Ill. Cent. R.R. Co. v. Baches

• Decision Date: 30 September 1870
• Citation: 1870 WL 6435,55 Ill. 379
• Parties: ILLINOIS CENTRAL RAILROAD COMPANYv.MINNIE BACHES, Administratrix.
• Court: Illinois Supreme Court

55 Ill. 379

1870 WL 6435 (Ill.)

ILLINOIS CENTRAL RAILROAD COMPANY

v.MINNIE BACHES, Administratrix.

Supreme Court of Illinois.

September Term, 1870.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Lee county; the Hon. W. W. HEATON, Judge, presiding.

The opinion states the case.

Mr. J. M. BAILEY and Mr. B. C. COOK, for the appellants.

Mr. H. C. HYDE and Messrs. EUSTACE, BARGE & DIXON, for the appellee.

Mr. JUSTICE WALKER delivered the opinion of the Court:

This suit was brought by the widow, as the administratrix, of Jacob Baches, deceased, against appellants, to recover damages for causing his death. The venue was changed from Stephenson county, where the suit was commenced, to Lee county. At the December term, 1869, a trial was had by a jury, resulting in a verdict for $4000 against appellants, upon which a judgment was rendered, after overruling a motion for a new trial, and the record is brought to this court, and various errors assigned. It appears that deceased received the injuries complained of and from which he died, about the fourteenth of March, 1869, by being run upon by the cars on appellants' road, under the management and control of their servants, on a turn out track in the city of Freeport, known as “Manny's switch track.” He died of the injuries thus received the same evening, leaving a widow and an infant child surviving him. It appears appellee is administratrix of his estate.

The Manny switch track connects with appellants' main track, and they run nearly parallel from the point of intersection to the south side of Jackson street, a distance from the point of intersection of 238 feet, being but fifteen feet apart from centre to centre at that point, the course of both tracks from their junction being northwesterly. The switch, after crossing Jackson street, which is sixty-six feet wide, curves rapidly to the south, and passes up an alley sixteen feet wide, between Jackson and Spring streets, till it intersects with Adams street, where it terminates. The switch was built by the citizens of Freeport, but afterwards passed into the hands of Manny & Pattison. It appears from the evidence that this alley was used by the citizens to pass up and down, and that Jackson street was used for the same purpose, and in crossing from one side to the other.

On the evening of the injury, deceased, in company with Strata, in coming from their work, on entering the city, and as they were in the act of crossing the main track on the culvert, was stopped by a train going southward, the engine pushing before it two empty platform coal cars. After the engine had passed, deceased and Strata crossed the track, and passing on the Manny track, walked along the same into Jackson street, as appellee contends, and deceased was there overtaken and killed by the two coal cars, sent thither by what is called a running switch.

Appellants insist, that deceased was on the railroad track south of the street when he was struck, and hence was at a place where he had no right to be when he received the injury, while appellee insists, that the evidence shows that he was in the street, and where he had an undoubted right to travel, when the injury was inflicted. On this question the evidence is conflicting, and as the case must be passed upon by another jury, we deem it proper that we should not comment upon it, but leave it to be considered by the jury, unbiased by our opinion of its weight.

It appears that after being struck, deceased was dragged by the cars to the north side of the street. The engine driver, who was passing up the main track, on seeing the cars approaching deceased, sounded the whistle for brakes, but the brakeman on the coal cars did not check them up so as to save deceased from the injury.

It is, no doubt, necessary for railroad companies to transfer their cars from one track to another, so as to reach warehouses to receive and discharge freight and to make up trains. There are various modes in use by which such transfers are made, and observation teaches that some are safe, while others are hazardous to life, in cities and thoroughfares. The mode usually employed is to draw or push them by an engine, to which they are attached, and being thus constantly and entirely under the control of the engine driver, who has at his command well known signals to give warning of immediate danger, and can almost instantly stop his engine when progressing at a safe rate of speed. This is the most commonly adopted mode, because it is convenient for those operating the road, and when carefully performed is safer to the community. There are other safe modes, but perhaps less convenient and not so expeditious.

The mode adopted in this case is called a “running” or “flying switch.” It is performed by attaching the cars to be thrown upon the other track to the engine. The train is then put in motion, running toward the switch, and before it is reached, and when sufficient momentum to answer the purpose has been acquired, the engine is detached, passes on the main track, and after passing, the switch is changed, and the cars thus detached, by the momentum thus acquired, are carried along the side track to the point intended.

It seems, from the evidence in this case, that the cars thrown upon the Manny track had a momentum which carried them at the rate of five miles per hour when they struck deceased.

Was it negligence to thus switch these cars? It was done in a populous part of a city of ten or twelve thousand inhabitants; crossing a traveled street, and along an alley used by the public. To cut loose and send such a dangerous train into a city, across and along public thoroughfares, silent in its approach and dangerous in its force, seems to be a high degree of negligence. It would seem to be fraught with great danger to the lives of citizens. Persons are liable at all times to be on the streets, and have a right to be there, and a right to insist that those using dangerous engines and constructions on the streets, shall observe the degree of care which such a hazard renders necessary to secure the safety of persons on such highways, used in common by the public and the corporation.

Whatever theory witnesses may advance, the very nature of things, and the dependence one thing has upon another, render it perfectly apparent that such a mode of switching is, nor can it be otherwise than hazardous, when performed in a populous city, in the manner the evidence shows this to have been done. It was unaccompanied by the controling power of the engine. Can any one entertain the shadow of a doubt, that had the cars been drawn on the track by the engine, the driver, if at all attentive to his duty, could have checked up the train in time to have saved deceased from injury, had the latter failed to regard the usual signals. It seems to us almost self-evident that he could. Deceased, having seen the engine and cars go down the road, did not, in all probability, suppose the cars had been detached, and it did not occur to him that the signals given by the engine on the other track were intended to warn him of danger, but he probably supposed they were to warn persons on the other track. But had the cars been drawn by the engine, and the signal given behind him, he would almost certainly have heeded it.

It is true, in this case there was a brakeman on these cars, but it appears he was not at the brakes to respond to the signal of “down brakes,”...