Indianapolis v. Toy

• Decision Date: 31 January 1879
• Citation: 1879 WL 8429,91 Ill. 474,33 Am.Rep. 57
• Parties: INDIANAPOLIS, BLOOMINGTON AND WESTERN RAILWAY CO.v.JOHN I. TOY, Admr.
• Court: Illinois Supreme Court

91 Ill. 474

1879 WL 8429 (Ill.)

33 Am.Rep. 57

INDIANAPOLIS, BLOOMINGTON AND WESTERN RAILWAY CO.

v.JOHN I. TOY, Admr.

Supreme Court of Illinois.

January Term, 1879.

APPEAL from the Circuit Court of Champaign county; the Hon. C. B. SMITH, Judge, presiding.

Messrs. FAIRBANK & GERE, for the appellant.

Mr. JUSTICE WALKER delivered the opinion of the Court:

It appears that about the 17th day of January, 1875, one Wm. F. Hiller, a fireman of an engine used on the Indianapolis, Bloomington and Western railroad, was killed by an explosion of the boiler of the engine. Appellee, as administrator of Hiller's estate, brought an action against the company, averring negligence on its part in not providing suitable, safe and properly constructed machinery, whereby Hiller was killed, and sought to recover damages therefor. A trial was had, resulting in a verdict against the company for $1950, upon which, after overruling a motion for a new trial, the court rendered judgment, and the company appeals.

It is claimed that the recovery is wrong, because it is not supported by the evidence, and, in the next place, because the railroad was, at the time the explosion occurred, in the hands, under the control, and being operated by, a receiver, and that proper evidence offered by appellant was rejected, and the court erred in giving and refusing instructions.

We are clearly of opinion that the evidence fails to show a cause of action. It appears, from the evidence, that the engine which caused the injury was at the time employed in the yard for switching purposes; that a portion of the left-hand side sheet of the boiler gave way, which caused Hiller's death. Witnesses of intelligence, and who are unimpeached, testified that the engine was of first-class manufacture, built by a manufactory having reputation for constructing good and reliable machinery. The fire-box was constructed of copper, the best and most expensive material used for the purpose. The average time such a box lasts, in use, is seven or eight years, and is not regarded as being dangerous under five years. This had been in use only about three and a half years. The staybolts had leaked some, but that was not regarded as indicating the slightest danger. They and side sheets frequently leak, but that does not indicate weakness or want of safety. All leakage in the fire-bolts had been reported, and properly repaired. Experts testified they could not see how it was possible, with the prudence and care ordinarily used in the management of railroads, to discover the danger in this engine, as was shown by the explosion; that the employees in charge of the locomotive were careful and prudent men.

On the part of appellee, witnesses testified that they did not consider the engine safe; but their opinions seem to be based...