Berkowitz v. Chicago Terminal Transfer R. Co.
| Decision Date | 04 June 1908 |
| Citation | 84 N.E. 1058,234 Ill. 450 |
| Parties | BERKOWITZ v. CHICAGO TERMINAL TRANSFER R. CO. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Error to Appellate Court, First District, on Appeal from Superior Court, Cook County; Theodore Brentano, Judge.
Action by Herman Berkowitz against the Chicago Terminal Transfer Railroad Company. There was a judgment of the Appellate Court, reversing a judgment for plaintiff, and he brings error. Affirmed.
John F. Waters (Fred W. Bentley, of counsel), for plaintiff in error.
Jesse B. Barton, for defendant in error.
The Appellate Court for the First District reversed a judgment recovered by the plaintiff in error against the defendant in error for a personal injury caused by a collision between a train of the defendant in error upon which the plaintiff in error was a passenger and a switch engine of the defendant in error. The cause was not remanded, the Appellate Court having made a finding of fact as follows: ‘And the court, upon the allegations and proofs in the record in this cause contained, doth find that the appellant was not guilty of negligence contributing to the injury complained of in the plaintiff's declaration.’ The plaintiff in error prosecutes this writ of error to reverse the judgment of the Appellate Court.
The evidence tended to show that the engine which ran into the train on which the plaintiff was a passenger had been taken by its engineer to the roundhouse shortly before the accident and left unguarded, under steam, on the roundhouse tracks, ready to go out with another engineer; that it was in good order, and the engineer left it with the reverse lever on the center, the throttle closed and latched, and the cylinder cocks open. Expert testimony was introduced that if the engine was in good order and left as above stated it would not start without the intervention of human agency. It did start, ran out on the main track and into the train on which plaintiff was a passenger, causing his injury.A young man about 19 years old was employed at the roundhouse as a call boy, and it was his duty to see that the oil cans on the engine were supplied with oil. He was on the engine when it started, and he testified that he did nothing to start the engine but that it started of itself. In the opinion of the Appellate Court it is stated that the proximate cause of the accident was the experimenting of the call boy with the levers when he entered the engine cab to fill the oil cans.
The errors assigned are that the Appellate Court erred in holding that the defendant was not liable for the negligence of the call boy; in holding that the collision did not make a prima facie case of negligence on the part of the defendant; in reversing the judgment of the trial court under the admitted facts as shown in the record; in holding that it was not negligence to leave the switch set in such a way that the engine could run through it upon the main track, and in not affirming the judgment of the trial court.
The errors assigned do not exist in the record. The record shows that the Appellate Court made a finding of fact that the defendant was not guilty of negligence contributing to the plaintiff's injury. This was a finding of ultimate fact which required a judgment for the defendant...
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People ex rel. Rusch v. Fusco
...we are bound by the finding of the Appellate Court. Davis v. Chicago Edison Co., 195 Ill. 31, 62 N.E. 829;Berkowitz v. Chicago Terminal Transfer Railroad Co. 234 Ill. 450, 84 N.E. 1058;Merlo v. Public Service Co., 381 Ill. 300, 45 N.E.2d 665. The only exception of which we are aware is wher......
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