71 N.E. 328 (Ill. 1904), Illinois Terminal R. Co. v. Thompson

Citation:71 N.E. 328, 210 Ill. 226
Opinion Judge:MAGRUDER, J. (after stating the facts).
Attorney:[210 Ill. 230]Henry S. Baker and Travous, Warnock & Burroughs, for appellant. John J. Brenholt, for appellee.
Case Date:June 23, 1904
Court:Supreme Court of Illinois

Page 328

71 N.E. 328 (Ill. 1904)

210 Ill. 226




Supreme Court of Illinois

June 23, 1904

Appeal from Appellate Court, Fourth District.

Action by David R. Thompson against the Illinois Terminal Railroad Company. From a judgment of the Appellate Court, affirming a judgment for plaintiff, defendant appeals. Affirmed.

Page 329

[210 Ill. 230]Henry S. Baker and Travous, Warnock & Burroughs, for appellant.

John J. Brenholt, for appellee.

[210 Ill. 227]This is an action in case, brought on May 6, 1902, in the circuit court of Madison county by appellee against appellant to recover damages for injuries received by the appellee on February 8, 1902, while appellee was in the service of the appellant. A plea of general issue of not guilty was filed by the appellant. The jury returned a verdict in favor of the appellee for $8,875. Appellee entered a remittitur for $2,875; and, a motion by the appellant for a new trial having been overruled, judgment was entered on the verdict for $6,000. An appeal was taken to the Appellate Court, which has affirmed the judgment of the circuit court. The present appeal is prosecuted from such judgment of affirmance.

The declaration consisted of three counts. The first count alleged that 'the defendant on the 8th day of February, A. D. 1902, was possessed of and using and operating a certain railroad in said Madison county, together with certain switches and a switchyard in the city of Alton, in said county, and had or had permitted to be erected on the south side of its main switch track in its said switchyard in said city of Alton a certain telegraph pole, which said telegraph pole was not placed and erected at a sufficient distance from defendant's said main switch track in said switchyard, and trains passing[210 Ill. 228] thereon, so that persons operating said trains could safely perform their duties in said work while passing over and upon said railroad at said place, and that said telegraph pole standing near said track was highly dangerous to the servants of said railroad in operating its cars and trains thereon while performing their ordinary duties; that on the 8th day of February, A. D. 1902, aforesaid, the plaintiff, while in the employ of the defendant as brakeman, was then and there engaged in assisting in the operating and running of a freight train in the switchyard aforesaid for the defendant, and in the exercise of due care and caution for his own safety, and without any knowledge of the proximity of said pole to the said main switch track, was struck by said telegraph pole while said train was in motion, and was then and there thrown from the said train to the ground with great force and violence, and was run over by said cars, and his ribs broken, his body bruised, and his right arm so injured that the same had to be amputated.' The second count is like the first, except that it avers that the pole was a telephone pole, and omits the averment that the plaintiff was 'without knowledge of the proximity of said pole to said main switch track,' and avers that plaintiff was permanently injured. The third count is like the second, except that it charges that the defendant had or had permitted to be erected a certain pole, 20 feet high, and 8 inches in diameter.

The appellee had been in the employ of appellant as brakeman for about a week or ten days. He worked for the appellant about seven days in its yards, which were located in the inclosure of the Illinois Glass Company's plant in Alton, and at the end of that time was, on February 8, 1902, engaged as a member of a train crew assisting in hauling freight cars out of appellant's yard in the glass company's inclosure. Appellant did a switching business in Alton, and, in the prosecution thereof, [210 Ill. 229] made up trains, moved cars, and delivered the same to the various connections required. In the yard in question were two tracks, running east and west, of which the north track was called the 'house track,' and the south track was called the 'scale track.' The distance between the south rail of the house track and the north rail of the scale track is 8 1/2 feet, and the pole in question was in the center of the distance between the two tracks. The pole in question was one of a line of telegraph or telephone poles standing between the two tracks, and rising some 10 or 12 feet above the tops of the cars when passing. On the north side of the house track, opposite the pole in question, was a house called the 'batchhouse.' This batchhouse was so near the house track, that there was not more than 6 or 7 inches between it and the roof of box cars standing on the track. East of the batchhouse and north of the house track is a building called the 'warehouse,' and between the batchhouse and the warehouse on the east is a space 51 feet wide, through which a wagonway runs. There is a plank crossing over the two tracks, between the east end of the batchhouse and the west end of the warehouse, about 16 feet wide. The pole in question was about 46 feet west of the plank crossing, or of the east end of the batchhouse. Appellee, on the day in question, a little after 5 o'clck in the evening, was climbing up the ladder on the side of a freight box car--one of a moving train of cars going west from the warehouse, which was some 200 or 300 feet east of the point where the injury occurred. The object of the appellee in climbing the ladder on the side of the box car, near the rear end of the forward car of the train, was to reach the top of the car, so as to let off the brakes, to do which was a part of his duty. When near the top of the car he came in contact with the telegraph pole in question, standing between the tracks, and was knocked off, and fell to the [210 Ill. 230] ground, and received the injuries for which this suit is brought. The proof tends to show that the distance between the pole and the roof of the car was some 10, 12, or 14 inches; the distance between the pole and the car near the bottom being greater than at the top, because the cornice or roof of the car extended out some 3 or 4 inches. The appellee, while the cars were moving west on the house track, was between the house track and the scale track, at a distance of some 30 or 40 feet east of the pole, at the time when he started to climb the ladder. Besides the freight car attached to one of appellant's engines, there were 10 other freight cars being drawn by the engine. The only way in which appellee could climb to the top of the car, so as to get upon the same, was upon the side of the car where he made the attempt, because on the other side of the track the roof of the batchhouse left a space of only 6 or 7 inches between the roof thereof and the roof of the freight car.

MAGRUDER, J. (after stating the facts).

At the...

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