Lake Shore & M.S.R. Co. v. Brown

• Decision Date: 11 November 1887
• Citation: 14 N.E. 197,123 Ill. 162
• Court: Illinois Supreme Court
• Parties: LAKE SHORE & M. S. R. CO. v. BROWN, Adm'x

123 Ill. 162

14 N.E. 197

LAKE SHORE & M. S. R. CO.

v.BROWN, Adm'x

Supreme Court of Illinois.

November 11, 1887.

Appeal from appellate court, First district.

CRAIG, J., dissenting.

Cyrus D. Roys and Pliny B. Smith, for

Geo. M. Stevens and Geo. A. Du Puy, for appellee.

SHOPE, J.

This was an action by appellee, as administratrix of Nelson Brown, deceased, to recover damages for causing the death of said deceased. The trial in the superior court of Cook county resulted in a verdict for plaintiff, and judgment thereon. Upon appeal to the appellate court of the First district, the judgment of the superior court was affirmed, and the case is brought here by the further appeal of the railroad company.

It the case was properly submitted to the jury, they, by the verdict rendered, necessarily found every fact material to a recovery in favor of the plaintiff.

We must accept the general judgment of affirmance as settling all questions of fact favorably to the plaintiff below, and that the evidence is sufficient to sustain the finding of the jury under the issues as made by the pleadings in the case. We must assume, therefore, that plaintiff's intestate was rightfully a passenger on defendant's train, in charge of his stock, and had a right to be safely carried to the Union stock-yards, and was, as between himself and defendant, rightfully and by invitation and direction of defendant, by its servants in charge of his stock and of defendant's engine, on the foot-board of the engine, as alleged in the declaration, and was, at the time of his injury, in the exercise of due and ordinary care for his safety, and that his injury and death were caused by and resulted from the gross negligence of defendant's servants in the running, management, and operation of the engine upon which he was so by invitation rightfully riding, as charged in the declaration. Our consideration will, therefore, be confined to questionsof law which arise upon the admission and exclusion of evidence, and to instructions given, refused, or modified at the trial.

The principal question, and the one of greatest difficulty, is in reference to the alleged negligence of the deceased in getting upon the foot-board of the switch-engine, and attempting in that position to ride from Forty-third street to the stock-yards. Many of the instructions asked by appellant proceed upon the theory that the deceased was guilty of such negligence in so being upon the foot-board of the engine as to prevent a recovery by his personal representative. It cannot be said, however, that the deceased, in getting on the foot-board of the engine, and remaining there, was in the violation of any duty imposed upon him by law; nor is it conceded that in so doing he acted with less circumspection and care for his personal safety than would have been observed by prudent and ordinarily careful men under like circumstances. Indeed, this is the sharply controverted question in the landeed, this is the sharply controverted question in the case, and the question of negligence was, therefore, a question of fact to be determined by the jury, upon consideration of all the facts and circumstances proved. Railroad Co. v. O'Connor, 119 Ill. 586, 9 N. E. Rep. 263.

The test of plaintiff's right of recovery in this case was the exercise by the deceased of ordinary care, that is, such care as a prudent and ordinarily cautious man would exercise for his personal safety, and the failure of appellant to exercise such care, and that by reason thereof the injury and death occurred. It cannot be said as a matter of law that a prudent and ordinarily cautions man would not, under any circumstances, ride a short distance upon an engine. Experience has shown there is some danger in the safest mode of railway travel, and it cannot be said that one must not take a particular mode of carriage because it is dangerous. The question can only be determined as before stated by a consideration of all the attending circumstances.

In this case it is alleged in the declaration, and the jury have found, that the deceased had the right to be carried over the defendant's road to the stock-yards; then, evidence tending to show that when Forty-third street was reached, the caboose in which he had been riding was taken away, and his car of stock left standing on appellant's track; that it was the habit or custom of appellant to carry the attendants of stock from that point to the stock-yards, three-fourths of a mile, on the stock car or switch-engine, which picked up the stock cars dropped by appellant's trains at Forty-third street, and took them to the stock-yards; that deceased had been engaged in shipping stock over appellant's road for several years; that no other mode of transportation was provided by appellant from Forty-third street to the stock-yards; that the yard-master of appellant directed the engineer of the switch-engine to go and get the ‘drover’ and his car of stock, which he did, at the same time directing the deceased to get on the engine; that in pursuance of such direction the deceased got on the foot-board of the engine. It appears also, that, after getting under headway, the speed of the engine was checked, and the coupling pin pulled, when the engine was thrown or ‘jerked’ forward for the purpose of making a running switch. By the sudden and violent motion thus given to the engine the deceased was thrown from the foot-board upon the track and was run over by the car of stock from which the engine had just been detached and so injured that death ensued.

