Chicago & N. W. Ry. Co. v. Goebel
| Decision Date | 25 January 1887 |
| Citation | 10 N.E. 369,119 Ill. 515 |
| Court | Illinois Supreme Court |
| Parties | CHICAGO & N. W. RY. CO.v.GOEBEL, Adm'r, etc. |
OPINION TEXT STARTS HERE
Appeal from appellate court, First district. B. C. Cook, W. C. Goudy, and W. B. Keep, for the Chicago & N. W. Ry. Co., appellant.
, Frank R. Grover, Robert N. Freeman, and C. M. Hardy, for Goebel, Adm'r, etc., appellee.
John Goebel, as administrator of John J. Hart, deceased, recovered a judgment in the circuit court of Cook county against the Chicago & Northwestern Railway Company for the sum of $5,000 for negligently causing his death, which, on the company's appeal, was affirmed by the appellate court for the First district. By the company's further appeal the case is now here for review.
The accident which resulted in Hart's death occurred November 13, 1883, on a side track east of the company's two main lines at its Evanston yard, near Chicago. The evidence tends to prove that Hart, prior to the accident resulting in his death, was one among a number of teamsters whose daily business was to unload and haul coal and other freight from loaded cars standing on the side track in question; that such unloading of the cars by teamsters was done for the owners of the freight, and not for the company, but with the company's knowledge and consent, and in pursuance of the due course of business at that yard; that on the day first named, while the deceased was loading his wagon with coal from said side track, the car upon which he was standing was, through the negligence of the company, suddenly and violently struck with other cars on the side track and set in motion by a locomotive engine under the control and direction of the company's servants, causing the deceased to lose his balance, and fall between the cars on the track, where he was run over and killed. The evidence also tends to prove that the side track in question was used chiefly, if not exclusively, for standing loaded cars thereon for the purpose of having them unloaded by teams; that it was the usual course of business to daily gather up such cars on the track as had been emptied, and placed them in a local freight train for removal. While the switching required for this purpose was going on, the unloading of cars was necessarily suspended; for, besides being dangerous, as a general rule, all the loaded as well as empty cars would be first pulled out together on another track, and there separated; the empty ones being placed in a train on one of the main tracks for removal, when the loaded ones would be pushed back upon the side track from which they had been taken, and would there be shoved, or, as the witnesses have it, ‘bunched,’ together, and the brakes set. The engine would then be uncoupled, run back, and placed at the head of the train from which it had been detached. This all having been done was understood, as is claimed by appellee, and as we think the evidence tends to prove, as a signal that the switching was over, and that the teamsters might with safety resume the unloading of cars. It also sufficiently appears that the deceased was familiar with the manner in which the business was done at the yard, having been at work there several months previous. Hence it may be assumed that he well understood the significance of bunching the cars, etc., as above stated.
That they were left in such condition on the day of the accident, but a short time before the deceased and the other teamsters resumed their work, is cleary shown. The second count of the declaration, after setting out, by way of preamble, the custom as above stated, and showing that the deceased had, in pursuance thereof, resumed the work of unloading said car, expressly charged that while the defendant was so engaged, and while exercising due care on his part, the defendant, by its agents and servants, wrongfully, negligently, and without any warning or signal, committed the injury of which plaintiff's intestate died, in the manner heretofore stated.
The appellant claims, however, that the switching was never regarded as over until the loaded cars were not only ‘Bunched,’ with brakes set, but also coupled together, and that, as they were not coupled on this occasion, the deceased was guilty of such contributory negligence, in resuming his work before this was done, as to prevent a recovery. the evidence clearly shows that the custom in this respect was not uniform; that, while the switching force of the company would sometimes so couple the cars together, they at other times did not do so. The controversy upon this point, however, is not an open question here. It is one of the controverted questions of fact in the case which is conclusively settled against the appellant by the decision of the appellate court.
Of this same character is the claim that the evidence does not sustain either count of the declaration. The facts relied on as constituting negligence were specifically set forth in each count of the declaration, and they were put directly in issue by filing the plea of the general issue, which was also an admission in law, upon the record, of the sufficiency of the respective counts to which it was filed. Evidence was offered and heard in support of both counts, and the appellate court has expressly found that the evidence sustains the finding under the second count of the declaration; and that is conclusive upon appellant.
The errors of law relied...
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