Illinois Terminal R. Co. v. Thompson

• Citation: 210 Ill. 226,71 N.E. 328
• Parties: ILLINOIS TERMINAL R. CO. v. THOMPSON.
• Decision Date: 23 June 1904
• Court: Supreme Court of Illinois

210 Ill. 226

71 N.E. 328

ILLINOIS TERMINAL R. CO.

v.THOMPSON.

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.Henry S. Baker and Travous, Warnock & Burroughs, for appellant.

John J. Brenholt, for appellee.

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 passingthereon, 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, 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 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 close of the evidence for appellee, and again at the close of all the evidence, appellant requested an instruction to find the defendant not guilty, and each instruction was refused.

1. The first question is whether or not the appellant was guilty of negligence in permitting the telegraph or telephone pole, upon which, with other poles in a line with it, electric wires were strung, to be so near the track upon which the cars were passing as to injure appellee while engaged in the performance of his duties. In Chicago & Iowa Railroad Co. v. Russell, 91 Ill. 298, 33 Am. Rep. 54, where the facts showed that in descending the ladder of a car a brakeman was struck by atelegraph pole standing only 18 inches from the car, and knocked between the cars and killed, and where the facts showed that the railroad company had permitted the telegraph pole to stand where it was for a period of some three years, this court said (page 303, 91 Ill., 33 Am. Rep. 54): ‘It certainly was culpable negligence in the railroad company to permit for so long a time such an obstruction to be in such close proximity to its track that an operative of the road should come in contact with the obstruction and be killed when on a car, engaged in the necessary performance of his duties in the management of the train.’ Il Illinois Central Railroad Co. v. Welch, 52 Ill. 183, 4 Am. Rep. 593, it was held that it was negligence in a railroad company to allow the edge of an awning to its station house to be at a distance of 18 inches from its track. In Chicago, Burlington & Quincy Railroad Co. v. Gregory, 58 Ill. 226, it was held to have been negligence in a railroad company to have a mail catcher in dangerous proximity to its track, by means of which a fireman on the locomotive of the company, while passing a station in the nighttime, was struck and killed. To the same effect is North Chicago Street Railroad Co. v. Williams, 140 Ill. 275, 29 N. E. 672. In the case at bar the facts show that the telegraph pole which caused the injury to the appellee had stood where it was some four years; and there is evidence tending to show that, besides the constructive notice implied from the length of time during which it had stood where it was, the appellant company had had actual notice of its dangerous proximity to the track, and to the cars passing on the track. The facts tend to show that the appellant company was guilty of negligence in permitting the telegraph or telephone pole to remain dangerously near the track for so long a time.

2. Appellant lays stress upon the fact, shown by the evidence, that the yards in question were owned by the Illinois Glass Company, and not by the appellantcompany, and that the Illinois Glass Company had erected the telegraph poles between the two tracks. The contention is that for these reasons the appellant company was not responsible for the cause of the injury, as it had not itself erected the pole in question. This is an immaterial consideration. The appellant was in possession of the tracks and of the yard, and was engaged, in the operation of its business, in switching cars upon such tracks. It makes no difference whether the appellant company owned the premises in fee, or was in possession of them as a...