Illinois Cent. R. Co. v. Campbell

• Decision Date: 08 November 1897
• Parties: ILLINOIS CENT. R. CO. v. CAMPBELL.
• Court: Illinois Supreme Court

170 Ill. 163

49 N.E. 314

ILLINOIS CENT. R. CO.

v.CAMPBELL.

Supreme Court of Illinois.

Nov. 8, 1897.

Appeal from appellate court, First district.

Action by J. R. Campbell against the Illinois Central Railroad Company for personal injuries caused by defendant's negligence. From a judgment of the appellate court (58 Ill. App. 275) affirming a judgment for plaintiff, defendant appeals. Reversed.

Carter and Wilkin, JJ., dissenting.

S. F. Andrews, for appellant.

E. R. Woodle, for appellee.

This is an action on the case, brought on April 27, 1892, in the superior court of Cook county, by Campbell, the appellee, against the Illinois Central Railroad Company, appellant, to recover damages for a personal injury suffered by him on May 5, 1891, while in the employment of appellant as a switchman. The original declaration, which consisted of but a single count, alleged that the plaintiff, while employed by defendant in its freight yards at the foot of Randolph street, in the city of Chicago, and while with due care and diligence in discharge of his duty in attempting to couple certain cars in said yards in the nighttime, caught his foot in an open and unblocked frog in the railroad track of defendant, and before he could extricate the same from said frog was knocked down and run over by one of the cars of defendant, so injuring his right foot and the first and second fingers of his right hand that in consequence thereof the same were afterwards amputated. The negligence charged against the defendant was that it carelessly and negligently furnished and placed in its said railroad track in said freight yards an unsafe and dangerous frog that was of old style, and dangerous construction, and unblocked. On March 8, 1894, the plaintiff amended his declaration by filing an additional count, which charged that the frog was open, and constructed without any blocking or other like means necessary for preventing a person in walking over the same from catching his foot therein, and being held fast, and run over by cars; and that the defendant, carelessly and negligently discharging its duty, wrongfully permitted a certain obstruction, to wit, a pile of cinders and like material, to be and remain at the junction of its railroad tracks in close proximity to the frog; and that the plaintiff, in the nighttime, in the discharge of his duties as switchman, and using due care, etc., stumbled and fell upon the said obstruction, and his foot ws thereby thrown into and caught and held fast in the frog, and he was struck by a car, etc. A plea of not guilty was filed to the original count, and to the additional count a plea of the general issue, and also a plea of the two-years statute of limitations, were interposed. The court sustained a demurrer to the latter plea. On motion of the defendant the court instructed the jury that under the evidence the plaintiff was not entitled to recover on the first count of the declaration, holding there was no cause of action therein stated, for the reason that the injury resulting from the unblocked frog was one assumed by the plaintiff in his employment. The record shows it was conceded by the counsel for appellee that the first count of the declaration did not state a cause of action. At the close of the plaintiff's testimony a motion was made to instruct the jury for the defendant, which was renewed at the close of the entire testimony. Although the trial court held no cause of action was stated in the first count of the declaration, yet, on the theory that the second count was not barred by the statute of limitations, this instruction was refused. A jury in the trial court returned a verdict in favor of the appellee for $5,000, on which judgment was rendered, and which judgment has been affirmed by the appellate court. From that judgment of affirmance this appeal is prosecuted.

PHILLIPS, C. J. (after stating the facts).

On the trial of this cause in the superior court of Cook county, that court, on motion of defendant, instructed the jury that the first count of the declaration set forth no cause of action, and that no recovery could be had thereon. Counsel for plaintiff conceded this to be true, and no exception was made, as appears in the record, to the ruling of the court in so holding. It may be conceded, therefore, that the declaration as originally filed set forth no cause of action. When the plaintiff entered the employ of the defendant company he assumed all the risks incident to such employment, including any danger or injury which might result to him by reason of the frogs in the switches of appellant's yard being unblocked. Railroad Co. v. Lonergan, 118 Ill. 41, 7 N. E. 55. The only...