Chesapeake Ry Co v. Mihas, 21
| Decision Date | 25 November 1929 |
| Docket Number | No. 21,21 |
| Parties | CHESAPEAKE & O. RY. CO. v. MIHAS |
| Court | U.S. Supreme Court |
Mr. David H. Leake, of Richmond, Va., for petitioner.
Messrs. Joseph D. Ryan, of Chicago, Ill., and John P. Bramhall, of Washington, D. C., for respondent.
Paragraph 120, c. 110, Cahill's Revised Statutes of Illinois 1927, provides that, except in cases where an appeal or writ of error will lie under the Constitution from the state Appellate Courts to the Supreme Court, the judgments of the former shall be final, except (1) in certain cases where, in the opinion of the Appellate Court judges, ques- tions of importance are involved, such judges may grant appeals to the Supreme Court on petition, in which case the grounds for granting such appeals shall be certified, and (2) the Supreme Court may require such cases made final in the Appellate Courts to be certified for review and determination with the same effect as though carried up by appeal or writ of error. Application was made to the state Supreme Court for a writ to review the judgment of the Appellate Court in this case, and was denied. The jurisdiction of this court in granting the petition for a writ of certiorari is now attacked on the ground that petitioner did not exhaust its remedies under state law, because it failed also to apply to the Appellate Court for a certificate of importance and an appeal, as provided in subdivision (1) above. In Minneapolis, etc., R. Co. v. Rock, 279 U. S. 410, 49 S. Ct. 363, 73 L. Ed. 766, we had under consideration the same question, and held that the denial of an application for certiorari by the state Supreme Court was in effect an affirmative of the judgment, and that it would be unreasonable to require an application to the Appellate Court for a certificate of importance and appeal when the Supreme Court and thus approved the judgment. This court therefore has jurisdiction; and we proceed to consider the merits.
The respondent brought an action in the superior court of Cook county to recover damages for a personal injury suffered while engaged as an employee of petitioner in interstate commerce. That court, at the conclusion of the evidence, denied a motion for a directed verdict in favor of petitioner. Upon a verdict of the jury, judgment was rendered for respondent, which the Appellate Court, on appeal, affirmed. Mihas v. Chesapeake & Ohio Railway Co., 249 Ill. App. 446.
Petitioner seeks to reverse the judgment of the Appellate Court on the ground, among others, that there was no proof of negligence and the motion for a directed verdict should have been sustained. Mihas was employed by the railway company to care for switch lights and lamps along the right of way, and had been thus employed for about four years prior to the injury. He had lived all that time near the switch tracks in the yards at Peru, Ind. He was thoroughly familiar with the switching operations and with the fact that they were carried on every day, usually between the hours of 6 and 7 o'clock in the morning. In doing his work, he used a small speeder car, which was kept on the opposite side of the tracks from where he lived; and it was necessary for him to cross these tracks to get the car. About 10 minutes before 7 o'clock on the morning of the accident, as he came from his house, he saw two men with a truck going away from a coal car which they had been unloading. He testified that he looked to one side and the other, but did not see or hear any train or cars approaching. Proceeding directly from his house, on his way across the tracks to get the speeder car, he attempted to climb over a coal car standing with a number of others on a switch track. While in the act of doing so, a string of nine cars was forcibly propelled by means of a flying switch against the standing cars with such violence that Mihas was thrown between two cars and severely injured. The cars being switched moved at the rate of four or five miles per hour, which was not an unusual speed for that kind of an operation. Those engaged in the movement had no knowledge of Mihas' position or of his movements. One of the standing cars contained coal, and shortly prior to the switching operation the two men seen by Mihas had been engaged in unloading the coal into a truck, but at the time of the impact they had driven off and were some distance away from the standing cars. There was evidence to the effect that it was customary for trainmen...
To continue reading
Request your trial
-
Ferguson v. Cormack Lines
...279 U.S. 787, 49 S.Ct. 490, 73 L.Ed. 957; affirmance of judgment for plaintiff reversed. 1929 Term. Chesapeake & O.R. Co. v. Mihas, 280 U.S. 102, 50 S.Ct. 42, 74 L.Ed. 207; affirmance of judgment for plaintiff reversed. New York Central R. Co. v. Ambrose, 280 U.S. 486, 50 S.Ct. 198, 74 L.Ed......
-
O'Donnell v. B. & O. Railroad Co., 28070.
...to sound the warning, unless the hazard from that source was obvious or fully known and appreciated by him. [C. & O. Ry. Co. v. Mihas, 280 U.S. 102, 50 Sup. Ct. 42, 43, 74 L. Ed. 92, 94; Pacheco v. N.Y., N.H. & H. Railroad Co., 15 Fed. (2d) 467; Lehigh Valley Railroad Co. v. Doktor, 290 Fed......
-
Burch v. Railway Co.
...a recovery could be predicated under instruction numbered 1." In support of the first point counsel for appellant cite Chesapeake & Ohio Ry. Co. v. Mihas, 280 U.S. 102, where the injured employee claimed right to rely on a custom in switching cars to give warning to persons other than emplo......
-
Hasenjaeger v. Railroad Co., 21948.
...dangerous track conditions in the locality in question. Martin v. Wabash Ry. Co., 308 S.W. (2d) 735; Chesapeake & Ohio Ry. Co. v. Mihas, 280 U.S. 102; O'Donnell v. Balt. & Ohio Rd. Co., 26 S.W. 929; Pacheco v. Y.N., N.H. & H.R. Co., 15 Fed. 467. The defendant's evidence is silent as to the ......