Ill. Cent. R.R. Co. v. Shultz

• Decision Date: 30 June 1872
• Citation: 1872 WL 8293,64 Ill. 172
• Parties: ILLINOIS CENTRAL RAILROAD COMPANYv.NORMAN L. SHULTZ.
• Court: Illinois Supreme Court

64 Ill. 172

1872 WL 8293 (Ill.)

ILLINOIS CENTRAL RAILROAD COMPANY

v.NORMAN L. SHULTZ.

Supreme Court of Illinois.

June Term, 1872.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Marion county; the Hon. SILAS L. BRYAN, Judge, presiding.

This was an action on the case, brought in the court below by Shultz against the railroad company, to recover damages for personal injuries received by the plaintiff by reason, as alleged, of the negligence of the servants of the company.

It is averred in the declaration, substantially, that the railroad company had a side-track running out from the road on the east side thereof, in the city of Centralia, which was used by the company as a place to set in cars laden with coal which were transferred by the company to the city, there to be unloaded; that at the time of the accident the plaintiff was unloading coal from a car placed thereon by the company for the purpose of being unloaded, the plaintiff being on the car engaged in transferring coal therefrom to a wagon having a team of horses attached, standing by the side of the car; that the plaintiff being so engaged, with his back toward the point where the side-track joined the main track of the road, and “while so engaged in unloading and transferring coal as aforesaid, using all proper care and diligence,” the servants of the company having in charge a locomotive engine, entered the side-track and coupled on or attached the locomotive to some cars on the side-track, and, without ringing the bell or sounding the whistle, or any other signal from the locomotive and cars, attached in so careless a manner upon the other cars negligently left standing on the side-track by the servants of the company as to set said cars violently in motion, and said cars so set in motion by the negligence of the servants of the company were driven with such force and violence against the car so occupied as aforesaid by the plaintiff as to throw him off the car with great violence partly against and on the wagon aforesaid. It was further averred that the great noise and concussion frightened the horses attached to the wagon, and they started just as plaintiff struck the wagon, and he was thrown to the ground with great force and violence, and the wagon passed over his ankle, breaking and crushing it, and causing other serious personal injuries, etc.

The company pleaded the general issue.

The defendant excepted to giving of the following, among other, instructions, given for the plaintiff:

1--The court instructs the jury for the piaintiff, that, if you believe from the proof that the plaintiff was authorized by the agents of defendant to unload the car of coal on the side-track, and that while he was so engaged, and while he was exercising ordinary care, the agents of company caused another car to run against the car on which he was at work, in a careless manner, and that plaintiff was thrown from the car and iujured in his limbs or person, as charged in the declaration, you should find for plaintiff.

2--That, in making up your verdict in this case, you have the right to consider all the circumstances in the case; and if you believe, from the proof, that defendant was guilty of considerable negligence, and plaintiff was guilty of but little negligence, then you must find defendant guilty.

4--That, if you believe, from the proof, that the engineer of the defendant saw the plaintiff, and could have avoided injuring plaintiff, by the exercise of proper caution, and the engineer did not exercise proper caution, but carelessly run another car against the car where plaintiff was at work, as alleged in declaration, you should find defendant guilty, if you can find plaintiff received injury from such carelessness.

The court refused the following instructions asked by defendant:

1--The court instructs the jury that the failure to ring a bell on the engine in question would not of itself constitute such negligence as would authorize a recovery; nor would the fact that the empty cars had not the brakes set, constitute such negligence; nor would the fact that the engine accidently pushed an empty car against the car of the plaintiff, constitute such...