Luken v. Lake Shore & M.S. Ry. Co.

Decision Date25 February 1911
Citation94 N.E. 175,248 Ill. 377
CourtIllinois Supreme Court
PartiesLUKEN v. LAKE SHORE & M. S. RY. CO.

OPINION TEXT STARTS HERE

Error to Appellate Court, First District, on Appeal from Superior Court, Cook County; Willard M. McEwen, Judge.

Action by Frank J. Luken against the Lake Shore & Michigan Southern Railway Company. There was a judgment for plaintiff, and from such judgment and an order denying defendant's motion for a new trial defendant appealed to the Appellate Court, which affirmed the judgment and order, and defendant brings error. Affirmed.Glennon, Cary, Walker & Howe, for plaintiff in error.

James C. McShane, for defendant in error.

FARMER, J.

This action was brought by defendant in error (hereafter referred to as plaintiff) against the plaintiff in error (hereafter referred to as defendant) to recover damages for personal injuries.

Defendant is operating a line of railroad running from Chicago, Ill., to Buffalo, N. Y., and is a common carrier of passengers and freight. Plaintiff was at the time of his injury a switchman employed by defendant at its yards in Chicago. At about 1:30 o'clock a. m., July 15, 1905, he was assisting in making up a transfer train composed of 45 cars located on one of the tracks of defendant in its yards. Plaintiff's duty was to couple the cars, and while thus engaged he received the injury complained of. The cars were equipped with automatic couplers, but the coupler on one car was not in working order, and would not couple by impact. Plaintiff went between the cars for the purpose of endeavoring to effect the coupling, and, while endeavoring to put the coupler in such condition that it would work, the cars were moved and brought together, severely injuring him.

The declaration contains two counts. The first count is based upon the statute of this state requiring the use of safety appliances on railroads engaged in moving traffic between points in the state of Illinois. Section 2 makes it unlawful for any such common carrier to haul any car used in moving such traffic which is not equipped with couplers coupling automatically by impact and which can be uncoupled without the necessity of men going between the ends of the cars. Laws 1905, p. 350. Said first count charges the violation of this statute by defendant by hauling and using upon its line of railroad in moving traffic between points in the state of Illinois a certain car equipped with a certain automatic coupler which, by reason and in consequence of its then improper and defective condition of repair, could not be coupled automatically by impact without the necessity of switchmen going between the ends of the cars. The second count is based on the federal statute requiring common carriers engaged in interstate traffic to equip their cars with couplers coupling automatically by impact and which can be uncoupled without the necessity of men going between the ends of the cars. Said second count charges the violation of this statute by defendant by hauling and moving upon its line of railroad a certain car used in moving interstate traffic, equipped with an automatic coupler which was in such defective and improper condition that the car could not be coupled automatically by impact without the necessity of switchmen going between the ends of the cars.

Defendant pleaded the general issue, and a trial was had by a jury. At the conclusion of all the evidence, defendant moved the court to require plaintiff to elect under which count the case should be submitted to the jury, and, over the objections and exceptions of plaintiff, the court required an election. Thereupon plaintiff elected to go to the jury on the first count of the declaration. The jury returned a verdict in favor of the plaintiff, assessing his damages at $10,000. After the return of the verdict, on motion of the plaintiff, the court vacated the order requiring an election, and, after overruling motions for a new trial and in arrest of judgment, rendered judgment on the verdict. Defendant prosecuted an appeal to the Appellate Court for the First District, and that court affirmed the judgment of the trial court. The case is brought to this court by writ of certiorari.

