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

• Decision Date: 14 June 1894
• Citation: 39 N.E. 324,152 Ill. 458
• Court: Illinois Supreme Court
• Parties: CHICAGO & E. I. R. CO. v. KNEIRIM.

152 Ill. 458

39 N.E. 324

CHICAGO & E. I. R. CO.

v.KNEIRIM.¹

Supreme Court of Illinois.

June 14, 1894.

Appeal from appellate court, Third district.

Action on the case by Frances Kneirim, administratrix of the estate of George H. Kneirim, deceased, against the Chicago & Eastern Illinois Railroad Company. Plaintiff obtained judgment, which was affirmed by the appellate court. Defendant appeals. Affirmed.

W. H. Lyford and J. B. Mann, for appellant.

M. W. Thompson, and G. W. Salmans, for appellee.

On April 1, 1890, George H. Kneirim, appellee's intestate, was killed by being run over by a car of appellant in the yards at Danville Junction. He was a yard switchman employed by appellant to assist in switching cars in the yard. His duties were to couple and uncouple cars, and also to manage the brakes upon the cars which were being switched. About 8 o'closk on the night in question, he was engaged, with other servants of appellant, in distributing cars about the yards. He got upon a section of the train, and rode thereon a distance of a block or more, when, for some reason, he fell off, and was run over by the car upon which he was riding. When found, the car which ran over him was without a wheel upon the brakestaff, and the threads of the screw upon which the nut or cap turned were found to be rusty; and at the side of the track, in the ditch, was a brakewheel. The train containing the car in question came to the yards from the south some time that evening, and was inspected by train inspectors employed in the yard by appellant, and who had been so employed for several years, and who were all known to the deceased; he having worked in the same yards several years, and having frequently handled cars which had passed their inspection. When last seen, prior to the accident, deceased was standing on the alleged defective car, beside the brake, with his lantern down on the platform. The car was loaded with sand, and had come from a sand pit down the road. The appellee, as the administratrix of the estate of the deceased, brought suit in the Vermilion county circuit court against the appellant for damages, under the statute, and alleges in her declaration, as the negligence upon which the action is based, that the appellant carelessly and negligently failed to have the said brakewheel properly and securely fastened upon the brakestaff, so that the same would not come off when a brakeman, in the use of the wheel, attempted to set the brake. A trial was had in the Vermillion county circuit court, which resulted in a verdict in favor of the appellee for $5,000. A motion for a new trial was overruled. Judgment was rendered upon the verdict, and an appeal was taken to the appellate court for the Third district. At the May term, 1892, of the latter court, the judgment was affirmed; and appellant now brings the case, on appeal, to this court.

PHILLIPS, J. (after stating the facts).

The questions arising on this record are on the motions of appellant to exclude the evidence, and instruct the jury to find for the defendant, and in instructions given for appellee, and the modifications of instructions asked by appellant. It is the duty of the company to exercise reasonable and ordinary care and diligence in providing, and keeping in repair, reasonably safe machinery and appliances for the use of the servants; and this is a continuing duty, requiring the company to exercise reasonable diligence and care in supervision and inspection. The delegation of that duty to an employé does not release the company from liability because of the negligence of that employé in the discharge of that duty. Railroad Co. v. Avery, 109 Ill. 314;Railway Co. v. Jackson, 55 Ill. 492;Railway Co. v. Swett, 45 Ill. 197. The duties of George H. Kneirim, as a helper in the yards, were to catch and couple cars. A trian coming into the yards is checked up on the switch list, with each car number put down opposite the destination of the car. The foreman in charge of the yard engine takes the list, cuts off the cars, and places them on the different tracks, for the purpose of making up the several trains, or transferring to another road. The helpers, in catching the cars, climb on and set the brakes, and, when making up the train, couple the cars. The helper would mount the car when in motion, by the direction of the foreman, or, when knowing his duties, without direction from any one. It also appears from the evidence that a train coming into the yards where Kneirim was injured would be left by the train crew that brought it in, and there be examined by the inspectors employed for that purpose, their duty being to inspect the train before the yard engine cuts the train up. By that inspection, they were to examine all the cars, to see if they were in proper condition for running, and, if any of the machinery and appliances was out of repair, to fix it, but, if unable to fix it, mark the car with chalk over its number, and it was then to be sent to the shops. The inspectors who examined this train did not inspect the brakestaff of the car, because of the imperfect and unsafe condition of which plaintiff was injured. The evidence shows that the nut which held the wheel on the brakestaff was off, and, from the rusted appearance of the threads of the staff,-they being filled with rust,-had been off for several weeks. Kneirim was on duty as a helper, and, in the nighttime, when this car was cut off from the train, and sent back on the switch, mounted the car (while it was in motion, and after it had run several car lengths) and set the brake; and, the wheel coming off, the brakestaff caused him to fall and be run over, so injuring him that death soon resulted.

It is insisted that decedent assumed the ordinary hazards of his employment, and was required to use reasonable care and caution for his own safety, and should have examined the brake, to assure himself it was in a proper condition of repair. While Kneirim assumed the ordinary dangers and risks of his employment, he did not assume a risk of the negligence of the employer, in failing to have the cars and appliances in a reasonably safe condition. He had a right to believe the cars were, as to their repair, in a reasonably safe state, and the master's duty in that regard had been discharged. They had just passed an inspection by men employed for that purpose. His duties required him to act promptly, and it cannot be expected or required that he should act with the deliberation and circumspection that could be exercised by the inspectors. He could not, under the circumstances of the duties he discharged, be expected to examine the brakerod, as to whether there was the loss of a nut that caused it to become unsafe. The car had not been under his supervision or control. He had no former care of it. It passed him, and, while in motion, his duties required him to mount it and set the brake. He was not, and could not be, responsible for the defect, nor could he be held guilty for contributory negligence in failing to examine the brakerod, wheel, and nut, under the circumstances. Railway Co. v. Jackson, 55 Ill. 492. The case of a helper in switch yards is unlike the case of a brakeman on a freight train, whose most important duties are the management of the brakes and whose duties bring him in contract with the train such a length of time that it becomes his reasonable duty to see whether they are in order, as held in Railroad Co. v. Bragonier, 119 Ill. 51, 7 N. E. 688, and in Railroad Co. v. Jewell, ...