Galloway v. Chicago. R.I.&P. Ry. Co.

• Decision Date: 04 June 1908
• Court: Illinois Supreme Court
• Parties: GALLOWAY v. CHICAGO. R. I. & P. RY. CO.

234 Ill. 474

84 N.E. 1067

GALLOWAY

v.CHICAGO. R. I. & P. RY. CO.

Supreme Court of Illinois.

April 23, 1908.

Rehearing Denied June 4, 1908.

Appeal from Appellate Court, First District, on Appeal from Superior Court, Cook County; A. H. Frost, Judge.

Action by Clarence W. Galloway, by his next friend, against the Chicago, Rock Island & Pacific Railway Company for personal injuries. From a judgment for plaintiff, defendant appeals. Reversed and remanded.M. L. Bell (Benj. S. Cable, of counsel), for appellant.

Charles M. Foell, Morse Ives, and Earl J. Walker, for appellee.

This is an appeal by the Chicago, Rock Island & Pacific Railway Company from a judgment of the Appellate Court for the First District affirming a judgment of the superior court of Cook county recovered by Clarence W. Galloway, appellee, against appellant, in an action on the case brought in his name by Marie L. Galloway, the mother and next friend of appellee, for personal injuries.

The declaration consists of four counts, by which it is alleged that on November 24, 1904, appellant had located at Blue Island, in Cook county, Ill., a roundhouse and turntable, used for the purpose of storing and turning engines then in use by said company along the line of its railroad; that the appellee, who was employed to operate the turntable, was a youth without experience and knowledge of the dangers incident to working around and about said turntable, and that it was the duty of appellant in employing him to fully inform him, before or at the time of his employment, of all the dangers attendant upon the work of operating said turntable, which appellant negligently failed to do; that the turntable was negligently constructed, and that appellant negligently allowed the lever operating the brake on the turntable to be and remain out of repair; that the turntable was negligently constructed, in that the ties on which the track rested were laid with just space enough between to allow the foot or leg of one passing over the turntable to be caught and held fast; that appellee, by reason of the negligence charged, while assisting in backing an engine upon the turntable, stepped between two of the ties, where his foot was caught and held fast, and his leg was then cut off by an engine passing over him before he cound escape. To the declaration appellant pleaded the general issue. Upon the trial the court, at the close of all the evidence, denied the motion of appellant for a directed verdict. The jury fixed appellee's damages at $9,000. Motions for a new trial and in arrest of judgment were overruled, and judgment entered upon the verdict.

The turntable in question was 75 feet in length and about 12 feet in width. It supported a single standard-gauge railroad track, the rails of which were placed on ties 8 inches square, set from 2 1/2 to 4 inches apart. The ties rested upon steel girders. The ends of the ties extended beyond the rails on each side of the track between 3 and 4 feet, and this space without the rails was covered with planks the entire length of the table. Between the rails, however, there was no covering over the ties, and the spaces between the ties were left open. The turntable was operated by a gasoline engine and certain levers which were upon and attached to the table, and which moved with the table. Passing upon the table from the operating end, the engine and levers were located upon the right. This machinery was covered by a small shanty built upon the table, the door opening into which was in the side of the building next to the track and about three feet from the end of the table. When an engine approached the turntable, it was the duty of the operator to first ‘spot’ the table, or move it so that the track upon the table would be in line with the track on which the engine was standing. The table was always turned so that the end upon which the building was constructed would be next to the approaching engine. After the table was so ‘spotted,’ the operator would signal the hostler of the engine to move it onto the table, and, after that was done, the table would be turned so as to permit the engine to be moved from the table upon the track desired. If the engine approaching the table was moving with the front end toward the turntable, the signal to the hostler, who always occupied a position on the right side of the engine, could be given by the turntable operator from the door of the shanty, but, if the engine was backing up to the turntable, it was necessary for the operator to stand on the opposite side of the track to give the signal. The hostler being on the right side of the engine would be on the left side of the track as the engine backed up to the turntable, and the tender would prevent him seeing the turntable operator if the latter remained on the right-hand side of the turntable.

Appellee was employed by appellant through the witness Coffman, hereinafter mentioned, as night operator of this table. His duties began at 6 o'clock in the evening and continued until the same hour in the morning. At the time of his injury he was 20 years and 4 months of age, a boy of ordinary intelligence, and of at least ordinary experience for a person of his age. He had lived in Chicago or in the suburbs of that city practically all his life. He had worked for some time in a stamping mill. Afterwards he worked for a year and a half in a boiler shop, and later, prior to his employment by appellant, he worked for a year and a half in a foundry. On November 14, 1904, he began work for appellant, and during the first three nights of his employment Coffman, who had operated the table before appellee began work, stayed with him and instructed him in regard to his duties. Among other things, according to the testimony of Coffman and of appellee, Coffman at that time told him to hold down a certain lever in the shanty controlling the brake on the turntable when an engine was coming upon the table to prevent the brake which held the turntable in place being loosened by the jar of the engine, which would result in the table moving and derailing the engine. They also testified that the necessity for holding this lever arose from the fact that it was out of repair. The ties between the rails were somewhat oily from the drippings of the locomotives. There were 30 stalls in the roundhouse at this place and 25 or 30 engines would pass over the turntable every night. Between 9 and 10 o'clock in the evening of November 24, 1904, a small switch engine backed up to within 30 or 40 feet of the turntable and stopped for a signal from Galloway. The table was ‘spotted’ by Galloway, who operated the machinery in the shanty. He then stepped over to the opposite side of the track from the shanty, and with his lantern signaled the hostler to come on, and then started across the track to the shanty. While attempting to cross one of his feet slipped down between the ties on the table, and he was unable to extricate it in time to prevent his leg being run over and cut off by the engine as it backed upon the turntable. When appellee attempted to cross the track, the only lights burning in that vicinity were...