Chicago & E.I.R. Co. v. Driscoll

• Decision Date: 24 October 1898
• Citation: 52 N.E. 921,176 Ill. 330
• Parties: CHICAGO & E. I. R. CO. v. DRISCOLL.
• Court: Illinois Supreme Court

176 Ill. 330

52 N.E. 921

CHICAGO & E. I. R. CO.

v.DRISCOLL.¹

Supreme Court of Illinois.

Oct. 24, 1898.

Appeal from appellate court, First district.

Action by Clara B. Driscoll, as administratrix of the estate of John Driscoll, deceased, against the Chicago & Eastern Illinois Railroad Company. From a judgment of the appellate court (70 Ill. App. 91), affirming a judgment for plaintiff, defendant appeals. Reversed.

Magruder, J., dissenting.

Will H. Lyford, William J. Calhoun, and Albert M. Cross, for appellant.

James C. McShane, for appellee.

PHILLIPS, J.

This is an appeal from a judgment of affirmance by the appellate court for the First district of a judgment for $5,000, rendered by the circuit court of Cook county against appellant and in favor of appellee, for causing the death of her husband.

The declaration charges that the defendant negligently maintained in its freight yard a certain track without any butt post or other obstruction at the end thereof, and because of such absence a car had been run off the track into the ground before the accident, by a crew with which Driscoll, the deceased, had no connection; that the switching crew of which the deceased was a member coupled its engine to a train on this track, of which train this car was a part, and, in moving the train, the car, because of being off the track, was thrown against a standing train on an adjoining track, and Driscoll was caught between the moving and standing trains, and killed. Other counts of the declaration charge that defendant had in its employ an assistant night yard master, not a fellow servant of the deceased, who knew, or by the exercise of ordinary care might have known, this car was off the track, and knew, or might have known, that the deceased and his crew were ignorant thereof; but he negligently ordered Driscoll and his crew to attach their engine to and move the train without notifying the crew of the position of this car, whereby Driscoll was caught in a collision between a car off the track and a train on an adjoining track and killed. Another count alleges that a switching crew with which Driscoll was not connected was guilty of negligence in pushing this car off the track, etc.

Two switching crews were employed in the same switch yard, and both handled this train which caused the accident within a few minutes of its occurrence. One was known as ‘Hurd's Crew’ and the other as ‘Ward's Crew.’ Driscoll had been a member of both crews, and was familiar with their work and the yard and tracks, but at this time was working with Ward's crew. Three of the tracks were used as repair tracks, and were stub tracks, at the ends of which no butt posts had ever been erected, but were left open, so that if a car was pushed too far it would run off onto the ground. It was the duty of Hurd's crew to switch cars on these repair tracks and remove cars therefrom, and to also transfer cars to other switch yards. Ward's crew also switched cars onto and removed cars from these repair tracks and made up and broke up trains. Both crews were at work in the yard, breaking up and making up freight trains, switching and removing cars, using the repair and yard tracks with equal frequency, often on the same track, constantly working near each other, with duties of the same character. Within the limits of the yard, the duties of the two crews were identical and performed at the same time. Each crew consisted of five men,-an engineer, a fireman, a foreman, and two helpers. One member had the duty of making couplings in the front part of the train, opening switches ahead of the engine, and repeating to the engineer signals from the rear. It was the duty of another member of the crew to act as rear man. His duties were to go to the rear end of the train on a repair track to see that all cars were properly coupled and the train in proper condition to be moved, to give signals from the rear, and close switches behind the train. These duties were performed by the foreman and helpers indiscriminately. Driscoll had frequently acted as rear man, and was performing those duties on the evening of the accident. There is no dispute about these facts, and they appear from plaintif's evidence and are uncontroverted. On the evening of the accident, Hurd's crew pushed all the cars together on the track on which the accident occurred, coupled them together, and left them standing with the rear wheels of the rear car about 10 inches from the end of the rails and on the track. His crew then pulled the cars from two other stub tracks, backed them onto the track where the accident occurred, and coupled the train of cars, and left it, and saw it no more until after the accident. There is no evidence in this record that Hurd's crew, in making up this train, pushed the car off the track. Ward's crew was ordered to take this train from the track from where it was so made up, and distribute it, but the time between the departure of Hurd's crew and the arrival of Ward's crew is not shown. After coupling onto this train, and attempting to pull out, the accident occurred as alleged. When and how this car became thus partially off the track, from this record, is unknown.

To meet the evidence of plaintiff that no butt post was placed at the end of the stub track on which the accident happened, the defense introduced evidence that when butt posts were placed at the ends of the tracks it frequently happened that a train would back in at considerable speed, and the momentum of a heavy train, moving rapidly, would, upon impact with the post, wreck cars of the train, but that without such posts switching crews would have to stop the train, and would be more watchful than if reliance would be placed on a butt post. Plaintiff introduced eight witnesses, who, over the objection of the defendant, were permitted to testify as to the number of years they had been in railroad service, and that they were familiar with the manner in which stub tracks were constructed, with reference to obstructionsplaced at the ends of such tracks, by reputedly well-regulated roads in Chicago. Each of these witnesses was then asked how stub tracks were constructed by railroad companies in this particular, and to this question, when put to each witness, defendant objected, its objection was overruled, and an exception was taken. Each witness then answered that obstructions of some sort were usually placed at the ends of stub tracks. At the close of the evidence for plaintiff, and at the close of the entire testimony, the defendant asked instructions to find for the defendant, which were refused, to which the defendant excepted.

From these facts these questions are presented: First, whether a failure to put a butt post at the end of a stub switch in a switch yard is such a showing of negligence in the construction of the track as should be submitted to a jury; second, whether it was error to admit evidence that other roads were constructed with butt posts at the ends of such stub tracks; third, whether members of two switching crews working in the same yard are fellow servants; fourth, whether, under the evidence, appellant is liable for the alleged negligence of Hurd's crew, or of Blake, the assistant night yard master.

With reference to the first proposition, it may be said that the manner of constructing a railroad is an engineering question. A railroad company cannot be required to adopt any particular method of construction, or any particular contrivance or device, in order to be in the exercise of ordinary care. Public policy does not require courts to lay down any rule as to the manner of construction of railroads. The hazardous character of the business of operating a railroad, and the danger to life, body, and limb of employés thereon, may well call for specific legislation having for its object the protection of the person of the employé and of the traveling public, and yet it is not a question for a court to submit to a jury whether the manner of construction of a railroad is proper or not. A verdict is not a precedent, and is not...