Chicago City Ry. Co. v. Leach

• Decision Date: 25 October 1899
• Citation: 55 N.E. 334,182 Ill. 359
• Parties: CHICAGO CITY RY. CO. v. LEACH.
• Court: Illinois Supreme Court

182 Ill. 359

55 N.E. 334

CHICAGO CITY RY. CO.

v.LEACH.¹

Supreme Court of Illinois.

Oct. 25, 1899.

Appeal from appellate court, First district.

Action by Thomas Leach against the Chicago City Railway Company. There was a judgment for plaintiff, which was affirmed by the appellate court (80 Ill. App. 354), and defendant appeals. Reversed.W. J. Hynes, S. S. Page, and H. H. Martin, for appellant.

Wing & Chadbourn and James C. McShane, for appellee.

This is an appeal from a judgment of the appellate court affirming a judgment of the superior court of Cook county, in which appellee recovered $16,500 damages for a personal injury received while in appellant's service. It appears from the statement of facts in the opinion of the appellate court, which seems to be sustained by the evidence, that the appellee was a conductor in the employment of appellant, having in charge two cars,-a grip car and trailer,-operated over the Wabash avenue and Cottage Grove avenue line of appellant's road. The train had come north, and, going around the loop from Madison street along Michigan avenue to Randolph street, had about reached the intersection of the latter street and Wabash avenue, there to begin its return trip southwardly. At that point the train was stopped, and appellee went underneath, between the grip car and the trailer, to tighten a drawbar that needed it. While so situated and engaged, and within a minute and a half to three minutes after he had gone in between the cars, another train, running upon the same track, and operated by a gripman named James Golden, ran into the hind end of appellee's train with such force as to spring its brake, that had been set, and drive it around the curve to and upon Wabash avenue,-a distance of about 70 feet,-before it could be stopped. Appellee was caught underneath the train, and dragged the whole distance, receiving very serious, as well as permanent, injuries. When Golden's train first turned the corner of Michigan avenue and Randolph street, he came within plain sight of appellee's train, standing still, about 300 feet ahead of him, and there was the evidence of apparently impartial witnesses that he made no effort to stop or slacken the speed of his train until close upon appellee's train, and that instead of looking ahead, as he should have done, he was looking in another direction, until too late.

The declaration upon which a trial was had and the cause submitted to the jury consisted of three counts,-the first original count and the first and second additionsl counts. It was alleged in the first count of the declaration that on September 27, 1893, defendant was possessed of, using, and operating a certain railway extending along and upon divers streets and avenues in Chicago, and was also possessed of, using, and operating a certain train of cars which it ran and operated upon said railway, and that plaintiff, on the day aforesaid, was engaged in the service of defendant as a conductor of said train of cars, and as such conductor had charge of said train; that, while plaintiff was so in charge of said train, the drawbars and chains connecting and holding together the grip car and the next car of said train became and were disarranged and out of order, so that it became and was then and there necessary that said drawbars and chains be at once rearranged and put in order, and that it then became and was the duty of plaintiff to then rearrange said drawbars and chains, and put them in order; and that plaintiff, having charge of said train as aforesaid, caused said train to come to a full stop, and to stand still on said track, and, while said train was so standing still, plaintiff, who was exercising due care and caution, then and there stepped between the grip car and the next car of said train to arrange and put in order said drawbars and chains, and that while plaintiff was between said cars, engaged in arranging and putting in order said drawbars and chains, and exercising due care and caution, defendant, by its certain other servants, negligently, carelessly, and recklessly drove and operated a certain other train of cars, operated by defendant upon said railway, at so high and dangerous a rate of speed that it could not be stopped, and it with great force and violence ran into and against the train of which plaintiff had charge, and forced the cars of said last-mentioned train upon plaintiff so forcibly and violently that plaintiff was then and there and thereby violently thrown to and upon the ground, and the cars of the last-mentioned train ran upon and over him, whereby he was injured, etc. The first and second additional counts were filed about three and a half years after the accident happened. The first additional count set up, specifically, that appellee and Golden, who had charge of the car producing the injury, were not fellow servants. In other respects it was substantially like the first count of the original declaration. The second additional count, after alleging appellant's possession and operation of the railway, alleged that appellant had divers servants to operate its trains of cars; that appellee was employed by appellant as a conductor on one of said trains, and then alleged as follows: ‘That frequently, in the operation of said trains of street cars, said trains were run close to each other, and that by reason of the premises it then and there became and was the duty of defendant to use all reasonable care towards furnishing and retaining competent and careful servants to run, manage, and operate its said trains of street cars so as to keep said trains from colliding with each other; but that defendant, at the time and place aforesaid, not regarding its said duty, wrongfully, negligently, and improperly provided and retained in its service a certain servant to run, manage, and operate one of its...