McNaught v. Hines

• Decision Date: 07 December 1921
• Docket Number: No. 13861.,13861.
• Parties: McNAUGHT v. HINES, Director General of Railroads.
• Court: Illinois Supreme Court

300 Ill. 167

133 N.E. 53

McNAUGHT

v.HINES, Director General of Railroads.

No. 13861.

Supreme Court of Illinois.

Oct. 22, 1921.

Rehearing Denied Dec. 7, 1921.

Error to Appellate Court, Third District, on appeal from Circuit Court, McLean County; Sain Welty, Judge.

Action by Rosamond McNaught, administratrix, against Walker D. Hines, Director General of Railroads. From judgment for plaintiff, defendant brought error from the Appellate Court, and on affirmance there (220 Ill. App. 15) brings certiorari.

Reversed and remanded, with directions.George B. Gillespie, of Springfield (L. J. Hackney, of Cincinnati, Ohio, A. E. & R. C. De Mange, of Bloomington, Stanley W. Merrell, of Cincinnati, Ohio, George M. Gillespie, of Springfield, and F. L. Littleton, of Cincinnati, Ohio, of counsel), for plaintiff in error.

Sigmund Livingston, of Chicago, and W. W. Whitmore, of Bloomington, for defendant in error.

CARTER, J.

Defendant in error, as administratrix of her husband's estate, brought a suit in the circuit court of McLean county against Walker D. Hines, Director General of Railroads, operating the Cleveland, Cincinnati, Chicago & St. Louis railway, for the death of her husband, claiming it to have been caused by the negligence of the railway company. On the trial before a jury a verdict in favor of defendant in error was given for $9,000 and judgment entered thereon in the circuit court. On appeal to the Appellate Court that judgment was affirmed, and the case has been brought to this court on petition for certiorari.

The declaration consisted of four counts, each charging in some form negligence in the operation of the engine and cars of the railway company. It appears that on January 24, 1918, the deceased was a traveling salesman for the Wink Packing Company, of Peoria. On the afternoon of that day he arrived at the village of Lilly, in McLean county, on an interurban car a few minutes before 6 o'clock. The Wink Packing Company sold meats and their by-products, and the object of the deceased in going to Lilly was to procure an order from the firm of Rutledge & Garrett, a customer. About 40 people lived in Lilly, and the buildings there located consisted of several business places, plaintiff in error's railroad depot, an interurban depot, and about 12 houses. The plaintiff in error's railroad runs through this place east and west, and the interurban electric railway parallels it on the north, about 75 feet distant therefrom. A block south of the railroad tracks an unnamed street runs east and west parallel therewith, and ends at the east side of Hay street. On the north and south sides of this unnamed street or passageway above mentioned, and west of Hay street, are located some of the business places mentioned. The store of Rutledge & Garrett is located at the southwest corner of the intersection of the unnamed street and Hay street. Running north from this street for a short distance is a cement walk, beyond which is a path which runs diagonally in a northeasterly direction, crossing the railroad tracks in the center of Hay street, and continuing northeasterly across Hay street to the interurban station, whicn is north of the interurban tracks and on the east side of Hay street. Hay street is not a regularly traveled highway, and has no definite width. Where it crosses plaintiff in error's tracks it is planked to a width of 19 feet. The evidence tends to show that after the deceased had obtained an order from Rutledge & Garrett he started north on Hay street toward the interurban station to take an interurban car then shortly to be due; that as he approached the crossing plaintiff in error's train also approached it from the east, running between 50 and 60 miles per hour; that it was dark, and the headlight on the approaching engine was an oil lamp. There was some conflict in the evidence as to the signals given and as to the speed of the train. There were no eyewitnesses who were able to see the accident at the actual time it happened. Some of the witnesses saw the deceased approaching plaintiff in error's railway as the train in question was coming from the east, and said that he was running or going at what might be called a ‘dogtrot;’ that he disappeared in the steam that was escaping from the engine, and was struck by the engine; but the onlookers did not see him struck because of the steam or smoke from the engine. He died very shortly after being struck.

Numerous objections have been raised by plaintiff in error on the merits, and it is earnestly insisted that an instruction directing a verdict should have been given by the trial court. Plaintiff in error filed a plea of general issue, also a special plea. In the special plea it is averred that the Wink Packing Company, which employed the deceased at the time of his death, was a corporation organized under the laws of this state and engaged in an extrahazardous business, in which statutory and municipal ordinances and regulations were imposed for regulating, guarding, use and placing of machineryor appliances for the protection and safeguarding of its employees; that deceased was killed while engaged in the duties of his employment; that neither employer nor employee had elected not to be bound by the provisions of the Workmen's Compensation Act then in force; that plaintiff in error was engaged in the business of carriage by land of goods and passengers between points in the state of Illinois for hire; and that the provisions of the Workmen's Compensation Act applied to plaintiff in error and its employees. A demurrer was filed to this special plea and sustained, and the trial was had upon the general issue.

The Workmen's Compensation Act in force at the time of this accident was that of 1917. Laws 1917, p. 505. That act repealed the previous provisions stating what parties came within the Workmen's Compensation Act, and provided in section 3, among other things:

‘The provisions of this act hereinafter following shall apply automatically, and without election, to all employers and their employees engaged in any of the following enterprises or businesses which are hereby declared to be extrahazardous, namely.’

Then followed an enumeration of various articles of extrahazardous businesses, among which were included:

‘3. Carriage by land or water and loading or unloading in connection therewith. 4. The operation of any warehouse or general or terminal storehouses. * * * 8. In any enterprise in which statutory or municipal ordinance regulations are now or shall hereafter be imposed for the regulating, guarding, use or the placing of machinery or appliances or for the protection and safeguarding of the employees or the public therein; each of which occupations, enterprises or business are hereby declared to be extrahazardous.’

It is obvious in reading the opinion of the Appellate Court that that court held that the Workmen's Compensation Act did not apply because the deceased was not at the time of his death engaged in an extrahazardous occupation. In reaching this conclusion that court relied entirely upon the decisions of this court which construed the Workmen's Compensation Act as it existed in this state prior to the passage of said act of 1917. The opinion of the Appellate Court relies especially on the decisions of this court in Sanitary District v. Industrial Board, 282 Ill. 182, ...