Illinois Cent. R. Co. v. Reardon

• Decision Date: 11 October 1895
• Citation: 157 Ill. 372,41 N.E. 871
• Parties: ILLINOIS CENT. R. CO. v. REARDON.
• Court: Illinois Supreme Court

157 Ill. 372

41 N.E. 871

ILLINOIS CENT. R. CO.

v.REARDON.¹

Supreme Court of Illinois.

Oct. 11, 1895.

Appeal from appellate court, Second district.

Action on the case by Cornelius Reardon, administrator, against the Illinois Central Railroad Company. Plaintiff obtained judgment, which was affirmed by the appellate court. 56 Ill. App. 542. Defendant appeals. Affirmed.

R. H. McClellan, for appellant.

D., T. J. & J. M. Sheean, for appellee.

BAILEY, J.

This was an action on the case brought by Cornelius Reardon, administrator of the estate of Frank Reardon, deceased, to recover damages for the death of the plaintiff's intestate. The case was tried on a plea of ‘Not guilty,’ and the jury, by their verdict, found the issues in favor of the plaintiff, and assessed the plaintiff's damages at $2,300. For that sum and costs, the court, after overruling the defendant's motion for a new trial, gave judgment in favor of the plaintiff. That judgment has been affirmed by the appellate court on appeal, and this appeal is from the judgment of affirmance.

Frank Reardon, the plaintiff's intestate, was killed August 15, 1892, while endeavoring to couple cars in the defendant's yard, in the city of Freeport. The switch yard where the accident occurred contains some 11 tracks, built on a descending grade of over 20 feet to the mile, so that unsecured cars running from one end of the yard to the other would, from their own weight, attain considerable speed. Prior to August 13, 1892, two engines and their crews, each consisting of a foreman and two helpers, attended to the switching in the yard. On the evening of that day, each crew seems to have been reduced to a foreman and one helper, and for that reason the foreman of each crew refused to go out with his engine. William J. Reardon, a brother of the deceased, was one of the helpers and joined in the refusal. He and his foreman were thereupon discharged from the defendant's service by the general yard master. The foreman of the other engine was then given a full crew, and, to make up that crew, Frank Reardon, then a little less than 19 years of age, was employed as a helper. He worked that night and the night following, and, while in the performance of his duties on the third night, met with the accident which caused his death. In the morning of the day on which he was killed, there came to the defendant's yards at Freeport a car loaded with assorted timbers, the property of the defendant, the timbers being loaded on a coal car, without any means for preventing their shifting about. The timbers had shifted so as to extend over one end of the caboose to which the car was attached, and the car was thereupon delivered in the yard for the purpose of reloading. During the day it was reloaded, and returned back into service, but no means were used to prevent the timbers from against shifting; and, in the process of handling the car that evening, the timbers were again shifted or moved from their place so as to extend over the end of the car in such a way as to make the operation of coupling onto another car extremely dangerous. While the car was in this condition, standing on the track, the deceased attempted to couple it to some cars which were kicked up against it. He was on the cars being kicked up the track, and, when approaching the car loaded with lumber, he jumped off, and ran ahead to make the coupling, and, while attempting to couple the cars together, he was caught by the projecting timbers, and killed. The negligence charged against the defendant consisted (1) in loading the car with timbers in the careless and daugerous manner above stated, and in attempting to transport the timber in that condition; (2) in employing the deceased, a minor, unfamiliar with the dangers surrounding the situation, and without the consent of his parent or guardian; and (3) in failing to instruct him as to the unusual danger of the work which he was thus employed to do. On the other hand, the defendant seeks to charge deceased with contributory negligence in getting off the car on which he was riding, and running ahead, for the purpose of effecting the coupling of the cars, and in the manner in which he attempted to couple them together.

Whether the defendant is, under the evidence, chargeable with negligence as is alleged, or the deceased with contributory negligence, are questions of fact, as to which the decision of the appellate court is conclusive. These questions, therefore, are not open for decision in this court. We are therefore compelled to assume that the defendant is shown by the evidence to have been guilty of negligence, causing the death of the deceased, as charged; and that the deceased was free from contributory negligence.

The learned counsel for the defendant, while admitting the conclusiveness of the judgment of the appellate court as to the facts, insists, notwithstanding, that it is proper for this court to consider all the evidence; and, if it should come to the conclusion that the facts as found in the appellate court do not constitute a cause of action, the judgment should be reversed. We are a little at a loss to know precisely how counsel intends to be understood. The facts which we must assume have been found by the appellate court are those ultimate facts upon which the verdict of the jury necessarily rests; namely, that the deceased was killed by the negligence of the defendant in manner and form as charged in the declaration, and that the deceased was free from contributory negligence. But the reasoning of counsel, if we understand him, amounts to this: That we should look at the evidence, and if, in our opinion, it fails to warrant a finding of the ultimate facts above stated, we should hold that no cause of action is shown, and reverse the judgment for that reason. To do this would, in all its essential features,...