McAndrews v. Chicago, L.S.&E. Ry. Co.

• Decision Date: 10 October 1906
• Citation: 222 Ill. 232,78 N.E. 603
• Court: Illinois Supreme Court
• Parties: McANDREWS v. CHICAGO, L. S. & E. RY. CO.

222 Ill. 232

78 N.E. 603

McANDREWS

v.CHICAGO, L. S. & E. RY. CO.

Supreme Court of Illinois.

June 14, 1906.

Rehearing Denied October 10, 1906.

Error to Appellate Court, First District.

Action by Michael McAndrews against the Chicago, Lake Shore & Eastern Railway Company. There was a judgment of the Appellate Court reversing a judgment rendered for plaintiff, and he brings error. Affirmed.

James C. McShane, for plaintiff in error.

Knapp, Haynie & Campbell, for defendant in error.

HAND, J.

The is an action on the case brought by the plaintiff, against the defendant, in the superior court of Cook county, to recover damages for a personal injury alleged to have been sustained by plaintiff while in the employ of the Illinois Steel Company at its South Chicago plant on the 16th day of July, 1901, by reason of certain cars being thrown by a locomotive engine under the control of the servants of the defendant, against a car which the plaintiff was unloading, whereby the plaintiff was thrown to the ground and run over and severely injured. The jury returned a verdict in favor of the plaintiff for the sum of $12,000, upon which the court, after overruling a motion for a new trial and in arrest of judgment, rendered judgment, which judgment, upon appeal by the defendant, was reversed by the branch of the Appellate Court for the First District, and a judgment in that court was rendered in favor of the defendant, and the plaintiff has sued out a writ of error from this court to review that judgment.

The original declaration, which was filed on February 21, 1902, contained but one count, which, omitting the formal part, was as follows: ‘For that, whereas prior to and on, to wit, the 16th day of July, A. D. 1901, the plaintiff was employed by the Illinois Steel Company at its mills or plant at South Chicago, in the county and state aforesaid, at which plant there were certain railroad tracks, and at the time and place aforesaid, while he was upon and about to unload a certain car standing upon one of said tracks, and while, as he alleges, he was exercising ordinary care and caution for his own safety, the defendant, Chicago, Lake Shore & Eastern Railway Company, through certain of its servants in that behalf, then and there recklessly, negligently, and without giving the plaintiff any warning, shoved certain other cars against the said car upon which the plaintiff was standing, as aforesaid, and the plaintiff was thereby then and there knocked down upon said track and a certain car then and there passed over his leg,’ whereby he was injured, etc., to which original declaration the general issue was pleaded.

The plaintiff, November 17, 1903, which was more than two years subsequent to the date of his injury, amended his declaration, by leave of court, by filing two additional counts thereto, the first of which charges, in substance, that the plaintiff was in the employ of the Illinois Steel Company, and in the performance of his duty was upon a car which was standing on one of the unloading tracks in the yards of said steel company, which tracks were tracks of the defendant, and, while exercising due care and caution for his own safety, an engine of the defendant shoved a string of cars in on the track on which stood the car upon which the plaintiff was rightfully at work, and without timely warning to the plaintiff struck against said car violently, whereby the plaintiff was thrown from the car on which he was at work, to and across the track, and he was run over, etc. The second additional count was substantially the same as the first additional count, but contained the additional allegation that it was the duty of the defendant to exercise ordinary care to discover any one working about said standing car, and to give such person warning in order that he might avoid being injured; that the defendant did not take such precaution and did not discover that the plaintiff was on said car, and negligently shoved other cars against said car which the plaintiff was unloading, without warning to him, and, by the collision of said moving cars with the car which the plaintiff was unloading, he was thrown from the said car to the track and was run over and injured.

The defendant filed the general issue to said additional counts, also pleas of the statute of limitations. The plaintiff interposed a demurrer to said pleas of the statute of limitations, which was sustained, and, the defendant having elected to stand by its pleas, the case was tried upon the declaration as amended. At the close of all the evidence the defendant asked the court to instruct the jury to disregard the original declaration, as it stated no cause of action. This the court declined to do. The defendant also, after verdict, moved in arrest of judgment, on the ground the original declaration was insufficient to support a judgment, which motion was also overruled. The Appellate Court reversed the judgment upon the ground the trial court erred in sustaining a demurrer to the pleas of the statute of limitations filed to said additional counts of the declaration, and remanded the cause, whereupon the plaintiff admitted of record in that court that there were no additional facts not already appearing in the record which could be pleaded to avoid the legal effect of the demurrer to said pleas of the statute of limitations, whereupon the Appellate Court set aside the order reversing the cause and entered an order overruling the demurrer to said pleas and entered a final judgment in that court in favor of the defendant in bar of the action. The correctness of the practice of the Appellate Court in that regard is not challenged in this court. The sole question therefore presented upon this record for decision in this court is: Does the original declaration filed in this case state a cause of action?

The original declaration charges the plaintiff was in the employ of the Illinois Steel Company at its plant at South Chicago, at which plant there were certain railroad tracks; that while the plaintiff was upon and about to unload a certain car standing upon one of said tracks, and while he was exercising ordinary care and caution for his own safety, the servants of the defendant ‘then and there recklessly, negligently, and without giving the plaintiff any warning, shoved certain other cars against the said car upon which the plaintiff was standing.’ The criticism made upon the original declaration is that it does not aver facts showing the defendant owed the plaintiff the duty to notify him that it was about to move the cars which came in contact with the car upon which he was at work, prior to the time it moved said cars, and it is said that, although the defendant recklessly and negligently shoved said cars against the car upon which plaintiff was at work, the defendant is not liable to him for a resulting injury therefrom, unless it owed him a duty to warn him that it was about to move said cars, prior to the time they were moved, and that it is not averred in the original declaration that the defendant knew, or ought to have known, the plaintiff was upon said car; nor are facts averred from which it appears that a duty rested upon the defendant to anticipate the presence of the plaintiff upon or in proximity to the car with which the moving cars came in contact. In actions of the character of this it is necessary to aver and prove three elements to make out a cause of action: (1) The existence of a duty on the part of the defendant to protect the plaintiff from the injury of which he complains; (2) a failure of the defendant to perform that duty; and (3) an injury to the plaintiff resulting from such failure. When these three elements concur, they unitedly constitute actionable negligence, and the absence of any one of these elements, either in the declaration or proof, renders the declaration insufficient to sustain a judgment for negligence, even after verdict or the proof to establish a cause of action involvingactionable negligence (Schuler v. Mueller, 193 Ill. 402, 61 N. E. 1044;Mackey v. Northern Milling Co., 210 Ill. 115, 71 N. E. 448;Faris v. Hoberg, 134 Ind. 269, 33 N. E. 1028,39 Am. St. Rep. 261); and it is not sufficient in the declaration to allege that it is the duty of the defendant to do certain things, as that would be but the averment of a conclusion, but the declaration must state facts...