Lake Erie & W.R. Co. v. Morrissey

• Decision Date: 21 December 1898
• Citation: 177 Ill. 376,52 N.E. 299
• Court: Illinois Supreme Court
• Parties: LAKE ERIE & W. R. CO. v. MORRISSEY.

177 Ill. 376

52 N.E. 299

LAKE ERIE & W. R. CO.

v.MORRISSEY.

Supreme Court of Illinois.

Dec. 21, 1898.

Appeal from appellate court, Third district.

Action by Michael M. Morrissey against the Lake Erie & Western Railroad Company. From a judgment for plaintiff, affirmed by the appellate court (75 Ill. App. 466), defendant appeals. Affirmed.Tipton & Tipton and John B. Cockrum, for appellant.

J. E. Pollock and FitzHenry & Pollock, for appellee.

This was an action brought by Michael M. Morrissey in the circuit court of McLean county, against the Lake Erie & Western Railroad Company, to recover damages for a personal injury suffered by him while in the service of the company as a conductor of a freight train, and while attempting to couple, in the nighttime, two Empire Line cars, at East Lynn, a small village on the line of the road. The declaration contains but one count, and the material part is as follows: ‘And the plaintiff avers that it was the duty of the defendant to keep and maintain that portion of its main tracks in the vicinity of said side tracks as aforesaid, which it was necessary for the plaintiff to pass over in order to do switching and coupling and uncoupling of cars, in a safe and proper condition, so as not to expose the plaintiff or the servants of said company to any unnecessary danger or liability of accident; and it was then and there the duty of the defendant to have filled in the space between the ties, and underneath the same, of its said railroad track, with cinders or other substance, to fill the same up level with the top of the ties to the bottom of the rail of the said defendant's track that was laid on said ties, so that the plaintiff and the servants of the said company whose duty it was to couple and uncouple the cars and do switching, in standing and walking on said track in order to couple its said cars, the plaintiff would not be exposed to unnecessary danger or liability to catch his foot underneath the rails of said ties, or stumble or trip over the same. And plaintiff avers that the said defendant, not regarding its duty in that behalf, carelessly and negligently permitted that portion of its main track in the vicinity of the said switch and side track, at the village of East Lynn, and in the switch yard there, to remain in unsafe repair and condition, and then and there carelessly and negligently permitted the same to be and remain out of repair, and negligently and carelessly permitted certain ties to remain above the surface of the ground, and negligently and carelessly permitted the north rail of the track of the said defendant's railroad on the main track, as aforesaid, to remain above the ground, and failed to have the ground between the ties and the bottom of the rail filled up so that plaintiff would not be exposed to danger or accident in attending to his duties as such conductor while in and about coupling and uncoupling cars passing along and over the said track, which he was obliged to do while attending to his duties in coupling and switching the said cars. And plaintiff avers that while standing and walking upon the said portion of the said main track, which he was obliged to do in order to make a coupling between the cars on the head end and the cars in the rear end of defendant's train, in the line of his employment pursuant to his duty, not knowing the defective condition of the said track as aforesaid, in the nighttime, was then and there exposed to unnecessary danger and liability to accident; and then and there, while so engaged in making a coupling between the defendant's cars, as aforesaid, standing and walking upon the said portion of the main track, using due care and caution for his own personal safety in the line of his duty, his left foot became and was caught and fastened underneath the rail of the said defendant's track, and against one of the ties of the same, and he then and there was unable to extricate the same; and the plaintiff was then and there thrown with great force and violence, and, by the momentum of the cars he was so engaged in coupling, necessarily and unavoidably fell to and upon the north rail of said main track; and divers wheels of one of the defendant's cars, which plaintiff was then and there engaged in coupling, then and there ran and passed over his left leg, whereby his left leg was crushed so that it became and was necessary to amputate the same above the knee,’ etc. The defendant demurred to the declaration, which demurrer was overruled, and a plea of general issue was filed. A trial was has before a jury, resulting in a judgment in favor of the plaintiff. The defendant appealed from the judgment of the circuit court to the appellate court for the Third district, where the judgment of the circuit court was affirmed; and appellant has appealed to this court, and asks for the reversal of the judgment of the appellate court.

CRAIG, J. (after stating the facts).

Appellee, at the time of the injury, was 30 years of age, and was married. He had been railroading about 12 years, as brakeman, beggageman, and conductor. He had worked on the Chicago & Alton road about 11 years. He commenced work for appellant on the 6th of April, 1897, as conductor of a gravel train, and he afterwards had a run between Rankin and Peoria. East Lynn is a regular station for receiving passengers and freight on the division east of Rankin. The night of August 14, 1897, when the accident occurred, appellee was sent east as conductor, in charge of the appellant's freight train, on the Third, or Eastern, Division, and he had never made any trip prior to this one over this Eastern Division. He started from Tipton, Ind., with a train of 43 or 44 cars; and when the train reached East Lynn, about 100 miles west from Tipton, it was about 1:30 o'clock at night. It was necessary to do some switching at this station, by putting off some cars. Two cars were shoved on the north, or ‘business,’ track, as it was called. Then they pushed two more on the main track, and shoved a couple more on the business track. Under the rules of the road, it was appellee's duty to couple and uncouple cars. Four cars were cut off and run down on the main track, and appellee set the brakes on them, when he noticed the other cars coming down the main track, pushed by the engine; and he went over and set the coupling pin on the two cars then standing on the main track. It appears that the two Empire Line cars he was attempting to couple have a deck on the end, and on this are iron buffers. The drawbar is below, and they are more difficult to couple than ordinary cars, and require the entire attentionof the person making the coupling. When appellee undertook to make the coupling, he had hold of the handhold with his right hand, and reached down and placed the link in the drawbar. He then raised up and reached over to shove the pin down when the cars came together. The cars pushed the two cars that had been standing about half a car length, and appellee was compelled to walk along with them, and it was while going that distance that he was injured. He made two or three steps, and the cars parted, and, when they parted, he tried to step out from the track. He stepped out with his right foot, but his left foot caught, the toe of his shoe going under the north rail of appellant's track; and he was unable to extricate it, and was thrown down by the cars he was attempting to couple, and fell upon the north rail of the main track, and his left leg was run over, and was so injured that it was necessary to amputate it. It appears that it was appellee's first trip...