98 Ill. 481 (Ill. 1881), The Wabash Railway Co. v. Elliott

Citation:98 Ill. 481
Opinion Judge:Mr. Chief Justice Dickey.
Party Name:THE WABASH RAILWAY COMPANY v. EWING H. ELLIOTT
Attorney:Messrs. BROWN, KIRBY & RUSSELL, and Mr. W. L. VANDEVENTER, for the appellant: Mr. JOHN J. MCDANNOLD, Messrs. EWING & HAMILTON, and Mr. WILLIAM H. BARNES, for the appellee:
Case Date:May 13, 1881
Court:Supreme Court of Illinois
 
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Page 481

98 Ill. 481 (Ill. 1881)

THE WABASH RAILWAY COMPANY

v.

EWING H. ELLIOTT

Supreme Court of Illinois

May 13, 1881

May 1881, Decided

Page 482

[Syllabus Material]

Page 483

APPEAL from the Appellate Court for the Third District;--heard in that court on appeal from the Circuit Court of Brown county; the Hon. S. P. SHOPE, Judge, presiding.

This was an action on the case, by the appellee against the appellant, brought in the circuit court of Brown county, to recover for personal injury alleged to have resulted from negligence on the part of the appellant.

The negligence charged in the declaration was, that the railway company placed an iron rod or timber across the top of the west end of the bridge on its road, at Valley City, so low as to endanger the lives and safety of the employees of the company, and negligently permitted it to remain in such dangerous position until the plaintiff, as brakeman, while on the top of a train, in the line of his duty, using due care, was struck and injured on the head by the rod or timber, as the train was coming from the west, on July 3, 1878.

The trial resulted in a verdict and judgment in favor of the appellee for $ 2500, which judgment was affirmed by the Appellate Court for the Third District. The railway company brings the case to this court by appeal, and assigns for error, that the verdict, on the evidence, should have been set aside, and also that the court erred in refusing its sixth instruction asked. That instruction reads as follows:

"The law, for wise purposes, requires every sane man to use and employ his reason and his senses under all ordinary circumstances of life; and if the jury believe, from the evidence, that the plaintiff, as brakeman, before the injury complained of, enjoyed fair and reasonable opportunities for acquiring a knowledge of the condition of said bridge, and the danger arising therefrom,--if any there was,--but ignoring such opportunities, and refusing or neglecting to avail himself thereof, willfully or negligently remained in ignorance of the condition of said bridge, if the same was dangerous, he can not take or derive any advantage from such ignorance, but his rights are to be determined the same as if he possessed the knowledge he might have acquired by the reasonable exercise of his faculties."

Judgment affirmed.

Messrs. BROWN, KIRBY & RUSSELL, and Mr. W. L....

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