Chicago v. Stumps

• Decision Date: 30 September 1870
• Citation: 55 Ill. 367,1870 WL 6431
• Court: Illinois Supreme Court
• Parties: CHICAGO, BURLINGTON & QUINCY RAILROAD CO.v.FERDINAND STUMPS, by his next friend.

55 Ill. 367

1870 WL 6431 (Ill.)

CHICAGO, BURLINGTON & QUINCY RAILROAD CO.

v.FERDINAND STUMPS, by his next friend.

Supreme Court of Illinois.

September Term, 1870.

OPINION TEXT STARTS HERE

APPEAL from the Superior Court of Chicago; the Hon. JOSEPH E. GARY, Judge, presiding.

The opinion states the case.

Messrs. WALKER, DEXTER & SMITH, for the appellants.

Messrs. ROSENTHAL & PENCE, for the appellee.

Mr. JUSTICE SHELDON delivered the opinion of the Court:

This was an action on the case, brought by the appellee, a boy of about the age of seven years, for the recovery of damages for personal injuries sustained by him upon the track of the appellants, upon Brown street, in the city of Chicago, on the seventeenth of April, 1869.

It appears from the testimony that the train of the appellants started from Centre avenue, with some thirteen cars, to take them to the docks of the company, on Twenty-second street, to load with lumber, with the cars ahead of the engine, that is, the engine was pushing the train, and after they turned the curve at Brown street, and when near and a few feet north of its intersection with Walsh street, the appellee was run over, and both of his legs were crushed below the knee. At the time the accident occurred, the appellee, together with Henry Mous, a lad of about twelve years of age, and Herman Mous, nine years of age, were going to the planing mill, on twenty-second street, for shavings, and had with them bags, and when upon Brown street, and just north of its intersection with Walsh street, the appellee was, in some manner, thrown under the train, and received the injuries complained of.

There is some conflict in the testimony, as to whether the appellee, at the time, was attempting to climb upon the ladder of a detached car standing upon the track ahead of the approaching train, or whether he was attempting to climb upon the ladder of one of the cars of the train in motion. The only testimony of the appellee on this point, is that of Henry Mous, one of the boys who was with the appellee at the time of the accident, who says:

There was a single car on the track, and Ferdinand put his bag on the steps of the car. The steps were iron, and go up the corner of the car. The train knocked against the car, and he let go. A fireman hit him on the leg with a piece of coal, and he rolled under the car; is certain there was a car standing there on the track, by itself; that he put his bag on the car and stood on the steps, but did not get on to the ladder of the car; that he saw the cars coming three blocks north, just after the appellee put his bag on the steps of the car; that when the train struck the car the appellee walked along and tried to take off the bag, but the engineer threw a stone and hit him, and he let go the bag, and there were some stones there, and he rolled under the wheels; that he was run over after the car was struck by the first car in the train; that the appellee was on the north end of the car that stood still; that the car upon which appellee was climbing, was not attached to the balance of the train, and was empty; that at the time the train struck the car he was about ten steps from the appellee, upon the street.

In opposition to this, we have, on the part of the appellants, the testimony of the following four witnesses:

John H. Quirk says: “I am a switchman; remember the accident; the train was going south, with the engine upon the north end of it, pushing it. I stood on the head car, on the south car of the train, watching to see that all was right, ahead of the train. There were no cars on the track after we turned the curve and entered Brown street, down to the switch below. I looked ahead as we turned the curve, to see what was on the track, because I wanted to go upon the switch; struck no car on Brown street, up to where we stopped. There was no car ahead of the one I was on; saw no boy there; there was none on the track ahead of this train; there may have been some alongside of the track. From the curve up to where we stopped, I was watching ahead. There was no detached car ahead upon the track; it was the main track, and no place to leave cars; there are never any left there. I know there was no car ahead of this train on Brown street, and we struck no car from the time we left Centre avenue till we got down to the dock. The cars of the train were all coupled together, and to the engine and tender, and I stood on the south car, which was the head car of the train.”

Jacob K. Groff, the fireman, says: He remembers the accident; that as they went around the curve at Brown street the engineer shut off, and reversed his engine, and he went out and put tallow upon the valves, and came back and stepped to the side of the engine, and looked out and saw a little boy hanging upon the ladder of the car, and saw him break his hold and fall under the car; that he immediately told the engineer, who reversed his engine and checked the train as soon as possible; that the boy was on the third car from the engine, on the ladder, on the west side of the car, and on the north end of it; that he broke his hold and fell under the car; that there were thirteen cars in the train; that he went out to put tallow on the valves, went out on his side of the engine, crossed over on the running board, and came around to put tallow on the engineer's side; that when he got back he put his tallow pot away and stepped upon the west side of the engine and looked ahead, and saw this boy hanging upon the third car from the engine, upon the ladder. After he broke his hold and fell down off the ladder of the car, there were two wheels passed over him. Witness looked out just in time to see the boy hanging on the lower round of the third car. He had his feet in the steps under the bottom of the car, because he was not tall enough to reach the second one. They did not strike any car or other object after they started from Centre avenue, until they stopped; if they had they would have felt it on the engine.

Charles Williams, the bell boy, says: “I did not see the boy on the train before it stopped, for I was on the opposite side of the engine; did not notice the train strike any object after we left the curve; I could have told if it had struck the car or other object; it would have stopped her a little--jerked her. It did not strike any object after it left the curve.”

Charles Lake, the engineer, says: “We started from Centre...