Foster v. the Chicago
| Decision Date | 30 September 1876 |
| Citation | 84 Ill. 164,1876 WL 10463 |
| Parties | JOHN FOSTERv.THE CHICAGO AND ALTON RAILROAD CO. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
WRIT OF ERROR to the Circuit Court of Cook county; the Hon. JOHN G. ROGERS, Judge, presiding.
Mr. JOHN W. SHOWALTER, for the plaintiff in error.
Mr. C. BECKWITH, and Messrs. MONROE, BISBEE & BALL, for the defendant in error.
Plaintiff in error brought this action to recover damages from defendant in error, for the loss of his leg. Plaintiff in error was, on the 12th of June, 1873, and had been for some time, in the employment of the Chicago, Danville and Vincennes Railroad Company, as a switchman. The accident occurred on that day, whilst he was engaged in coupling cars on the road. Previous to that time, that company had been, by arrangement, allowed to run its cars over the road of defendant in error, from Bridgeport to Chicago, the former company to assume all risks and to conform to all the rules and regulations of the road of defendant in error. Plaintiff in error was shown, by the evidence, to have been a railroad man, and had been engaged, to a greater or less extent, in coupling cars since 1867. He had been over the part of the road where the accident occurred, twice each day, for about six weeks, and was familiar with the track and its condition.
Plaintiff in error sustained the injury near the center of a short curve. Around this curve a guard rail was laid, which is used to prevent the car wheels from mounting the rail on the outside of the curve and running from the track. The trucks, to which the wheels are attached, are a solid frame, and, in running around the curve, the wheels run in a straight line. They go straight until their flanges strike the rail, when they are deflected, and then they go straight again until they strike the rail, thus rendering the guard rail on the inner or short line of the curve indispensable to prevent trains, running at a rapid rate of speed, from jumping the track.
Experience has shown that this third, or guard rail, when properly placed, is best calculated to accomplish the purpose. In its construction, the guard rail, it is obvious, must not be so placed as to leave no play for the flange of the car wheel, as trains running at a rapid rate would incline to jump the track or spread the rails; and if the end of a guard rail, from any cause, should become slightly displaced, and project towards the track rail, the wheel would mount it and throw the train from the track.
The thickness of the flange of the car wheel is designed to be one and five-eighths inches, and it necessarily runs between the rail on the short line of the curve and the guard rail, which is usually a little higher than the track rail. This was a compromise track, to accommodate cars varying in width from four feet eight and one-half inches to four feet nine and one-quarter inches, which, it is claimed, requires more space between the track rail and the guard than it would had all cars passing over it been of the same width. The rails are wider at the base and top than in the space between those points, thus creating a considerable concavity midway between the top and bottom.
Whilst coupling cars, he being on the shorter side of the curve, the foot of plaintiff in error slipped into the space between the track rail and the guard rail, and, becoming fast so he could not extricate it, the car ran over it, and crushed and mangled it to such an extent that his leg had to be amputated, and he sues to recover damages, and claims that there was gross negligence in constructing the track at this curve.
It is obvious that the concavity of the two rails, placed opposite and near each other, renders it dangerous to...
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