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

• Decision Date: 16 June 1903
• Citation: 203 Ill. 492,68 N.E. 74
• Court: Illinois Supreme Court
• Parties: CHICAGO & E. I. R. CO. v. HEEREY.

203 Ill. 492

68 N.E. 74

CHICAGO & E. I. R. CO.

v.HEEREY. ^*

Supreme Court of Illinois.

June 16, 1903.

Appeal from Appellate Court, First District.

Action by C. J. Heerey, as administrator, against the Chicago & Eastern Illinois Railroad Company. From a judgment of the Appellate Court (105 Ill. App. 647) affirming a judgment for plaintiff, defendant appeals. Reversed.

Pam, Calhoun & Glennon (W. H. Lyford, of counsel), for appellant.

James C. McShane, for appellee.

CARTWRIGHT, J.

Joseph Heerey, a fireman on one of appellant's engines, was killed on the evening of October 21, 1898, near Kensington, Ill., by the parting of the engine and tender as he was standing with one foot on each, shoveling coal into the fire. He fell between the engine and tender, and was run over by the latter and killed. Appellee, as administrator of his estate, brought this suit in the superior court of Cook county to recover damages for his death, and obtained a judgment, which was affirmed by the Branch Appellate Court for the First District.

At the conclusion of the evidence the defendant asked the court to direct a verdict in its favor. The court refused to do so, and the refusal is assigned as error.

The engine was used to haul a regular train and to do switching work between Oakdale and Thornton, and was taken to defendant's roundhouse in Chicago once a week. On the Saturday night before the accident it was taken to the roundhouse as usual, and was taken out on Monday morning. It was provided with safety chains, one on each side of the drawbar, to prevent the engine and tender from pulling apart in case the drawbar or coupling pin should break. The engine and tender were coupled together with the drawbar and coupling pin, and the safety chains were permanently attached to the tender, to be hooked to the engine. If the coupling was all right, the chains would be slack, but were provided to draw the tender in case the coupling or drawbar should break. When the engine went out from the roundhouse on Monday morning the safety chains were unfastened and hanging from the tender, and the roundhouse foreman and engineer tried to couple them, but found them a trifle too short. Afterward, during the week, the engineer made various attempts to couple the chains, but was unable to do so. It was in use in that condition until the accident, on Thursday evening; and on the morning of that day the deceased, who had been in the defendant's employ as an extra fireman for about three months, was sent out to fire the engine. On the return trip, hauling a train, the deceased was standing with one foot on the engine and the other upon the tender, when the coupling pin broke, and, the safety chains being uncoupled, the engine and tender parted, and the accident resulted.

The amended declaration contained six counts, but the court instructed the jury that plaintiff could not recover, upon the evidence, under either the second, fourth, fifth, or sixth count. The issues under the first and third counts were submitted to the jury. The counts withdrawn from the jury charged the defendant with negligence respecting the drawbar or coupling pin, causing the pin to break. There was no verdict upon those counts, and the questions arising upon the record relate only to the first and third counts, upon which the verdict and judgment were wholly based. They charged that the safety chains provided to hold the engine and tender together in case the coupling apparatus should give way were unfastened and disconnected; that defendant was negligent in that respect, and as a result the engine and tender parted, causing the accident. There is no cross-error assigned on the action of the court in instructing the jury that plaintiff could not recover under the second, fourth, fifth, or sixth count of the amended declaration, and the instruction must be regarded as correct, and not subject to review. The question is whether the court ought to have given the peremptory instruction as to the first and third counts.