In determining whether the deceased's being upon the foot-board was negligence, it became competent for the jury to consider, not only the acts of the deceased, but also the acts of the servants of the company, not alone in respect to their management of the trains, but as connected with the acts complained of as negligence on the part of the deceased. There may be fault on the part of the carrier in putting the passenger in a place of unnecessary hazard, or in giving him assurance of safety and the like, which might render the apparent want of care of a passenger the negligence of the carrier. It is said in Pierce, R. R. 329, that ‘the direction, invitation, or assurance of safety given by a servant of the company may so qualify a plaintiff's act as to relieve it of the quality of negligence which it would otherwise have. This has been more generally held in the case of passengers who are in charge of the company, and have a right to assume that its servants know what is safe. * * * But notwithstanding such direction, invitation, or assurance, the plaintiff will not be excused in following it, if the act involves a reckless exposure of himself, or is one which a man of ordinary prudence would not do.’ Deering, in his Law of Negligence, § 24, says: ‘One who obseys the instructions or directions of another upon whose assurance he has a right to rely, cannot be charged with contributory negligence at the instance of such other, in an action against him for injuries received in attempting to follow out the instructions;’ citing in support of the text, Railroad Co. v. McCloskey, 23 Pa. St. 526; Railroad Co. v. Henderson, 51 Pa. St. 315; Railroad Co. v. Cantrell, 37 Ark. 519;Railroad Co. v. Kelly, 92 Ind. 371;Pool v. Railway Co., 53 Wis. 657, 11 N. W. Rep. 15;Chance v. Railway Co., 10 Mo. App. 357.

In Wilton v. Railroad Co., reported in 107 Mass. 108, the plaintiff, a girl 9 years old, was walking with other girls along defendant's track, and one of defendant's engines came slowly along the track, and the driver beckoned to the girls to get on, which they did. By a jerk of the car the plaintiff lost her balance, and fell and was injured. It was admitted in that case, that plaintiff was not a passenger for hire. The court says: ‘In accepting the invitation, and getting upon the car, we think she [plaintiff] was not a trespasser, there being no evidence of collusion between her and the driver to defraud the corporation. A master is bound by the acts of his servants in the course of his employment. * * * If, in violation of his instructions, he permits persons to ride withoutpay, he is guilty of a breach of duty as a servant. Such act is not one outside of his duty, but is an act within the general scope of his agency, for which he is responsible to his master. In the case at bar the invitation to the plaintiff to ride was an act within the general scope of the driver's employment, and if she accepted it innocently, she was not a trespasser. It is immaterial that the driver was acting contrary to his instruction.’

If the deceased, at the time of the accident, was in a place of peril, that fact was known to appellant's servants. If he was there by their invitation or direction, the law would require of them the exercise of a degree of care corresponding to the danger to which they had thus exposed him. The care ordinarily required of a carrier of passengers is to be measured by the known peril to the party it undertakes to carry. The proof shows that the making of a running switch is usually attended with danger, and would be especially so to persons standing upon the foot-board of the engine. This was known to appellant's servants, but is not shown to have been known by deceased; nor is it shown that he knew or was told a running switch was to be made. It became the duty, then, of the servants of appellant to advise deceased of the facts before attempting the running switch, so that he might have taken extra precaution, or have gotten off the engine before the switch was attempted.

In this connection the eighth instruction asked by appellant is as follows: ‘The jury are instructed that, if they believe from the evidence that the said Nelson Brown got upon the car in question for the purpose of riding to the stock-yards, and the engine was drawing a car loaded with stock, and that neither said engine nor car was run or operated for the purpose of...