Devine v. Delano

• Citation: 272 Ill. 166,111 N.E. 742
• Decision Date: 16 February 1916
• Docket Number: No. 10490.,10490.
• Parties: DEVINE v. DELANO et al.
• Court: Supreme Court of Illinois

272 Ill. 166

111 N.E. 742

DEVINE

v.DELANO et al.

No. 10490.

Supreme Court of Illinois.

Feb. 16, 1916.

Error to Circuit Court, Cook County; John H. Fornoff, Judge.

Action by John F. Devine, administrator, against Frederic A. Delano and others, receivers. To review a judgment for plaintiff, defendants bring error. Judgment affirmed.

Zane, Morse & McKinney, of Chicago (James L. Minnis, of St. Louis, Mo., of counsel), for plaintiffs in error.

James C. McShane, of Chicago, for defendant in error.

CARTER, J.

This was an action on the case brought in the circuit court of Cook county to recover damages for the death of the defendant in error's intestate. On a trial before a jury a verdict was returned in favor of the defendant in error, and judgment was entered on the verdict. The cause was brought directly to this court because the validity of the Workmen's Compensation Act of 1911 (Laws 1911, p. 315) was questioned by plaintiffs in error; our decision on the constitutionality of that act not having been published at the time this writ of error was sued out.

The original declaration contained two counts. The second count set out that the Wabash Railroad Company, of which plaintiffs in error were receivers, operated a railroad extending from Chicago into and through Decatur, Ill., and that plaintiff's intestate was employed by them as a switchman, working at Decatur; that near a track leading from said railroad into a large manufacturing plant, and over which plaintiffs in error switched trains between said railroad and said plant by means of a switch engine and switching crew, stood a post immediately alongside of the track and at the entrance of the plant which was so close to the track that it was liable to brush or knock a switchman from the side of an engine or train passing; that the track was thereby rendered unsafe and unsuitable for switching purposes and exposed those engaged therein to great and unusual danger; that the receivers knew, or could have known by the exercise of ordinary care, these facts, but the deceased, Bartlett, through no want of ordinary care on his part, did not know of the dangerous proximity of the post and track or of the danger therefrom; that the receivers knew, or by the exercise of ordinary care could have known, that the deceased was uninformed of the dangerous proximity of the post and track and of the danger therefrom; that the receivers wrongfully and negligently required Bartlett, as switchman, to switch with an engine and cars then operating along said track past said post; and that while Bartlett, in the discharge of his duties as switchman, in the exercise of ordinary care, was riding upon the side of said train so operated past said post, he was thereby knocked from the said train upon the ground and sustained serious bodily injuries, from which he died. The first count, as amended, set out substantially the same facts, and further alleged that the said railroad extended through the state of Missouri and other states, and that the receivers were engaged as common carriers in interstate commerce. At the close of the trial it was stipulated that the plaintiffs in error were not engaged, at the time of the accident, in interstate commerce, and this eliminated the first count. A few months before the trial defendant in error filed an additional count, in which were set out facts substantially the same as in the second count but containing the additional averment that plaintiffs in error, before the death of Bartlett, were regularly engaged in, and deceased as their servant was regularly employed in, the kind of business and work to which the Workmen's Compensation Act of 1911 applied, but that plaintiffs in error had elected, prior to the death of Bartlett, not to be governed by said act. The case was tried on said second count and this additional count, and the verdict must be sustained, if at all, under one or both of these counts.

