Columbus v. Nicholas Troesch.

• Decision Date: 30 September 1870
• Citation: 57 Ill. 155,1870 WL 6599
• Court: Illinois Supreme Court
• Parties: COLUMBUS, CHICAGO & INDIANA CENTRAL RAILWAY COMPANYv.NICHOLAS TROESCH.

57 Ill. 155

1870 WL 6599 (Ill.)

COLUMBUS, CHICAGO & INDIANA CENTRAL RAILWAY COMPANY

v.NICHOLAS TROESCH.

Supreme Court of Illinois.

September Term, 1870.

APPEAL from the Circuit Court of Cook county; the Hon. ERASTUS S. WILLIAMS, Judge, presiding.

The opinion states the case.

Mr. E. WALKER, for the appellant.

Messrs. HERVEY, ANTHONY & GALT, and Messrs. MERRIAM & ALEXANDER, for the appellee.

Mr. JUSTICE SHELDON delivered the opinion of the Court:

The declaration in this case alleged that, on the 20th day of September, 1868, the plaintiff, as conductor, had charge of a train of cars on the road of the defendant, in the city of Chicago; that the defendant was at the time negligent of its duty in the use upon said train of an insufficient and unmanageable locomotive engine, unfit for use on said road, of which unfitness the defendant had notice, and of which the plaintiff was unaware, and that there was further negligence upon the part of the defendant, in the employment upon such train of a reckless and incompetent engineer, and that by reason of such negligence the plaintiff sustained great personal damage and injury.

The defendant pleaded the general issue. The case was tried before a jury, and a verdict rendered in favor of the plaintiff; a motion for a new trial was overruled and judgment rendered upon the verdict, and the cause was brought to this court by appeal.

The facts and circumstances which gave rise to the alleged cause of action are briefly as follows:

In the fall of 1867, the plaintiff entered the service of the defendant, as switchman, in the yards at Chicago. His particular duties under his employment were, to assist in the making up of trains, coupling and distributing cars. He was under the immediate control and subject to the orders of the yard-master. He continued this service a few months, when he received an injury which disabled him from labor for about four months, but returned to work in the same capacity in June, 1868, and continued until September 21, 1868.

A few days previous to the last named day, the plaintiff was promoted to switch conductor, and as such had control of different trains in the yard, subject, however, to the orders of the yard-master. On the morning of September 21, 1868, the plaintiff took charge of a train, composed of flat cars, some eight or ten in number, loaded with railroad iron rails, under orders to proceed to Hoyne street, take on two more cars, and distribute or leave the cars elsewhere. Attached to this train was engine No. 34 (known as a switch engine,) under the control of Ransom Tupper as engineer, with James Casey as fireman; the plaintiff had, as an assistant or helper, Edward Bennett. The cars were all in front of, and being pushed by, the engine; the plaintiff standing upon the front end of the forward car, while Bennett was upon the engine with Tupper and Casey; there being no other persons upon the train. At Hoyne street it was necessary to bring the train to a full stop for the purpose of opening a switch, a fact known to both the plaintiff and Tupper. When at a distance of several carlengths from Hoyne street, the plaintiff gave the engineer a signal, relative to the character of which there is contradictory evidence, but designed, at all events, to further reduce the rate of speed at which the train was moving, and in response to which Tupper reversed his engine. The effect of this reversal was to reduce, suddenly, the speed of the engine, and then to take up the slack or link with which the first car was attached to the engine, and thence from car to car until the last or forward car was reached, upon which the plaintiff was standing; also to produce a jerking of the cars, caused by the sudden reduction of speed. This threw the plaintiff off from and in front of the car, two or more cars passing over him, causing the injury complained of. Thus far in the statement of the circumstances of the case, the evidence of both parties concurs.

The question presented on this record is one of fact,--whether the verdict is sustained by the evidence.

As to the condition of the engine,--it appears in the fore part of 1868, to have been materially defective, and much out of repair; but about the 1st of June, it went into the machine shop for repairs, and remained there until about the middle of August, and underwent what is called a “general overhauling,” and came out thoroughly repaired and...