The Wabash Ry. Co. v. Elliott

• Decision Date: 13 May 1881
• Citation: 98 Ill. 481,1881 WL 10502
• Parties: THE WABASH RAILWAY COMPANYv.EWING H. ELLIOTT.
• Court: Illinois Supreme Court

98 Ill. 481

1881 WL 10502 (Ill.)

THE WABASH RAILWAY COMPANY

v.EWING H. ELLIOTT.

Supreme Court of Illinois.

Filed at Springfield May 13, 1881.

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.”

Messrs. BROWN, KIRBY & RUSSELL, and Mr. W. L. VANDEVENTER, for the appellant:

The circuit court erred in refusing a new trial to the appellant, and the Appellate Court erred in not reversing the judgment of the circuit court for that reason. Indianapolis, Bloomington and Western Railroad Co. v. Flanigan, 77 Ill. 371; Illinois Central Railroad Co. v. Welch, 52 Id. 188.

If the plaintiff knew of the danger complained of, he should have quit the service of the company, unless induced by the company to believe a change would be made, and his continuing in the company's employ with such knowledge prevents a recovery for any injury occasioned by the known danger. Camp Point Mfg. Co. v. Ballou, 71 Ill. 417; Chicago and Alton Railroad Co. v. Munroe, 85 Id. 25; Shearm. & Redf. on Neg. § 94; Buzzell v. Laconia Mfg. Co. 48 Me. 113; Patterson v. Wallace, 1 Macg. H. L. 748; Loonam v. Brockway, 3 Robertson, 74; Mad River Railroad Co. v. Barber, 5 Ohio St. 541; Griffiths v. Gidlow, 3 Hurls. & N. 648; McGlynn v. Brodie, 31 Cal. 376; Hayden v. Smithville Mfg. Co. 29 Conn. 549; Wright v. New York Central Railroad Co. 25 N. Y. 562; Priestly v. Fowler, 3 M. & W. 1; Dynam v. Leach, 40 Eng. L. & Eq. 491; Woodley v. Metropolitan Railway Co. 2 Law Times, 384; Indianapolis, Bloomington and Western Railroad Co. v. Flanigan, supra; Chicago, Burlington and Quincy Railroad Co. v. Clark, 2 Bradw. 596; Illinois Central Railroad Co. v. Jewell, 46 Ill. 99; DeWitt v. Pacific Railroad, 50 Mo. 302; Baylor v. Delaware Railroad Co. 40 N. J. L. 23; Owen v. New York Railroad, 1 Lansing, 108; 2 Thomp. on Neg. 1013.

Where the servant's action is founded on the assumption that the master ought to have known of the defect which caused the injury, it is clearly a sufficient defence to show that the servant had equal means of knowledge. Shearm. & Redf. on Neg. § 94.

If one knowingly exposes himself to danger which can be readily avoided, and sustains injury, he must attribute it to his own negligence. City of Bloomington v. Read, 2 Bradw. 547; Toledo, Wabash and Western Railway Co. v. Eddy, 74 Ill. 138.

There was error in refusing appellant's sixth instruction. That it contains a correct proposition of law, we refer the court to the following authorities: St. Louis and Southeastern Railroad Co. v. Britz, 72 Ill. 257; Indianapolis, Bloomington and Western Railroad Co. v. Flanigan, supra; Shearm. and Redf. on Neg. § 94; Whart. on Neg. § 214.

Mr. JOHN J. MCDANNOLD, Messrs. EWING & HAMILTON, and Mr. WILLIAM H. BARNES, for the appellee:

Knowledge on the part of the servant, that the machine or appliance is defective or dangerous, while not sufficient of itself to take the case from the jury, is, nevertheless, evidence of negligence to go to the jury. Thompson on Neg. 1015; Shanny v. Androscoggin, 66 Me. 420; Coombs v. New Bedford...