Ill. Cent. R.R. Co. v. Welch

• Decision Date: 30 September 1869
• Citation: 52 Ill. 183,4 Am.Rep. 593,1869 WL 5409
• Parties: ILLINOIS CENTRAL RAILROAD COMPANYv.WILLIAM F. WELCH.
• Court: Illinois Supreme Court

52 Ill. 183

1869 WL 5409 (Ill.)

4 Am.Rep. 593

ILLINOIS CENTRAL RAILROAD COMPANY

v.WILLIAM F. WELCH.

Supreme Court of Illinois.

September Term, 1869.

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                ¦[Seal.]¦W. F. WELCH.” ¦
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APPEAL from the Circuit Court of Cook county; the Hon. E. S. WILLIAMS, Judge, presiding.

The facts in this case are fully stated in the opinion.

Mr. B. C. COOK, for the appellant.

Messrs. HIGGINS, SWETT & QUIGG, and Mr. I. N. ARNOLD, for the appellee. Mr. JUSTICE LAWRENCE delivered the opinion of the Court:

The facts of this case are stated with substantial correctness in one of the arguments by counsel for appellant, as follows:

The Illinois Central Railroad track at Mendota is about 18 inches from the edge of the awning, which projects from the station house, so that when a freight car stands upon the track the inside edge of the car is about even with the outer edge of the awning.

The awning is about 18 inches higher than the top of the car.

On the 28th day of February, 1866, Welch was a brakeman on a freight train running on that road. The cars were coming in to Mendota at a rate of speed about as fast as a man would walk. Welch was walking by the side of the train for the purpose of cutting off a portion of it. There was a ladder on each side of the car.

The plaintiff had pulled out the pin and disconnected a portion of the train from the engine, and was walking along beside the train when the engineer signaled for brakes. The plaintiff ran up the ladder on the car on the side next the station house, and before he reached the roof of the car he was struck by the projecting awning, and knocked from the car; his left arm was broken, and injured so that it had to be amputated. The left side of his head was bruised with a scalp wound over the same. Was treated by physicians until about the 1st of May, 1866.

It should be further stated that the attention of the division superintendent and division engineer had been some time previously called to the dangerous position of this awning.

When the engineer called for brakes, it was the duty of the appellee to mount the car for the purpose of applying them. He was therefore injured while in the performance of his duty in obedience to an order. The jury found a verdict for plaintiff for ten thousand dollars, on which the court rendered judgment. On this state of fact it is urged by counsel for appellant that appellee was not entitled to recover. They insist the rule of law to be, that a person engaging for a particular service, and knowing, or having full opportunity to know, all the conditions and circumstances of the service, assumes all risk arising therefrom, in the absence of fraud or concealment on the part of the master. As a general legal proposition this is undoubtedly true, but we are of opinion it does not cover the facts of this case. There are many freight depots and station houses upon the line of the Central Railway, and it would be preposterous in us to say, or to ask a jury to say, that a brakeman engaging in the service of the company must be held to know whether or not there may be one among them whose roof or awning so projects over the line of road that a brakeman on a freight train, in the performance of his duties, would be liable to be swept from the train by collision with it.

We held, in the Chicago & N. W. R. R. Co. v. Swett, 45 Ill. 201, that the corporation is bound to furnish to its servants safe materials and structures, and must, in the first instance, properly construct its road with all its necessary appurtenances. This, of course, includes the obligation to keep in proper repair. When the appellee entered the service of this company, he had a right to presume that it had, in these respects, discharged its obligations. The ordinary perils of railroad life he of course assumed, and also any special dangers arising from the peculiar condition of the road so far as he knew of their existence. For exposure to such dangers he would be supposed to demand and receive an increased compensation, and his exposure to them would be his voluntary act. But it would have been morally impossible for him to have ascertained the existence of all such special perils as this which caused the injury, and there is no reason for supposing that he had acquired such knowledge...