Plaintiff testified that, before the cars were brought together to couple them by impact, he examined the couplers to see if they were in order, and found the knuckle of the car in question would not open. He made some effort to open it and get it in condition to couple, but, failing to do so, went to another car north of it, and examined the coupling on it. He then returned to the car in question, and again endeavored to open the knuckle and get the coupler in condition, but found it would not open so the coupling could be made. In attempting to get the coupler in condition he had to go between the cars and use his hands. While thus engaged, the cars were brought together and plaintiff was injured. There is no proof as to the length of time the coupler had been defective or out of order, and defendant contends that the evidence failed to show it violated any duty it owed to plaintiff. Defendant's position is that, the car having been equipped with an automatic coupler, it was incumbent on plaintiff to show that its defective condition was known, or by the exercise of reasonable care might have been known, by it before the injury. In addition to the testimony of plaintiff, the conductor in charge of the train that was being made up testified that he tried to effect the coupling twice by impact-once before plaintiff was injured and once afterwards-and failed each time. After the second failure the car was placed on the repair track. There was no proof of the coupler being out of order or defective previous to the time mentioned by the plaintiff and the conductor.

While both the Illinois statute and the federal statute require cars to be equipped with couplers coupling automatically by impact, so that they can be uncoupled without requiring men to go between the ends of the cars, in considering the federal statute the Supreme Court of the United States, in Johnson v. Soutern Pacific Railway Co., 196 U. S. 1, 25 Sup. Ct. 158, 49 L. Ed. 363, held the statute should be so construed as to promote in the fullest manner the apparent policy and object of its adoption, and that it was intended to, and did, cover both coupling and uncoupling cars. Both the state and federal acts were passed to protect men engaged in these duties, and it cannot be denied that it is the duty of the carrier to equip its cars with automatic couplers and maintain them in such coudition that the cars can be coupled and uncoupled wthout employés being required to go between them in performing their duties, and the federal courts, in cases arising under the federal statute, have by an almost uniform line of decisions held that the duty of the carrier is not merely that of exercising reasonable care in maintaining the prescribed safety appliances in an operative condition, but is absolute. Norfolk & Western Railroad Co. v. United States, 177 Fed. 625, 101 C. C. A. 249;St. Louis, Iron Mountain & Southern Railroad Co. v. Taylor, 210 U. S. 281, 28 Sup. Ct. 616, 52 L. Ed. 1061;United States v. Atchison, Topeka & Santa Fé Railway Co., 163 Fed. 517, 90 C. C. A. 327;Chicago, Burlington & Quincy Railroad Co. v. United States, 170 Fed. 556, 95 C. C. A. 642.

In Norfolk & Western Railroad Co. v. United States, supra, will be found a very large collection of cases decided by the federal courts holding that it is the absolute duty of common carriers not to haul cars which are not equipped with safety appliances that will operate for the purpose for which they are required to be provided, and relief from the liability provided for noncompliance with the act cannot be obtained by showing reasonable care and want of intentional violation of the statute. The court refers to St. Louis & San Francisco Railroad Co. v. Delk, 158 Fed. 931, 86 C. C. A. 95, and United States v. Illinois Central Railroad Co., 170 Fed. 542, 95 C. C. A. 628, both decided by the Circuit Court of Appeals for the Sixth Circuit, holding a contrary rule, but says those cases are contrary to the great weight of authority.

In construing a federal statute, this court is bound by the construction placed upon the act by federal courts. In construing a similar state statute we are not necessarily bound to follow the construction of the federal courts in construing a federal statute, but where, as here, the two acts are to nearly identical and the state act was passed after the federal statute had been construed and both acts were intended to accomplish the same object, we would naturally incline to follow the construction given the federal statute by federal courts. But in our opinion the construction placed upon the federal statute by the federal courts is the sound and proper construction, and, in the absence of federal authority, we would give the state statute the same construction that the federal courts have given the federal statute, by holding that the duty imposed upon the carrier to equip and maintain safety appliances in such condition and state of repair that they will operate in the manner and for the purposes intended is absolute, and the carrier cannot be heard to say in defense of an action brought by one injured in consequence of its failure to perform its duty that the plaintiff in bound to prove that the carrier did not exercise reasonable care to maintain the safety appliances in good condition and repair. The court properly refused three instructions offered by defendant that it was incumbent upon the plaintiff to prove that the defendant knew, or by the exercise of reasonable care might have known, of the defective condition of the coupler.

We think the trial court erred in requiring plaintiff to elect under which count the case should be submitted to the jury. Plaintiff's evidence made a case against the defendant that justified its submission to the jury, and...

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