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

• Decision Date: 24 October 1904
• Citation: 212 Ill. 506,72 N.E. 454
• Court: Illinois Supreme Court
• Parties: CHICAGO & E. I. R. CO. v. REILLY.

212 Ill. 506

72 N.E. 454

CHICAGO & E. I. R. CO.

v.REILLY. ^*

Supreme Court of Illinois.

Oct. 24, 1904.

Appeal from Appellate Court, First District.

Action by John Reilly against the Chicago & Eastern Illinois Railroad Company. From a judgment in favor of plaintiff, affirmed by the Appellate Court, defendant appeals. Reversed.

Calhoun, Lyford & Sheean, for appellant.

John C. Trainor, for appellee.

RICKS, C. J.

This is an appeal from a judgment of the Appellate Court affirming a judgment of the circuit court of Cook county for $6,500 in favor of appellee on account of personal injuries.

Appellee claimed to have been struck and injured by a piece of timber projecting from a car in appellant's train. The accident happened at the intersection of appellant's tracks with Dearborn street, near 115th street, in Chicago, Ill., on October 30, 1897, at about 8 o'clock p. m. At this point the main tracks of appellant-two in number-rum in a northwesterly and southeasterly direction across Dearborn street, a little south of 115th street. Dearborn street runs north and south, and Clark street is immediately west of Dearborn street. Appellee himself was the only actual witness to the accident, and he stated that he had just turned his head when he was struck, and also stated that he did not see what struck him. One John Brown, who had been with him a short time before, was standing on the opposite side of the street when the accident happened, but did not see Reilly struck, as the night was dark and foggy, and he could not see across the street. Appellee and Brown had left the former's house, on the east side of Clark street, between 115th and 116th streets, crossed diagonally the block in the rear of the house, and came out on Dearborn street, intending to cross the tracks and go north to 115th street. Their progress across the tracks being blocked by a north-bound freight train on the northernmost of the two tracks, they crossed the first track, and were standing between the two, waiting for the train to pass. Appellee stood on the east side of Dearborn street, and Brown on the west. While so standing, appellee claims to have been struck by a piece of scantling or timber protruding from 18 inches to 2 feet from a flat car in the freight train, which was loaded with heavy timber, and received the injuries complained of. Several hours later he was found by a policeman, lying on the top of an embankment at the side of the tracks, 100 to 150 feet from the Dearborn street crossing. Appellant offered no testimony concerning the happening of the accident, as it did not know of it at the time. It learned of it, in a general way, in a day or so, but claims to have learned none of the particulars until a month or more later, when it claims it was impossible to trace the cars of the train, and find out the condition in which they arrived in Chicago on the evening of the accident.

The declaration consists of two counts. The substance of the first count is that the cars in question were negligently loaded with timber, so that a piece thereof projected. The substance of the second count is that the train was so operated and managed that the said piece came to project, and defendant knew of the dangerous position of the scantling.

Appellant contends that before plaintiff could recover in this case he was compelled to prove either that the car was negligently loaded in the first instance, or that it became unsafe during the course of its passage, and that defendant either knew, or in the course of ordinary care should have known, of the defect before the accident; and it is further contended that there is no evidence upon any of these propositions; that all there was to the testimony was the bare proof that the scantling projected from the car.

The judgment in this case is sought to be sustained on the theory that the maxim res ipsa loquitur applies, and unless this contention is allowed to prevail the judgment will have to be reversed, for, unless the accident or injury sustained by the plaintiff bespeaks the defendant's wrong, there is no proof of culpable negligence. There is no evidence to show how the car of lumber from which the timber that caused the accident projected was originally loaded-whether skillfully or otherwise-or whether the projecting timber was the result of accident or negligence, or how long it had been in the position it was when it caused the injury. The rule of res ipsa loquitur was discussed and clearly expounded in Cleveland, Cincinnati, Chicago & St. Louis Railway Co. v. Berry (Ind. Sup.) 53 N. E. 415,46 L. R. A. 33. In that case a railroad track inspector was injured by an iron pin thrown from the tender of the train while he was standing about 10 feet from the track, and it was contended that the rule res ipsa loquitur applied; but the court held otherwise, and, in discussing the rule, said: ‘Does the rule res ipsa loquitur apply to this...