Burke v. Toledo, P.&W. Ry. Co.
| Decision Date | 07 October 1915 |
| Docket Number | No. 9923.,9923. |
| Citation | 268 Ill. 614,109 N.E. 691 |
| Court | Illinois Supreme Court |
| Parties | BURKE v. TOLEDO, P. & W. RY. CO. |
OPINION TEXT STARTS HERE
Error to Appellate Court, Third District, on Appeal from Circuit Court, Tazewell County; T. N. Green, Judge.
Certiorari on the relation of the Toledo, Peoria & Western Railway Company to review a judgment of the Appellate Court (190 Ill. App. 419) rendered for Elizabeth Burke in her suit as administratrix against the petitioner. Affirmed.
Frank T. Miller and John M. Elliott, both of Peoria, and Geo. C. Rider, of Pekin (Stevens, Miller & Elliott, of Peoria, of counsel), for plaintiff in error.
Jesse Black, Jr., of Pekin, for defendant in error.
Defendant in error recovered a verdict and judgment in the circuit court of Tazewell county for $7,500 against plaintiff in error for negligently causing the death of Timothy Burke, her intestate. Upon appeal the judgment was affirmed in the Appellate Court for the Third District, and the record is brought before us for review on allowance of a petition for a writ of certiorari. No question is made as to the sufficiency of the declaration, and, as all questions of fact have been settled adversely to the contentions of plaintiff in error, it only remains to be determined whether the judgments of the appellate and circuit courts shall be reversed for errors of law. At the close of the evidence for defendant in error, and again at the close of all of the evidence, plaintiff in error moved the court to instruct a verdict in its favor. These motions were overruled, and it is now insisted this was error.
The material facts as disclosed by this record are as follows: Timothy Burke was in the employ of plaintiff in error as a freight brakeman for several months prior to his death, which occurred on April 15, 1912, and at that time he was swing brakeman on freight train No. 23, which arrived from the east at Gridley on that day at or about 11:45 arm. The switch list or switching directions for Gridley station had been sent by the station agent by wire to the conductor of No. 23 prior to its arrival there. Upon its arrival the switching ordered was partly done under the conductor's direction, and list was then turned over to the swingman, Burke, who thereafter had charge of it. Passenger train No. 7, due to arrive at Gridley at 12:19 p. m., was reported eight minutes late, which fact was communicated to Burke by the station agent; also at the same time the incidents happened which resulted in Burke's death. The passenger train, or the smoke of its engine, could be seen at Meadows, the first station east of Gridley, and which was 4 miles distant. The passenger train's running time from Meadows to Gridley was seven minutes. At Gridley the railroad track runs east and west and the view is unobstructed from Meadows to a point west of Gridley station house or depot. The depot is on the north side of the track. South of the main track are two swithes or sidings. About 425 feet east of the depot a switch track leads off to the northeast of the main track, and a short distance east of the connection another switch track leads off from the last-mentioned switch track. Freight train No. 23 backed into one of the switch tracks east of the depot at or shortly before noon, and one or two minutes before the schedule arriving time of train No. 7, which, as above stated, was 12:19 p. m., the station agent and his helpers placed two trucks within a few inches of the south edge of the depot platform, near the west end of the platform, for the purpose of loading and unloading baggage and express from and into the express and baggage car on train No. 7 upon its arrival. The east truck of the two so placed was loaded with egg cases, piled two cases high. Of this Burke had no notice, unless he saw the trucks, which he might have done had he looked that way. At about the time the trucks were placed Burke sent his rear brakeman back as flagman to protect the freight train against the passenger train, then at Meadows, and upon his signal the engine, which was attached to the west end of the freight train, drew four cars out of the switch and onto the main track for the purpose of taking them west of the depot and thence into one of the sidings south of the main track. Burke remained on the ground until the cut of cars came out of the switch, then turned the switch, ran to the side of the last car, and caught onto the handhold on its side, placing his feet in the bottom step or stirrup, swinging his body out at arm's length from the car. He was looking toward the flagman and the passenger train, to the east, and smoke and cinders were blowing toward him from the freight train engine, the wind being from the west. The train approached the depot at the rate of 12 miles per hour, which approximates 1,000 feet per minute. Another brakeman was on the side of a car two car lengths, or 70 feet, in front of Burke. He saw the loaded trucks in time to climb up the car ladder and escape injury, and he shouted a warning to Burke. Whether it was heard or not cannot be known, as Burke's person struck the merchandise on the first or nearest truck, and he was killed. He looked to the west and threw up his right arm as if to shield his eyes just before striking the obstruction.
The proof showed Burke was familiar with the rule of the company which required five minutes' clear time to be allowed prior to the arrival of the passenger train, and with another rule which required him to send back a flagman to protect both the freight and passenger train when there was an infringement by one upon the time of the other or apparent danger of collision; also that he was familiar with the custom of conducting switching operations at Gridley station after the schedule time of arrival of the passenger train when that train was late, continuing the switching until the passenger train ‘showed up.’
The request for a directed verdict raised the question whether there was any evidence which, with all the inferences to be drawn from it, would justify a verdict for the plaintiff. It is contended that the court erred in refusing the request because there was a failure to prove that Burke was in the exercise of due care for his own safety, and because, as a matter of law, he assumed the risk of the hazard by which he lost his life. We do not think there was such a failure of evidence tending to prove due care on his part as would have justified the court in directing a verdict of not guilty. The principal argument that Burke was guilty of negligence is based upon the position he occupied in approaching the place where the trucks were standing, and we do not think such fact was evidence of negligence as a matter of law. There was no evidence that his position was not the usual one assumed by railroad brakemen engaged in the performance of switching service. In fact, the attitude assumed shows that he was prepared safely to drop off from the moving car when it should pass the switch point west of the depot, so as to open that switch and let the train back promptly onto the elevator switch track. Unless he saw the trucks and knew they were so near the car as to be a source of danger there is nothing in the position he occupied which could be charged as negligence. The facts that his attention was attracted toward the approaching passenger train, that smoke and cinders were blowing towards him from the freight train engine, and that he threw up his arm as if to shield his eyes from the dust and smoke, together with all the other circumstances, tended to prove that he did not see the trucks or their position in time to avoid the danger. It cannot be said that there was no evidence fairly tending to prove the exercise of due care on his part. The question whether or not he was guilty of negligence was, under the evidence, one of fact, which was properly submitted to the jury, and the judgment of the Appellate Court has conclusively settled the question in favor of his administratrix.
On the question of the assumption of risk by Burke it is contended that the placing of the trucks which caused his death constituted a danger so open and obvious that he was chargeable with knowledge of the danger resulting therefrom, and that he necessarily knew of the custom of placing trucks as those in question were placed at the time of the arrival of a passenger train, and therefore he assumed the risk. While it may be reasonably claimed that Burke was acquainted with the general custom of using trucks in connection with handling baggage and express to and from passenger trains, there is no evidence that...
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