Atkins v. Lackawanna Transp. Co.

• Decision Date: 16 October 1899
• Citation: 182 Ill. 237,54 N.E. 1004
• Parties: ATKINS v. LACKAWANNA TRANSP. CO.
• Court: Illinois Supreme Court

182 Ill. 237

54 N.E. 1004

ATKINS

v.LACKAWANNA TRANSP. CO.

Supreme Court of Illinois.

Oct. 16, 1899.

Error to appellate court, First district.

Action by Frank Atkins against the Lackawanna Transportation Company. There was judgment for defendant, which was affirmed by the appellate court for the First district (79 Ill. App. 19), and plaintiff brings error. Affirmed.

Church, McMurdy & Sherman, for plaintiff in error.

D. J. & D. J. Schuyler, Jr. (D. J. Schuryler, of counsel), for defendant in error.

WILKIN, J.

Plaintiff in error sued defendant in error in the superior court of Cook county for damages resulting from an injury received by him in jumping from one of defendant's boats to a dock, in the city of Chicago. A demurrer was sustained to the amended declaration, and plaintiff elected to stand by it, whereupon judgment was rendered against him for costs. That judgment was affirmed in the appellate court for the First district, and plaintiff now prosecutes this writ of error.

The amended declaration alleges, in substance, that on the 15th day of June, 1891, the defendant, a corporation, was a common carrier of merchandise on the Great Lakes, operating a line of steamships thereon; that on that day one of the steamers, the Florida, having about 2,000 tons of coal aboard, had arrived at, and was moored to, Hedstrom's dock, in Chicago,-a wharf on the Chicago river,-and about 20 men were employed, at the instance of defendant, in unloading the coal; that plaintiff, a resident of Chicago and a minor (17 years of age), was then and there lawfully on this vessel, ‘with the knowledge and permission of defendant,’ for the purpose of supplying the men with drinking water, being employed by them for that purpose; that it was the duty of the defendant to give warning of the removal of the vessel from the dock, and to provide and maintain a means of passing from the vessel for a reasonable time after the work of unloading was finished; that when the work of unloading was finished, and plaintiff was then and there preparing forthwith to leave the vessel by means of a gang plank provided and maintained by defendant, the defendant, knowing the premises and without notice to plaintiff, and before he had a reasonable opportunity to leave the vessel, wrongfully and negligently withdrew the plank, so that plaintiff had no safe means of leaving the vessel, and forthwith began to cast off the ropes by which the vessel was moored to the dock, and to move the vessel away from the dock, and plaintiff desiring to leave the vessel, ‘and being moved and impelled by the sudden exigency,’ and ‘believing at the time that he might safely do so,’ jumped to the dock, and thereby sustained injuries, etc. It is contended by counsel for plaintiff in error that the defendant in error owed to him, while on its vessel, the same degree of care that a carrier owes to passengers; that is, the highest degree of care. Counsel for defendant in error, on the other hand, contend that the plaintiff was on the vessel as a licensee merely, and defendant in error was liable only for a failure to observe ordinary care for his safety. The rule relied upon by counsel for plaintiff in error, which seems to be supported by the general trend of decisions, is stated in Wood on Railway Law (volume 3, Minor's Ed. 1894, pp. 1627, 1628), as follows: ...