Illinois Cent. R. Co. v. Fitzpatrick

Citation81 N.E. 529,227 Ill. 478
PartiesILLINOIS CENT. R. CO. v. FITZPATRICK.
Decision Date18 June 1907
CourtSupreme Court of Illinois

OPINION TEXT STARTS HERE

Appeal from Appellate Court, First District.

Action by Esther Fitzpatrick, administratrix, against the Illinois Central Railroad Company. From a judgment of the Appellate Court affirming a judgment for plaintiff, defendant appeals. Reversed and remanded.

Calhoun, Lyford & Sheean (John G. Drennan, of counsel), for appellant.

Hummer, Murphy & McDonald, for appellee.

Esther Fitzpatrick, as administratrix of the estate of James T. Fitzpatrick brought an action of case against the Illinois Central Railroad Company for wrongfully and negligently causing the death of her brother, James T. Fitzpatrick. Plaintiff below recovered a judgment for $5,000 in the superior court of Cook county, which has been affirmed by the Appellate Court for the First District. The Illinois Central Railroad Company has prosecuted a further appeal to this court, and seeks a reversal of the judgment on the following grounds: First, because the trial court refused to grant a peremptory instruction requiring the jury to find appellant not guilty; and, second, because the court gave erroneous and misleading instructions to the jury.

The declaration, aside from the formal averments, charged that the deceased was in the employ of appellant as switchman, and in the discharge of his duties was obliged to go upon a certain switch track with the engine and cars; that it was the duty of appellant to keep and maintain said switch track in suitable and safe condition and free from obstructions, embankments, and posts that would endanger the life of the deceased while engaged in his duties; that appellant neglected this duty and allowed a certain obstruction, embankment, and post, of the height of six feet, to be and remain in close proximity to the switching track, so that when the cars passed the same there was only a space of about eight inches between the cars and the said structure, of which appellant had notice, or should have had, and that the deceased was not aware of or informed by appellant of the existence or close proximity of the aforesaid structure or the usual risks and dangers in using the said switch tracks, whereby he was subjected to unusual risks and dangers not contemplated by his contract of employment; that deceased, while discharging his duties in and about the coupling and uncoupling of moving cars or of placing cars upon said track, and exercising due care and caution for his own safety, was, through the negligence aforesaid, caught between the structure aforesaid and one of the cars of appellant and killed. To this declaration a plea of the general issue was interposed.

The material facts, so far as the same are necessary in the determination of the questions here involved, are substantially as follows: Appellant's right of way at the point in question runs north and south. East of the right of way and south of Seventy-Fourth street, in the city of Chicago, a foundry building belonging to the Skein & Axle Company is located. This building is inclosed by fences and gates. A private switch belonging to the foundry company runs from the main track of appellant into the foundry yard, which it enters through a gate that was usually locked. The only use to which this switch was put was to take empty cars in and bring out cars loaded with the products of the foundry, and when any switching was to be done on this track it was necessary to secure the key from the foundry people. Inside the foundry yard the switch track was inclosed on the sides by a dirt embankment about four feet and six inches in height, the top of which was used for loading and unloading scrap or pig iron for use in the foundry. This dirt embankment had a perpendicular face next to the railroad track, and the dirt was held in place by nailing boards to posts four or five inches in size, which were driven in the ground. The distance from the plank attached to the post to the rail of the switch on the side where the injury occurred was about two feet, except at one point, where the pressure of the earth and heavy material placed upon the embankment had caused one post to lean toward the railroad track until the distance between the top of the leaning post and the body of a car standing on the track opposite it was from six to nine inches. The evidence shows that the car which struck the deceased had a platform on the end and a sill that projected out one or two inches further than the side of the car and a staple driven into the end of the sill which extended out four inches further and to within a few inches of the top of the leaning post. Deceased was 22 years of age, and had been employed by appellant as switchman for two weeks, but had been only two days with the crew he was working with on the day of his injury. He had never been required to do any coupling or uncoupling or other work for appellant on the inclosed switchtrackof the foundry company. Prior to his employment as switchman, deceased had been employed by defendant and other railroads as a telegraph operator. The crew with which deceased was working on the day of the injury was composed of John Brennan foreman, Mike Huber, engineer, George Edmunds, fireman, John Lunney and deceased, switchmen. About 4 or 5 o'clock on the afternoon of July 2, 1902, deceased, with the switching crew above mentioned, went to the foundry yard. The foreman told deceased, before they went to the yard, that he intended to take out all the empties. The engine went in the foundry yard light and coupled onto two box cars and proceeded further north where there...

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5 cases
  • Webber v. Terminal R. Ass'n of St. Louis
    • United States
    • Missouri Supreme Court
    • 19 Abril 1934
    ... ... Louis Cordage Co. v ... Miller, 126 F. 495, 61 C. C. A. 477, 63 L. R. A. 551; ... Ill. Cent. Co. v. Fitzpatrick, 227 Ill. 478, 81 N.E ... 527; Grandpre v. Railroad Co., 46 S.D. 32, 190 ... Mississippi River between Missouri and Illinois. The ... applicability of the Federal Act was admitted by defendant ... Plaintiff had a verdict ... ...
  • Devine v. Delano
    • United States
    • Illinois Supreme Court
    • 16 Febrero 1916
  • Henry Wrape Company v. Barrentine
    • United States
    • Arkansas Supreme Court
    • 7 Abril 1919
    ...82 Id. 11; 161 Mass. 153; 68 Ark. 319; 56 Id. 237. See also 77 Ark. 375; 99 Id. 377; 104 Id. 489; 18 R. C. L. 683, § 172; 126 F. 501; 81 N.E. 529; 206 S.W. 2. The court erred in giving instruction No. 1 requested by plaintiff (1) because it assumed that plaintiff was injured upon the premis......
  • Klofski v. R.R. Supply Co.
    • United States
    • Illinois Supreme Court
    • 18 Junio 1908
    ...dangers arising from the negligence of the master, however gross the fault may be. The case of Illinois Central Railroad Co. v. Fitzpatrick, 227 Ill. 478, 81 N. E. 529,118 Am. St. Rep. 280, is an illustration of the rule that the servant may, under some circumstances, assume dangers arising......
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