Defendant in error's intestate, Cyrus E. Bartlett, was killed on October 23, 1912, at Decatur, Ill., on or near the tracks of the Wabash Railroad Company, then being operated by plaintiffs in error, its duly appointed receivers. Bartlett lost his life somewhere near a gateway opening on the tracks of said Wabash Railroad Company into the plant of the A. E. Staley Company, a starch manufacturing establishment located in Decatur. This gateway was near the northeastern corner of the factory grounds. Just north of this plant are situated numerous tracks of the said railroad company, running in an easterly and westerly direction. A switch track left the main tracks a little distance northeast of said starch works, and a short distance beyond the main tracks was itself divided into two tracks, which, continuing in slightly diverging lines, ran in a slightly southwesterly direction, each through its gateway and onto the grounds of said A. E. Staley Company. The more northerly of these two switch tracks was known as the ‘corn track.’ These two tracks joined near the western side of the plant. The witnesses, in referring to them, spoke of them as running east and west, and we shall do the same in this opinion, though, as a matter of fact, they ran a little north of east and south of west. The gateway stood within the property lines of the starch works. Each gate had two wings. The southerly section or wing of the southerly gate was hinged to the post complained of, and swung over the southerly half of the southerly track. The northerly wing of that gate was hinged on a post standing in the clear space between the north and south switch tracks. The clearance or space between the side of an ordinary car and the southerly end of the gate where it was hinged to the post complained of, when the gate was opened, was about 8 or 10 inches. The gates and track had been in position for a year or two. Bartlett had been working for the receivers three or four days, with the same engine and the same crew. He was apparently an experienced switchman. The switching crew consisted of five men: Davis, the engineer; Jackson, the fireman; Barnett, the foreman, sometimes called conductor; and Northway and Bartlett, switchmen. This switching crew had been in and out of the starch works several times during the three or four days Bartlett worked for the receivers.

On the day in question the switching crew had come into the plant and placed some cars of coal, and at the time of the accident their train was running east along the south switch track. The engine was backing, the tender being towards the east and the front end of the engine towards the west. One or two cars west of the engine were being pulled out and two empty coal cars pushed out east of the tender, these latter forming the head of the train. On the top of the fence around the plant, two or more strands of wire were stretched. The ends and sides of the coal cars extended up about the height of the topmost wire. While the train was thus moving east, the engineer was on the north side of the cab and the fireman on the south side. Switchman Northway was standing on the north side of the footboard on the front or west end of the engine. Barnett, the foreman, and Bartlett were on the east end of the most easterly car, facing east-the direction in which the train was moving. The evidence shows that at this time there was nothing to obstruct Bartlett's view of the gateway and post. The part of the car upon which they were standing, called in the evidence the ‘sill,’ projected 6 inches or more beyond the end of the coal car and was about 4 feet above the rails. Barnett was on the north side of the sill and Bartlett on the south. Between 20 and 150 feet west of the gate, remarking to Bartlett that they would do some switching on the corn track before going to dinner, Barnett dropped off the car on the north side of the train to plan the handling of the switching on the corn track. This was the last that Bartlett was seen alive. At this time Bartlett was standing with both arms thrown back of him over the end board of the coal car, which came up to about his armpits. Jackson, the fireman, saw Bartlett standing in this position about 600 feet west of the gates. The next Jackson saw of Bartlett was apparently about opposite the gates, when he saw something being dragged or rolled along the ground by the train some few feet east of the engine cab. He saw, as they passed over the object, that it was a man, but did not know it was Bartlett. He notified Davis, the engineer. The train passed completely over the body, went on, and switched back north on the corn track before Jackson or the engineer returned to where the body lay. When Bartlett was found, he was lying close to the south rail of the south track, about opposite the east end of the open south wing of the gate. His feet were towards the east and his body doubled up, the head being between the legs. His back was broken. Jackson first saw the body as it was being rolled or dragged, between the gate and the engine cab. Davis, the engineer, did not see it until they had switched back onto the corn track.

Jackson testified that after the accident he saw Bartlett's hat lying just inside the fence of the starch works, opposite the post. Davis testified that he saw Bartlett's switchman's club lying somewhere around one of the posts of the gate. Barnett, the foreman, testified that he saw the club lying somewhere near the gate and close to it, but whether inside or out he could not tell; that he saw the hat lying 7 or 10 feet east of the gate post. There was no testimony as to any fragments of clothing being caught on the barbed wire at the top of the fence. The foreman testified he did not tell Bartlett to throw the switch in order to run in onto the corn track, but after dropping off the train he gave a sign to Northway, the other switchman, to come in on that track, as Northway passed him riding on the footboard of the engine. The switch was, in fact...