Martin v. Chicago & N.W. Ry. Co.

• Decision Date: 18 December 1901
• Citation: 194 Ill. 138,62 N.E. 599
• Court: Illinois Supreme Court
• Parties: MARTIN v. CHICAGO & N. W. RY. CO.

194 Ill. 138

62 N.E. 599

MARTIN

v.CHICAGO & N. W. RY. CO.¹

Supreme Court of Illinois.

Dec. 18, 1901.

Error to appellate court, First district.

Action by Patrick E. Martin, administrator of the estate of James McDonough, deceased, against the Chicago & Northwestern Railway Company. From a judgment of the appellate court affirming a judgment in favor of defendant (92 Ill. App. 133), plaintiff brings error. Reversed.James C. McShane, for plaintiff in error.

E. E. Osborn (Lloyd W. Bowers and A. W. Pulver, of counsel), for defendant in error.

This is a case commenced in the superior court of Cook county by plaintiff in error to recover from defendant in error damages for the killing of James McDonough. The declaration contained three counts. The first avers that on the 16th day of January, 1898, plaintiff's intestate was in the employ of the defendant as a locomotive engineer, and earning $140 a month, and that while he was crossing one of the defendant's tracks in the vicinity of Forty-Seocnd avenue, in the city of Chicago, on his way from his home to the shops, where he was to take an engine on a trip for the defendant, while exercising due care and caution for his own safety, he was accidentally thrown or fell upon the track and rendered unconscious, and that the servants of the defendant, but not fellow servants, operating a certain locomotive engine, recklessly, carelessly, and negligently drove said engine over plaintiff's intestate, and inflicted injuries resulting in his death. The second count was like the first, with the additional allegation that by the exercise of ordinary care the servants of the defendant operating said engine might have discovered the said James McDonough's position upon the track in time to have avoided the injury, but that they did not exercise such care, but recklessly, wantonly, and negligently ran, managed, and operated said engine so that it ran over plaintiff's intestate, causing injuries resulting in death. Two additional counts were filed; the first setting out the employment and wages, and averring that while plaintiff's intestate was on his way to get his engine, preparatory to making a trip upon defendant's road, he was either thrown or fell upon one of the tracks, and was rendered helpless, and continued to lie upon said track, and that other servants of the defendant were operating and managing a certain engine, not being fellow servants of plaintiff's intestate; that it was in the daytime, the track in question straight and clear, and the defendant's servants operating said engine did discover plaintiff's intestate, and his position upon the track and his peril, in sufficient time, by the exercise of reasonable care, to have avoided the injury, but that they wantonly, recklessly, and negligently ran said engine over plaintiff's intestate, etc. A second additional count was filed and demurred to, and the demurrer sustained. Plea of not guilty. The cause came to a hearing, and at the conclusion of all the testimony offered by both parties the trial judge directed the jury to render a verdict in favor of the defendant. Judgment upon the verdict for costs. The case was taken to the appellate court on a writ of error, and there affirmed, and upon a certificate of importance by that court a writ of error is prosecuted from this court.

RICKS, J. (after stating the facts).

