Chicago & A.R. Co. v. Harrington

• Decision Date: 24 October 1901
• Citation: 61 N.E. 622,192 Ill. 9
• Court: Illinois Supreme Court
• Parties: CHICAGO & A. R. CO. v. HARRINGTON.

192 Ill. 9

61 N.E. 622

CHICAGO & A. R. CO.

v.HARRINGTON.

Supreme Court of Illinois.

Oct. 24, 1901.

Appeal from appellate court, Fourth district.

Action by John Harrington against the Chicago & Alton Railroad Company for personal injuries. From a judgment of the appellate court (90 Ill. App. 638) affirming a judgment in plaintiff's favor, defendant appeals. Affirmed.Charles P. Wise, for appellant.

F. C. Smith, M. Millard, and A. R. Taylor, for appellee.

This is an action on the case, brought in the summer of 1897 by the appellee against the appellant company to recover damages for a personal injury. The first trial of the cause resulted in a judgment in favor of the appellee for $11,000. An appeal was taken from this judgment to the appellate court. The appellate court reversed the judgment, and remanded the cause. This judgment of reversal and remandment was entered by the appellate court at the February term, A. D. 1898, thereof. Appellee filed a remanding order (77 Ill. App. 499), and the cause was again tried, resulting in a verdict in favor of the appellee for $15,000. Upon the argument of the motion for a new trial on November 4, 1899, the trial court required the appellee, plaintiff below, to enter a remittitur of $5,000, and, appellee having entered such remittitur, judgment was then rendered in his favor against the appellant on November 4, 1899, for $10,000. An appeal from this second judgment was taken to the appellate court, and the appellate court has affirmed the judgment. The present appeal is prosecuted from such judgment of affirmance.

The East St. Louis freight yard of the Toledo, St. Louis & Kansas City Railroad (commonly called the ‘Clover Leaf’) is what is called a ‘stub yard,’ and the only way of getting into the from the yard with cars is from the east end of it. A main or lead track runs from the east end of the yard to the freight house at the west end. From this main or lead track a number of switches branch off westerly, on which are received freight cars coming from other roads, at all hours of the day and night. The switch tracks are connected with the main or lead track by switches. On January 27, 1897, early in the morning, and while it was yet dark and was snowing, a switch crew of the appellant company transferred a number of cars of perishable freight from appellant's road to a switch track of the Clover Leaf road, and in doing so omitted to place the cars a sufficient distance down the switch track to allow a locomotive and cars to pass along the lead track without coming in contact with the last car so placed on the switch track, and also omitted to close the switch, but left it open. Several hours before the servants of the appellant company had thus transferred its cars to a switch track of the Clover Leaf road, a switching crew of the Clover Leaf road had gone out of the yard up to Madison, or Miller's Station, to take some cars, and returned to the freight yard of the Clover Leaf road after appellant's switching crew had finished their work and left the yard. The switching crew of the Clover Leaf road, which thus entered the freight yard between 4 and 6 o'clock on the morning of January 27, 1897, consisted of five men. Of these five men, one was the fireman and one was the engineer. Besides the fireman and engineer, there was a foreman, and there were also two helpers. Appellee was one of these helpers. When the switching crew of the Clover Leaf road came down the lead track, to freight cars were fastened to the locomotive ahead of it, so that the two freight cars were pushed forward by the locomotive. When the switching crew entered the freight yard, the engineer and fireman were in their proper places upon the locomotive. The foreman was in the cab of the engine. One of the helpers was on top of the forward car of the two cars which were pushed by the engine. Appellee, the other helper, was standing upon the footboard in front of the engine, and between the engine and the second or last of the two cars. The engineer was named Neff. The fireman was named Thomas or Thompson. The foreman was named Donahue. The helper on the forward car was named Fox. They were shoving the two cars westward to the freight house, and it was the intention to cut the cars of and leave them.