The ground for insisting that the court ought to have directed a verdict for the defendant is that the evidence proved, as a matter of law, that the deceased assumed the risk of the chains being disconnected. It is contended that the burden of proof was upon the plaintiff to show that deceased was ignorant of the fact that the chains were uncoupled, and that he failed to prove such fact, but, on the contrary, the evidence showed that deceased was well aware of their condition, and entered upon and continued in the employment without objection. It is the settled law that the servant, when he engages in the employment, does so in view of the risks incident to it; that he will be presumed to have contracted with reference to such risks and assumed the same; and that, if he receives an injury resulting from the incidental risks and hazards ordinarily connected with the employment, he cannot hold the master responsible. Cooley on Torts, 521; 20 Am. & Eng. Ency. of Law (2d Ed.) 109. The rule also applies in any case where the servant during the course of his employment becomes aware of a defect, but voluntarily continues in the employment without objection. Following the universal rule, this court has stated the principle in numerous cases, among which are the following: In Camp Point Mfg. Co. v. Ballou, 71 Ill. 417, it was said: ‘The doctrine upon this subject appears to be that an employé cannot recover for an injury suffered in the course of the business about which he is employed, from defective machinery used therein, after he had knowledge of the defect and continued his work.’ Again, it was said in Simmons v. Chicago & Tomah Railroad Co., 110 Ill. 340: ‘If a servant, knowing the hazards of his employment as the business is conducted, is injured while engaged therein, he cannot maintain an action against the master for the injury merely on the ground that there was a safer mode in which the business might have been conducted, the adoption of which would have prevented the injury.’ In Chicago & Eastern Illinois Railroad Co. v. Geary, 110 Ill. 383, the court said: ‘The rule is as contended by counsel for appellant, namely, when an employé, after having the opportunity to become acquainted with the risks of his situation, accepts them, he cannot complain if he is subsequently injured by such exposure. One may, if he chooses, contract to take the risks of a known danger. Presumptively, he charges in such cases in proportion to the risk, or, rather, for the risk.’ In Herdman-Harrison Milling Co. v. Spehr, 145 Ill. 329, 33 N. E. 944, it was said: ‘That, as between employer and employé, the latter assumes all the usual known dangers incident to the employment, and that he also takes upon himself the hazard of the use of defective tools and machinery, if, after his employment, he knows of the defect, but voluntarily continues in the employment without objection, are familiar rules of law, often recognized by the decisions of this and other courts.’ In Chicago Drop Forge & Foundry Co. v. Van Dam, 149 Ill. 337, 36 N. E. 1024, the court said: ‘As a general rule, the servant will be regarded as voluntarily incurring the risk resulting from the use of defective machinery, if its defects are as well known to him as to the master.’ In East St. Louis Ice & Cold Storage Co. v. Crow, 155 Ill. 74, 39 N. E. 589, it was said: ‘If the injury was the result of obvious defects in the barge where he was working, or from causes known to him, or which he might have known in the exercise of due care, he cannot recover.’ In Pittsburg Bridge Co. v. Walker, 170 Ill. 550, 48 N. E. 915, it was said: ‘An employé assumes the risks of known dangers, and such as are so obvious that knowledge of their existence is fairly to be presumed.’ In Swift & Co. v. O'Neill, 187 Ill. 337, 58 N. E. 416, it was again said: ‘It is well understood that, as between employer and employé, the latter assumes all the usual known dangers incident to the employment, and that he also takes upon himself the hazard of the use of defective tools and machinery, if, after the employment, he knows of the defect, but voluntarily continues in the employment without objection.’

It is also the rule that an employé of sufficient age and experience is chargeable with knowledge of the ordinary conditions under which the business is conducted, and its ordinary risks and hazards, and will be presumed to have notice of and to have assumed all such risks and hazards which to a person of his experience and understanding are, or ought to be, patent and obvious. If a defect is so plain and obvious to the senses that in the exercise of ordinary care the employé would discover it, and he continues in the employment without complaint, and without any assurance by the master that the defect will be repaired or the danger removed, he assumes the risk arising from it. Indianapolis, Bloomington & Western Railroad Co. v. Flanigan, 77 Ill. 365;Swift & Co. v. Rutkowski, 167 Ill. 156, 47 N. E. 362;Lake Erie & Western Railroad Co. v. Wilson, 189 Ill. 89, 59 N. E. 573;Armour v. Brazeau, 191 Ill. 117, 60 N. E. 904;Browne v. Siegel, Cooper & Co., 191 Ill. 226, 60 N. E. 815. The employé, however, has no duty of inspection to examine for and discover latent defects and dangers which arise during the course of his employment, rendering it more than ordinarily hazardous. He is charged with notice of such defects in appliances as the exercise of ordinary care would make manifest to him; but he does not assume the risk of defectsof which he has no knowledge, and which he cannot discover by the use of ordinary care, and of which the master has, or ought to have, knowledge. He has a right to assume that the master has discharged his duty in using reasonable care to furnish him with reasonably safe machinery and appliances, but he cannot assume such fact against his own knowledge of dangerous or defective machinery. The rule is also subject to the...