The facts disclosed by the record are that James McDonough, plaintiff's intestate, would have been 35 years of age his next birthday. He was 5 feet 10 inches in height; weighed 163 to 168 pounds; was a sober man, of good character and habits; had been married 8 years; had four children and a wife; had worked on defendant's road as a fireman and engineer for 14 or 15 years, and as engineer for 7 years. His wife testified that she had never known him to be sick in any manner, and that he had never had heart trouble. His run was to Janesville, Wis., and return. On the day of his death he came in on his run between 10 and 11 o'clock in the forenoon, ate his meal, and went to bed. He was called a little before 4 o'clock in the afternoon to go and take his engine and go out upon a run. He dressed himself, took his dinner bucket (which was a white tin bucket, 6x9 inches) and his overclothes, and left his home at 4:15 to go to his engine, which was at the roundhouse, somewhere near half a mile northerly of where he lived. He was a little late, and was in a hurry. On the north side of the railroad, and opposite his house, were the yards, shops, and engine roundhouse of the defendant. In these yards were a great many tracks that must be crossed, or in some way gotten around, to get to the stable where his engine was kept. Defendant's main line of road runs east and west along Kenzie street, and consisted of three tracks. The south track is for out-bound trains, the north one for in-bound through trains, and the middle one for freights and passing tracks. Defendant, in compliance with an ordinance of the city, had its main tracks elevated, so that they were 12 or 15 feet above the surface in the vicinity of the accident. At Fortieth avenue defendant had a station house, which the evidence tended to show was about this time, or prior three tracks. The south track is for outbound house were platforms, and the tracks were planked, so that the planking came up to the outer rail on the north and south sides of the road; but between the rails and between the several tracks there was no plank, but the space was simply filed in with gravel and sand. This station was on the north side of the tracks, and was reached by a stairway from the street. On the south side of the tracks there were also a gate and stairway. On this day plaintiff's intestate left his home, and apparently went up the stairway onto the platform opposite the station, and started across the track, and, for some reason not explained by the evidence, fell between the rails of the first track; his head lying against or close to the south rail, and his feet lying over the north rail; his lunch bucket and oversuit lying between the rails near him. An engine of defendant, drawing a caboose, in the charge of Samuel Cowan, as engineer, and Theodore J. Kirk, as fireman, started on an out-bound trip from somewhere near Western avenue, and going west. In the caboose were the conductor, Silas Harrison, and two brakemen. The engine was of the type known as the ‘Mogul’; had six drivewheels, 5 feet in diameter, with a double set of trucks ahead of the drivers. The tender had two sets of double trucks, all of which, except the front trucks of the engine, were equipped with the Westinghouse air brake, and the caboose had a hand brake at each end. At Hamlin avenue, about 1,400 feet east of where McDonough was lying, the fireman discovered an object on the track, which he says he did not then believe was a man, but which he watched continuously from the time he first saw it until the accident occurred; that from the time he first saw it he kept watching it, and said nothing to the engineer until he had reached a tower house, which was about 360 to 380 feet east of where plaintiff's intestate was lying, and says that at that time and place he saw the dinner pail, and saw enough to know that the object was a man, and then for the first time he informed the engineer that there was a man on the track. He states that at the time he first saw this object the engine was running from 15 to 18 miles an hour, and that it did not perceptibly decrease or increase its speed until the tower house was reached; that at the time he told the engineer there was a man on the track he rang a bell; that the engineer applied the air brake and reversed the engine; that he only gave the bell a ring or two; that no other signals or alarms were given, but he continued to watch the object; and that, from the time he first saw it until it was passed over, he did not see it move. The engineer could not say whether he opened the sand box or not. The engine was stopped just after it had passed over the plaintiff's intestate, the body lying between the front wheels of the tender and the rear drive wheels of the engine. The fireman immediately got out of the cab, and he and the conductor dragged the body from under the engine. Both feet were cut off, and the head had a large number of small cuts,-12 or 15,-apparently extending clear around it, and a large cut over one temple, extending down to the ear. The fireman states that there was a small amount of muscular tremor or twitching discernible when he first drew him out, and that that was the only evidence of life. The engineer and conductor testified that they saw no evidence of life whatever. Two or three per sons saw the body immediately after the accident, and all the witnesses concur in the statement that there was not a great amount of blood flowing. Some of them fixed it at scarcely a perceptible amount, and others state that it was very noticeable. One or more of the bystanders testified that there was a pool of blood under the engine where decedent lay; that it was a foot or more across, and that a streak of blood could be seen from where the body was taken, to the platform of the railroad where it was laid. The undertaker testified that the underclothing-particularly the undershirt-was saturated with blood, the greater portion being in the back. The pilot was the lowest point of the engine that passed over him, and the testimony was that that was about 5 inches above the top of the rail, and at least 8 inches above the roadbed; and there is little, if any, evidence tending to show that the body was rolled by the train passing over it. The condition of the clothing indicated that it was not. It was on Sunday, and there was about an inch of snow upon the ground, that had fallen a day or two previously. The day of the accident was clear and bright, and the body was struck by the engine about 4:22 o'clock in the afternoon. The wife...