Clark v. Chicago

• Decision Date: 31 January 1879
• Citation: 92 Ill. 43,1879 WL 8476
• Parties: SIMON R. CLARKv.CHICAGO, BURLINGTON AND QUINCY RAILROAD COMPANY.
• Court: Illinois Supreme Court

92 Ill. 43

1879 WL 8476 (Ill.)

SIMON R. CLARK

v.CHICAGO, BURLINGTON AND QUINCY RAILROAD COMPANY.

Supreme Court of Illinois.

January Term, 1879.

OPINION TEXT STARTS HERE

WRIT OF ERROR to the Appellate Court of the Third District; the Hon. CHAUNCEY L. HIGBEE, presiding Justice, and the Hon. O. L. DAVIS and Hon. LYMAN LACEY, Justices.

This action was brought by Simon R. Clark against the Chicago, Burlington and Quincy Railroad Company, in the circuit court of Adams county, the Hon. Joseph Sibley, Judge presiding, to recover for personal injuries sustained by plaintiff while in the service of defendant as an engine-driver, on account of a collision of trains on defendant's road. On the trial in the circuit court plaintiff recovered a judgment, but on appeal to the Appellate Court that judgment was reversed and final judgment rendered in that court against plaintiff for costs. The facts found and certified by the Appellate Court are as follows:

Plaintiff was a locomotive engineer in the service of defendant, and on the day of the accident was running an engine with a passenger train attached, over defendant's road, between Camp Point and Quincy. At the same time a wild or extra freight train, belonging to the Toledo, Wabash and Western Railway Company, was running over the same road between Quincy and Camp Point, and about 9:50 P. M. the two trains collided, injuring plaintiff very seriously.

Defendant's road between Camp Point and Quincy had been used continuously as one road, jointly by the two companies, since the year 1859, under a lease from the Chicago, Burlington and Quincy Railroad Company, and, by the arrangement existing between the two roads, the time-table of defendant governed all trains between Quincy and Camp Point, and it was made the duty of all conductors to run by such time-table. The rules adopted for the government of trains running over that part of defendant's road between those points were, that conductors should await the arrival of an incoming train before another of the same class should go out; that inferior trains should wait for superior trains indefinitely; that a wild train had no business except upon an order from the dispatcher of defendant's road, and that first class trains had rights over all inferior trains.

The accident was not caused by any fault of plaintiff, or by any fault of the employees of defendant in charge of the passenger train, but was solely the result of negligence on the part of Gage, the conductor of the wild train of the Wabash road. By the time-table of the Chicago, Burlington and Quincy, the passenger train was entitled to the right of way and was within a few minutes of being on time, and was due in Quincy at 9:45 P. M., but was entitled to the right of way for twelve hours longer. The wild train had run into Quincy from Camp Point about 7:30 P. M. and was to return the same evening, but it was made the duty of the conductor of that train, by such time-table, to await the arrival of the passenger train. Of this duty and of all the information imparted by the time-table, one of which was in his possession, he was fully aware, but for some unexplained reason, instead of waiting for the arrival of the passenger train, he left Quincy a few minutes before it was due and collided with it within five minutes after leaving.

Plaintiff entered the service of defendant as a locomotive engineer in 1859, and served as such until 1867, when he quit such service. From January, 1872, until September of the same year, he was in the employ of the Toledo, Wabash and Western Railway Company, and during that time ran over the road of the Chicago, Burlington and Quincy Company between Quincy and Camp Point, and was governed between those two places by the time-table of defendant. He again entered the service of defendant in September, 1872, and knew, when he did so, that the Toledo, Wabash and Western Railway Company habitually ran its trains over the road of the Chicago, Burlington and Quincy; and that it was governed by the time-table of defendant whilst upon the road.

Plaintiff brings the case to this court on error, and seeks a reversal of the judgment of the Appellate Court.

Messrs. MCKENZIE & CALKINS, for the plaintiff in error.

Mr. O. H. BROWNING, for the defendant in error.

Mr. JUSTICE SCOTT delivered the opinion of the Court:

It is certified to us, the Appellate Court found “the facts as stated in its opinion,”...