Chicago & A.R. Co. v. Kelly

• Decision Date: 05 April 1889
• Citation: 127 Ill. 637,21 N.E. 203
• Court: Illinois Supreme Court
• Parties: CHICAGO & A. R. CO. v. KELLY.

127 Ill. 637

21 N.E. 203

CHICAGO & A. R. CO.

v.KELLY.

Supreme Court of Illinois.

April 5, 1889.

Appeal from appellate court, Third district.

Isaac N. Phillips and Williams & Capen, for appellants.

Stevenson & Ewing, for appellee.

CRAIG, C. J.

This was an action brought by Catharine Kelly, administratrix of the estate of Patrick Kelly, deceased, against the Chicago & Alton Railroad Company, to recover damages for the death of Patrick Kelly, which was caused, as is alleged, by the negligence of the defendant. On a trial before a jury in the circuit court a judgment was rendered in favor of the plaintiff, which on appeal was affirmed in the appellate court. Various errors have been assigned in the record by counsel for the defendant, but many of them relate to questions of fact which, under our present statute, are not reviewable in this court. Such questions of law as arise in the record and are subject to review in this court will be considered. The facts which led to a verdict in the circuit court may be briefly stated, as follows: Kelly was working for the company as a section hand under James Mehan, a section boss. Mehan testified that Kelly's duties were as follows: ‘I was his foreman. I had six men working under me. The men under me had to do all the necessary work,-anything that was ordered to be done under my control. The men under me were doing track-repairing. It was our business to keep the track in repair. I had seven miles under my control. The men under me threw up embankments, raised up the track, put in rock, and tiled under it, attended to the fences along the track, and the ballasting, and any other thing we had to do in the line of repair. It sometimes becomes my duty to shove cars from one place to another with my men. I take hold of them to shove. Do not get on the engine to run them. Simply shove the cars from one place to another on the track. That is all I have to do with the cars.’ On the 5th day of January, 1886, a construction train left Bloomington with 22 cars loaded with rock, to be distributed along the track a few miles south-west of Hopedale, to be used in ballasting the track. The train had on board an engineer, fireman, conductor and two brakemen. The section hands under Mehan, including Kelly, boarded the train as it passed through Hopedale for the purpose of assisting in unloading the rock along the track. The men finished unloading the rock between 3 and 4 o'clock. When the train reached Hopedale these section men left the train to resume their duties as section hands. What occurred from that time to the death of Kelly is stated by the appellate court in its opinion, as follows: ‘The trainmen began to prepare the train for returning to Bloomington, and the section men were ordered by Mehan, their foreman, to take some old iron which had been gathered up along the road at some former time and placed on the depot platform, and carry it across the main track, and place it on a flat car standing on the side track, just opposite the platform. This car was no part of the construction train. After some time spent by the trainmen in switching and arranging their train for its return to Bloomington, they desired to transfer the engine from the south western end of the train to the other, which they did by a running or flying switch. The train was backed up on the main track towards Bloomington a sufficient distance for the purpose intended, and then started back, and, having acquired a speed of some eight miles an hour, the engine was cut loose from the train, and, increasing its speed, ran in upon the side track, where three or four cars were standing, upon one of which the old iron was being loaded by Kelly and others. The engine did not go far enough upon the side track to let the train pass it without a collision, but the tender of the engine was struck by the caboose, breaking off the crossbeam and step of the caboose, and injuring the tender. The engine was at once moved forward by the engineer, striking one of the cars standing on the side track with such force as to break off the cow-catcher, break the headlight and the cast-iron heading of the boiler, knock the trucks from under the car in front, and throw it forward against the car upon which the iron was being loaded, and which from the force of the blow was moved forward about its length. It produced considerable noise and confusion. Kelly, with another man, was at this moment placing a large piece of iron upon the car, and they had to step along with the moving car to keep it from falling to the ground. As soon as they could let go of it they did so, and turned to go across the...