Joy v. Chicago, B.&Q.R. Co.
| Decision Date | 04 June 1914 |
| Docket Number | No. 9378.,9378. |
| Citation | 263 Ill. 465,105 N.E. 330 |
| Court | Illinois Supreme Court |
| Parties | JOY v. CHICAGO, B. & Q. R. Co. |
OPINION TEXT STARTS HERE
Appeal from Appellate Court, Second District, on Appeal from Circuit Court, La Salle County; S. C. Stough, Judge.
Action by Joseph J. Joy against the Chicago, Burlington & Quincy Railroad Company. Judgment for defendant being affirmed on appeal to the Appellate Court, plaintiff again appeals. Affirmed.
R. A. Green, H. M. Kelly, and Butters & Armstrong, all of Ottawa, for appellant.
Boys, Osborn & Griggs, of Streator (J. A. Connell, of Chicago, of counsel), for appellee.
This suit was brought to recover damages for the death of Joseph Hayes, who was struck by an engine of the Chicago, Burlington & Quincy Railroad Company on its tracks between Ottawa and the village of Dayton, on the afternoon of November 9, 1907, and so injured that he died shortly afterwards. At the time deceased was struck, he was lying with his head and one arm on the west rail of the railroad track and his body extended west from the track. The declaration alleged deceased was on the track unable to care for his own safety and in great peril; that defendant's servants operating the train knew of his presence on the track in time to have avoided injuring him by the exercise of due care but wantonly and negligently ran the engine against him and killed him. Another count alleged the defendant's servants were aware of the peril of the deceased and wantonly and negligently ran against him. Another count was similar, except it alleged that after defendant's servants became aware of the peril of deceased they negligently ran against and killed him. At the conclusion of the plaintiff's evidence the trial court directed a verdict for the defendant. Plaintiff appealed to the Appellate Court for the Second District, and that court affirmed the judgment and granted a certificate of importance, upon which a further appeal is prosecuted to this court.
The fireman who was on the engine at the time the accident occurred was dead at the time of the trial, and the case substantially depends upon the testimony of Horace D. Stedman, the engineer in charge of the engine that struck Hayes. At the place where the injury occurred, the railroad track of appellee runs north and south. It was in the open country, remote from houses and highway crossings. The nearest railroad crossing was north of the place of injury in the neighborhood of a mile, in the village of Dayton, and the nearest railroad crossing south of the place of injury was about one and one-half miles. There was no house nearer the place than one-fourth mile, and there is no proof that at the place of the injury the track was used for travel or for any other purpose than that of appellee. The track was ballasted with cinders on a level with the top of the ties and extended on each side of the track, sloping down to a ditch on the west side, which was one or one and one-half feet below the ties. The engineer, who was 79 years old at the time he testified and not then in the service of appellee, testified he first saw an object on the track when he was 80 or 100 rods south of it. A few days before he had seen an object on the track at the same place, and on stopping his train found it to be a bundle of waste paper out of a sand car. He thought this object was the same bundle of waste paper. No part of the body except the head and shoulders was visible from the engine until he got pretty close. The train consisted of an engine, baggage car, and two coaches, and was running about 20 miles an hour. After first seeing the object which he believed to be a bundle of waste paper, he did not look at it again until the fireman told him it was a man. He immediately applied the emergency brake, shut off steam, and sounded the alarm whistle, but was then too close to deceased to stop his train before striking him. When the train came to a stop, the rear coach was opposite the body of deceased, which was lying on the west side of the track. There were no weeds or other obstructions on the railroad grade at the place where the deceased was struck.
[1][2] Appellant insists the proof at least tends to show appellee's servants in charge of the engine were aware of the presence of deceased on the track, and of his peril and danger, in time to have avoided injuring him; that with such knowledge, and in disregard of their duty, they negligently ran the engine against and upon the deceased. The engineer testified that when he first saw the object on the track he was from 80 to 100 rods south of it and could have stopped his train before reaching it, but he did not become aware that the object was a man until too close to stop his train. Appellant concedes no duty rested upon appellee to anticipate the presence of deceased on the track or to keep a lookout to discover him in the first instance, but it is claimed that when the engineer saw an object on the track it was sufficient to put him upon...
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