Chicago v. Clark

• Decision Date: 20 November 1883
• Citation: 1883 WL 10361,108 Ill. 113
• Parties: CHICAGO, ROCK ISLAND AND PACIFIC RAILWAY COMPANYv.CATHARINE CLARK, Admx.
• Court: Illinois Supreme Court

108 Ill. 113

1883 WL 10361 (Ill.)

CHICAGO, ROCK ISLAND AND PACIFIC RAILWAY COMPANY

v.CATHARINE CLARK, Admx.

Supreme Court of Illinois.

Filed at Ottawa Nov. 20, 1883.

OPINION TEXT STARTS HERE

APPEAL from the Appellate Court for the Second District;--heard in that court on appeal from the Circuit Court of Peoria county; the Hon. N. M. LAWS, Judge, presiding.

Mr. J. C. HUTCHINS, Mr. THOMAS F. WITHROW, and Mr. H. W. WELLS, for the appellant:

The court erred in allowing the witnesses to testify as to the habits of the deceased as to care, caution and sobriety. Plaintiff should only have been permitted to prove such facts as would justify a reasonable inference that at the time deceased exercised ordinary care. Chicago, Burlington and Quincy R. R. Co. v. Lee, 60 Ill. 501; Tenny v. Tuttle, 1 Allen, 185; Davis v. Oregon and C. R. R. Co. Id. 187.

The court also erred in permitting the plaintiff to prove that there was a general custom among railroad men to couple and uncouple cars on the inside of curves. Berg v. Chicago, Milwaukee and St. Paul R. R. Co. 50 Wis. 419; Kroyes v. Chicago, Rock Island and Pacific R. R. Co. 32 Iowa, 363; Ferguson v. Central Ry. Co. 12 N. W. Rep. 293; Ormund v. Central Iowa Ry. Co. 13 Id. 54; Hamilton v. Des Moines Valley R. R. Co. 36 Iowa, 38.

The admission of this evidence was error, because it justified a man in performing an unsafe and dangerous duty where there was room enough to perform it elsewhere with safety. Chicago and Northwestern R. R. Co. v. Donahue, 75 Ill. 106; Foster v. Chicago and Alton R. R. Co. 84 Id. 164; Pennsylvania Coal Co. v. Conlan, 101 Id. 93.

The plaintiff's first instruction declares that the master is bound to advise his employés or servants of any and all danger in and about the premises where they are required to work, and that he is liable if he does not do so. This is not the law. The rule is, that an employé assumes, and is presumed to know, the ordinary hazards of his employment. Indianapolis, Bloomington and Western R. R. Co. v. Flanigan, 77 Ill. 370; Schadewald v. Milwaukee, L. S. and W. Ry. Co. 13 N. W. Rep. 460; Honner v. Illinois Central R. R. Co. 15 Ill. 550; Illinois Central R. R. Co. v. Cox, 21 Id. 20; Toledo, Wabash and Western Ry. Co. v. Durkin, 76 Id. 395; Lake Shore and Michigan Southern R. R. Co. v. McCormick, 74 Ind. 440; Toledo, Wabash and Western Ry. Co. v. Black, 88 Ill. 112; Richardson v. Cooper, Id. 323; Baylor v. Del., Lack. and W. R. R. Co. 11 Vroom, 23. Mr. GEORGE A. WILSON, for the appellee:

The failure of appellant to either increase the distance between the cars and platform, so that its employés can discharge their duties with reasonable safety, or to lessen the intervening space, so that its employés can stand upon the platform and discharge their duties, unquestionably convicts appellant of gross negligence. Besides, the curve there was so great that the employés were compelled to couple and uncouple cars on the inside of the curve. As to negligence in this respect, see Illinois Central R. R. Co. v. Walsh, 51 Ill. 183; Chicago and Alton R. R. Co. v. Wilson, 63 Id. 167; Chicago, Burlington and Quincy R. R. Co. v. Gregory, 58 Id. 272; Chicago and Iowa R. R. Co. v. Russell, 91 Id. 298; Chicago and Alton R. R. Co. v. Pondrom, 51 Id. 333.

All the proof showed that the deceased was a temperate, steady, careful and prudent man. He discharged his duties well, and no complaint was ever made to the contrary.

Mr. JUSTICE WALKER delivered the opinion of the Court:

Appellee brought this action in the circuit court of Peoria county, against appellant, to recover for the death of her husband, J. H. Clark, averred to have been caused by negligence of the railroad company. It appears that deceased was a brakeman in the employment of appellant; that at Davidson's quarry, near the city of Joliet, he was injured in attempting to couple cars at a side-track and platform for loading cars with stone; that in coupling them he got between the platform and cars, and his lantern, from some cause, got between him and the cars, and it was so pressed against him that he received internal injuries, from which he died. The negligence averred is, that the track was constructed too near or close to the platform; that the distance between the cars, when on the track, and the platform, did not exceed ten inches; that on the second day of July, 1879, in the night, Clark, in the line of his duty, exercising due care, was engaged in coupling a car loaded with stone, and the defendant's servants in charge of the train handled it so negligently, together with the improper location and construction of the platform, that the train struck Clark with great force, and he was thereby killed. It is averred that deceased did not know of the dangerous character of the place, and was ignorant of the distance or space between the platform and cars, but the defendant knew it was dangerous, but failed to notify deceased of the fact. On a trial in the circuit court plaintiff recovered a judgment. Defendant appealed to the Appellate Court for the Second District, where the judgment was affirmed, and defendant appeals to this court.

It is first insisted that the circuit court erred in admitting evidence of the habits of deceased as to care, prudence and sobriety. Appellee, in her declaration, averred, as she was required to do, that deceased was in the exercise of due care at the time he sustained the injury of which he died, and as no person was present, or knew how the accident occurred, we think this evidence tended to prove that averment. If he was habitually prudent, cautious and temperate, it tended to prove he was so at the time of the injury, which, with the instinct of self-preservation, would be evidence for the consideration of the jury in determining whether he was in the exercise of care. Had there been witnesses who saw the infliction of the injury, the jury could then have determined from such evidence whether he was careful or negligent, and in such a case this evidence would not be admissible. When there are no witnesses to describe such an occurrence, the defendant would surely have the right to prove the person was habitually rash, imprudent and intemperate, to repel the presumption that he was in the exercise...