When the servants of the appellant transferred appellant's cars, containing perishable freight, from appellant's road to one of the switch tracks of the Clover Leaf road, in the freight yard of the latter, they left the switch open, and the hindmost of appellant's cars projected over from the side switch, upon which said cars stood, onto the main or lead track. The result was that when the engine and the two cars ahead of it, which the switching crew of the Clover Leaf road were pushing, reached the switch track on which appellant's servants had left its cars, the cars, so pushed by the Clover Leaf switching crew, ran into and collided with appellant's cars. The result of this collision was that the locomotive on the front footboard of which appellee was riding and the rear car of the two cars in front of the locomotive came together, breaking appellee's legs, tearing off a finger, and otherwise severly injuring him. The negligence charged in the declaration against the servants of appellant was that they left the cars containing perishable freight on the switch track, and neglected to close the switch.

The declaration contains only one count, and alleges that the plaintiff, on January 27, 1897, was in the employ of one Pierce, receiver of the Toledo, St. Louis & Kansas City Railroad Company, or the Clover Leaf Company, as a switchman at the depot and yards of the receiver is East St. Louis; that the defendant, in delivering nine cars to the receiver upon his track at such yard in the night-time, negligently left and placed the same so near the switch connecting such track with the lead or main track that room was not left for other cars or engines to pass along such lead or main track without colliding therewith; that appellant's servants carelessly left said switch open, which they ought to have closed and set for such lead or main track; that while plaintiff was riding on the footboard of a certain switching engine of the receiver, to which two freight cars were attached, with due care and diligence, ‘said engine and cars were unavoidably run and driven upon said track where the defendant's servants had left the cars aforesaid, by reason of said switch being left open as aforesaid, and up to and against said cars with such force that the car next to the engine, upon which the plaintiff was so riding, was pushed and jammed against the plaintiff and said engine, whereby the plaintiff was caught between the car and engine, and crushed and injured.’

MAGRUDER, J. (after stating the facts).

1. After the cause was reinstated in the trial court upon the reversal and remandment thereof by the appellate court, appellant made two applications for a change of venue. The first application was made in vacation on November 26, 1898, to the judge of the city court of East St. Louis, after due notice given to appellee, and the petition for a change of venue alleged that the inhabitants of the city of East St. Louis were so prejudiced against appellant that it could not obtain a fair in the city court of East St. Louis. Attached to the petition were affidavits in support of its allegations. The court refused to grant the change of venue, to which appellant excepted, and on the same day presented its bill of exceptions, which was signed by the judge, and filed. On December 5, 1898, the city court of East St. Louis met for its December term, and on December 9, 1898, the judge of that court, on his own motion, set aside the order denying a change of venue, made in the cause in vacation, and ordered the parties to take such steps as they saw fit. Appellant objected to the setting aside of such order, contending that the court had then no power to do so, and took exception to the ruling of the court. On December 12, 1898, appellee, plaintiff below, asked leave to file counter affidavits, which the court granted, and to which appellant objected and excepted. After the counter affidavits were filed, the court examined and considered all the affidavits on both sides, and again denied the petition for a change of venue; and appellant presented its bill of exceptions, which was signed and approved on December 19, 1898. On August 28, 1899, appellant made a second application for a change of venue, and this second application was based upon the alleged prejudice of the judge of the city court of East St. Louis. The petition therefor stated that appellant did not waive the alleged error of the court in denying the previous application for a change of venue on account of the prejudice of the inhabitants of East St. Louis. The court denied this second petition, and signed and sealed a bill of exceptions. When the case was called for trial, appellant filed written objections to going to trial, contending that the court had no jurisdiction to try the case, because-First, it should have granted the petition for a change of venue as asked in vacation; and because, second, it should have granted the change of venue based upon the alleged prejudice of the judge. These objections were overruled.

The first alleged error complained of by the appellant is the action of the trial court in refusing the applications for a change of venue at the times and under the circumstances above stated. It is said that, when the court refused to grant the change of venue petitioned for in vacation, the requirements of the statute had been complied with, and the status of the matter had been fixed, so that the court had no discretion thereafter to set aside the order denying the petition for a change of venue. The second paragraph of section 1 of the ‘Act to revise the law in relation to change of venue’ provides that, ‘where either party...