Elgin, J.&E. Ry. Co. v. Duffy

• Decision Date: 24 October 1901
• Citation: 191 Ill. 489,61 N.E. 432
• Court: Illinois Supreme Court
• Parties: ELGIN, J. & E. RY. CO. v. DUFFY.

191 Ill. 489

61 N.E. 432

ELGIN, J. & E. RY. CO.

v.DUFFY.

Supreme Court of Illinois.

Oct. 24, 1901.

Appeal from appellate court, Second district.

Action by James Duffy against the Elgin, Joliet & Eastern Railway Company. From a judgment of the appellate court (93 Ill. App. 463) affirming a judgment in favor of plaintiff, defendant appeals. Affirmed.A. J. Hopkins, F. G. Hanchett, Fred A. Dolph, and R. B. Scott (Wm. Duff Haynie, of counsel), for appellant.

W. J. Tyers and Alschuler & Murphy, for appellee.

This is an appeal from a judgment of the appellate court for the Second district, affirming a judgment for $5,000 rendered in an action on the case brought by James Duffy against the appellant, in the circuit court of Kane county, to recover damages for the loss of his arm. The accident was occasioned by a collision of the appellant's train with the wagon of appellee at a street crossing in the city of Aurora. The declaration contained nine counts, which, in substance, charged the appellant with negligence is not planking the entire width of the street at the crossing; in running its train at a higher rate of speed than the limit fixed by the ordinance of the city; in permitting a freight car to remain upon the crossing at or near the middle of the street, causing plaintiff to drive off of the beaten track at the crossing; in not ringing the bell or sounding the whistle at the crossing, as required by statute; in running the train at a high rate of speed at a dangerouscrossing; in failing to use sufficient care in coming upon the crossing, which was obscured by buildings, embankments, and trees, and the approach to which was sharply curved. It is also charged that the servants of the company willfully and maliciously inflicted the injury in question.

Railroad street, where the accident occurred, at the crossing in question runs nearly northeast and southwest, and appellant's main line crosses it almost at right angles. The main line of the Chicago, Burlington & Quincy Railroad runs parallel with Railroad street, and about 200 feet west of it. Connecting the main lines of the two roads is a Y track, which crosses Railroad street on quite a sharp curve. North of the Y track is what is known as the ‘Esser Switch,’ which branches off from the Y track a short distance west of Railroad street, and extends south, paralleling the Y and also crossing Railroad street. Where the Y and the Esser switch cross Railroad street they are six or eight feet apart, and are provided with plank crossings in the middle of the street, about 16 feet wide. Appellee was engaged in hauling railroad ties from a car on the Esser switch. The ties were unloaded on the north side of the switch, and there were several cars on that track, one of them extending from two to four feet on the plank crossing. On account of an embankment north of the track it was necessary for appellee to drive close to the north side of the cars as he went to Railroad street. At the time of the accident appellee had loaded his wagon and had driven around the end of the car in the street. In going around the end of the car the turn was short, and he drove off of the planking on the opposite side of the street. There is a sharp decline from the Esser track to the Y track, and when the wagon wheel struck the second rail of the latter track a portion of the load slipped off on the track, and between the wheels, in such a manner that he could not drive on. A man named Hord was with Duffy on the load at the time, and they both slipped off the ties to the ground. Three men who were engaged in assisting to unload the ties from the cars came to appellee's assistance, and started to replace them upon the wagon. Hord, at the request of a watchman near by and with the knowledge of Duffy, went north on the Y track to flag a train, which was expected about that...