Ill. Cent. R.R. Co. v. Hammer

• Decision Date: 30 June 1877
• Parties: ILLINOIS CENTRAL RAILROAD COMPANYv.JOSEPH HAMMER.
• Court: Illinois Supreme Court

85 Ill. 526

1877 WL 9609 (Ill.)

ILLINOIS CENTRAL RAILROAD COMPANY

v.JOSEPH HAMMER.

Supreme Court of Illinois.

June Term, 1877.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Effingham county; the Hon. JAMES C. ALLEN, Judge, presiding.

Mr. GEORGE W. WALL, for the appellant.

Messrs. GILMORE & WHITE, for the appellee.

Mr. JUSTICE DICKEY delivered the opinion of the Court:

Joseph Hammer recovered in the circuit court judgment against the railroad company for damages for an injury to his person, caused by a moving car of the company, which struck him while standing on the railroad track.

The servants of the company were “switching.” South of the place of the injury is a switch, connecting a side-track with the principal track. While Hammer was passing on the principal track, his attention was attracted to an engine south of him, near the switch, and coming north. He observed that it took the main-track, and he stepped on the side-track to let the engine pass. It turned out that a car, (which had been detached, south of the switch, from the rear of the engine while in motion, and had been switched from the main-track to the side-track,) came rapidly northward on the side-track, approaching Hammer, while the engine passed to the north, on the principal track. The attention of Hammer was fixed upon the engine, and though it had passed him some distance before the car struck him, his attention was not called to the approaching car until too late for escape.

There is proof tending to show that the employees of the railroad company saw Hammer on the side-track so long before the collision, that, by prompt action, the car might have been stopped before reaching Hammer. The testimony tends to show that these employees had reason to believe that Hammer was about to get off the track, and did not have reason to think otherwise until it was too late to avoid the injury by stopping the car. There was also evidence tending to rebut these positions.

Upon this state of proof as to this part of the case, the court, at the request of plaintiff, charged the jury, that “if, * * * after the servants of defendant saw the plaintiff in danger, they might (by delaying the business of the road, and by the use of such a high degree of care as, under the circumstances, it was reasonable to have used,) have avoided and prevented the injury, * * * then plaintiff may recover, even if guilty of slight negligence,” etc.

This instruction can not be approved. It may well be that the...