Ill. Cent. R.R. Co. v. Jewell

• Decision Date: 30 September 1867
• Citation: 92 Am.Dec. 240,46 Ill. 99,1867 WL 5339
• Parties: ILLINOIS CENTRAL RAILROAD COMPANYv.MARIA B. JEWELL, Admr'x, etc.
• Court: Illinois Supreme Court

46 Ill. 99

1867 WL 5339 (Ill.)

92 Am.Dec. 240

ILLINOIS CENTRAL RAILROAD COMPANY

v.MARIA B. JEWELL, Admr'x, etc.

Supreme Court of Illinois.

September Term, 1867.

APPEAL from the Circuit Court of Cook county; the Hon. ERASTUS S. WILLIAMS, Judge, presiding.

The opinion states the case.

Messrs. MCALLISTER, JEWETT & JACKSON and Mr. B. C. COOK, for the appellants.

Mr. JOHN LYLE KING, for the appellee.

Mr. CHIEF JUSTICE BREESE delivered the opinion of the Court:

This was an action on the case brought by Maria B. Jewell, as administratrix of William B. Jewell, in the Circuit Court of Cook county, against the Illinois Central Railroad Company, to recover damages for the death of her son, the intestate, on the allegation of negligence in the company in permitting the use of a defective brake on the car in which the deceased was employed as a brakeman, and on the further allegation, of the employment of an incompetent engineer.

There was much evidence on these points, and the jury found a verdict for the plaintiff. The court rendered a judgment on the verdict, a motion for a new trial having been overruled.

To reverse this judgment, the defendants bring the record here by appeal, and assign various errors, questioning the correctness of the instructions given for the plaintiff, and the refusal to give instructions asked by the defendants, and in modifying those given in their behalf. They also urge the refusal of the court to grant a new trial as error.

The theory of the plaintiff below was, that the accident was caused by a defect in the brake, the nut which kept the wheel in its place on the upright shaft having become loose, and in the effort to work the brake, the wheel came off and the deceased was thrown to the ground. The fact that the brakeman was found dead on the track, with the wheel or brake-head near him, and the brake-head of the car on which he was employed being gone, gives support to this view.

We are not inclined to hold that this was such negligence as to charge the company, for the condition of the brake was matter under the special care of the brakeman, and it was his business, at all times, to see that it was in a fit condition for use, and report defects to the company. The company are not to suffer for his negligence of a plain duty.

On the other ground, that the company employed an incompetent engine-driver, the evidence is conclusive on that point, that Chapman was incompetent, and known to be so, by the company. Booth, who seemed to...