same with reasonable safety. Yet the defendant, not regarding, etc., did not use proper care and skill in constructing its turn-out at said Bureau Junction from its main line to said branch railroad, and neglected to properly block the joints thereof; and the plaintiff avers that, at the date above mentioned, at said Bureau Junction, while the plaintiff was engaged in coupling or uncoupling cars, and was using due care and caution, and without notice of the defective manner in which said turn-out had been constructed, and the dangerous way in which the joints had been left, and of which the defendant had due notice, the foot of the plaintiff became fastened in the joint of said turn-out, when a car of the defendant then in motion threw him upon the track of the railroad, and the wheels of a car of the defendant passed over his left arm, crushing the same so that it had to be amputated, and the plaintiff was thereby greatly hurt, bruised, and became lame and disordered, and so remained hitherto, during all which he suffered great pain, etc.

It will be observed that the only negligence upon which the plaintiff bases his right of recovery against the railroad company is that the switch at Bureau Junction in which plaintiff's foot was caught, was unblocked. It will only be necessary to look at the evidence introduced on the trial for the purpose of determining whether the instructions given for the plaintiff presented the law to the jury which should govern the case as made by the testimony. The evidence introduced in regard to the use of locks in switches is not voluminous. The first witness called upon this question was the general agent of the Chicago, Burlington & Quincy Railroad at Peoria. He testified that the frogs and parts of tracks where one track diverges from another are nearly all blocked in the company's yard in Peoria. Blocks have been in a year or a year and a half. The same is the case in the Burlington road in Galesburg and Burlington. Many of the guards and frogs of the Peoria & Pekin Union are blocked in Peoria. The witness stated that he had been at Peoria three years, and no one had been injured in a switch either before or after the blocks were put in. On cross-examination the witness testified that the Burlington road has 4,000 miles of road, and he did not know whether the blocks add to the safety of the men operating the road or not. Also, Brewer, a switchman in Peoria & Pekin Union, testified that with few exceptions that company in Peoria has its switches blocked. They are put in to keep any one from being caught. There is danger when they are not blocked, if a man would get his foot caught, and the cars were moving towards him. By having blocks put in it would be pretty hard for a man to get his foot below the ball of the rail. He also states that the only other road he ever saw use blocks was the Burlington. That was a different block. His acquaintance with blocking is limited to Peoria and Galesburg. T. B. Burnett, superintendent of the Peoria & Pekin Union Railroad, testified that he was using Holt's patent block. There are other appliances. He has tried filling in between the rails with cinders. That is used in the Wabash. Something of that kind is used on many different roads, not universally. The blocking is to keep men from catching their feet between the rails. There is no absolute safety. It is more safe than without them. The necessity for something for a foot-guard is known and recognized. As to the practice of using blocks, could not say. It is not universal; not half the roads use them. The Hart patent block was first recommended to witness by the defendant. The defendant owns this patent, and uses it on its road. James Redman testified that the tracks of the defendant were blocked in Peoria. S. L. Cunningham, yard-master for the Burlington road, testified that the Burlington road used oak blocks, sawed to fit the rail or switch. The idea was to keep the men from getting their feet in the frogs. The Peoria & Pekin Union use blocks, but of a different kind. On cross-examination he stated the blocks were an experiment, and are yet. The witness also shows that no blocking was used by the defendant at Bureau Junction.

The foregoing is the substance of the evidence introduced in regard to blocking frogs and switches, and upon the evidence thus presented the court gave, for the plaintiff, an instruction as follows:

‘You are instructed by the court, on the part of the plaintiff, that the law requires a railroad company to use reasonable and ordinary care and diligence in providing and maintaining reasonably safe structures, tracks, side tracks, switches, turn-outs, and other appliances required for the reasonable safety of its employes; and if it fails to do so, and in consequence of such failure on its part an injury happened to one of its employes or servants when in the line of his employment as such servant, and while in the exercise of due and reasonable care and caution, then in such case the railroad company would be liable for the injury or injuries thus received.’

As an abstract proposition of law it is not claimed that this instruction is incorrect, but it is contended that, under the pleadings and evidence in this case, that the instruction was improper, and that it could do no less than mislead the jury. The running of trains on a railroad is a dangerous service, and the employes of a railroad company, engaged in that service, are subject to many hazards which are not incident to other departments of labor. An employe who engages in the service of a railroad company in the running of its trains is presumed to do so with a knowledge of the dangers incident to such service, and he assumes the risks of its ordinary hazards. An employer is not...