Milauskis v. Terminal R. Ass'n of St. Louis

• Decision Date: 20 February 1919
• Docket Number: No. 12396.,12396.
• Citation: 286 Ill. 547,122 N.E. 78
• Parties: MILAUSKIS v. TERMINAL R. ASS'N OF ST. LOUIS.
• Court: Illinois Supreme Court

286 Ill. 547

122 N.E. 78

MILAUSKIS

v.TERMINAL R. ASS'N OF ST. LOUIS.

No. 12396.

Supreme Court of Illinois.

Feb. 20, 1919.

Error to Appellate Court, Fourth District, on Appeal from City Court of East St. Louis; W. M. Vandeventer, Judge.

Action by Stanley Milauskis against the Terminal Railroad Association of St. Louis. Judgment for plaintiff was affirmed by Appellate Court, and defendant brings certiorari. Affirmed.

T. M. Pierce, of St. Louis, Mo., and Edward C. Kramer, Rudolph J. Kramer, and Bruce A. Campbell, all of East St. Louis, for plaintiff in error.

Paul Irose, of Chicago, and David E. Keefe and W. E. Hadley, both of East St. Louis, for defendant in error.

CARTER, J.

Defendant in error secured a verdict against plaintiff in error in the city court of East St. Louis for $2,000 for injuries alleged to have been caused by the negligence of plaintiff in error. From a judgment entered thereon the case was taken by appeal to the Appellate Court, and the judgment of the trial court was affirmed. The case has been brought here on a petition for certiorari.

From the record before us it appears that plaintiff in error owns and controls a large number of railway tracks in East St. Louis, in St. Clair county. Said tracks consist of one lead track and 30 or 35 yard tracks, extending in a northerly and southerly direction across St. Clair avenue, in said city. St. Clair avenue runs in a northwesterly and southeasterly direction, and the tracks crossing it run in a southwesterly and northeasterly direction; but the briefs give the directions as if St. Clair avenue ran east and west and the tracks ran north and south, and we shall use those directions in writing this opinion. Plaintiff in error's lead track crosses St. Clair avenue a little north of Cahokia creek. The yards of plaintiff in error are south of Cahokia creek; the lead track being on the said of the yards. Where each of the yard tracks comes into the lead track there is a switch; the switchstand in each case being situated about 4 feet west of the westerly rail of the lead track. The yard tracks, the lead track, and the space extending from the lead track westerly past the switchstands were ballasted with cinders, thus making a smooth space along the west side of the lead track, and the switchmen, in operating the switches and in walking along with and getting on and off the cars handled on this lead track, had made a pathway along the west side of this lead track that had been in use there for many years.

Defendant in error had been engaged at work for the Armour Car Lines for about 5 months prior to July 16, 1913, the day he received the injury. An ice plant belonging to the Armour Car Lines was located about a quarter of a mile south of St. Clair avenue, near said lead track. It was used for reicing the cars, and did business with Armour & Co., Swift & Co., Morris & Co., and other packing plants and with certain fruit dispatchers. On the day of the injury the defendant in error was at work in this ice plant. Armour & Co.'s office was located near the lead track, about half a mile northerly from the ice plant. The ice plant was surrounded by the railroad tracks of plaintiff in error, and, as we understand the record, there was no public way for the employés of the Armour Car Lines to reach the ice plant from the streets of East St. Louis, except by passing over plaintiff in error's property. There was a beaten track about 4 feet wide on the west side of the lead track extending from below the ice plant up to St. Clair avenue, and the men engaged at the ice plant usually came from St. Clair avenue down across and over plaintiff in error's railroad tracks and along this beaten track. The cars of the several companies that needed re-icing were placed upon the tracks of plaintiff in error and run down to the ice plant, and were there iced and then taken back to the main or lead track for shipment. Defendant in error and 5 or 6 of his associates on the day in question received orders for the payment of their wages, and by direction of the Armour Car Lines officers went to the office of Armour & Co. and cashed their orders, and were returning to their work at the ice plant. After crossing St. Clair avenue, they passed south on the west side of the lead track along this beaten path; and after going a short distance south from St. Clair avenue defendant in error was struck and run over by one of plaintiff in error's cars and badly injured, losing his left arm and part of the fingers of the right hand.

The evidence tends to show that, just after defendant in error had left St. Clair avenue, going south, he passed a train consisting of an engine and 5 or 6 cars on one of plaintiff in error's tracks, and it further appears that very shortly thereafter the employés of plaintiff in error, without sounding the whistle or ringing the bell, pushed the rear car of this train or cut of cars in upon this lead track, and it was permitted to run down the track without any brakeman and without warning of any kind being given of its approach; that it came upon defendant in error from the rear and struck him; that he and another employé were walking side by side along this beaten track, and 3 or 4 of the others were walking singly behind him, and that the car passed by them before it struck defendant in error; but that they had no warning of its approach and no time to warn the others. The evidence also shows that at this time another train was passing along the tracks close by, making considerable noise, and partially, if not entirely, for this reason, neither defendant in error nor any of his associates heard the approach of the shunted car which caused the injury. The evidence further tends to show that during or prior to May, 1913, there had been some stealing or pilfering in plaintiff in error's yards, and the superintendent of the Armour Car Lines and the superintendent of the ice house had a conference with the general superintendent of plaintiff in error with a view of stopping the men from traveling over the railroad tracks, generally, in said yards and to confine the traveling of their employés to a particular place. As a result of this conference it was agreed that in going to and from their work the employés of the Armour Car Lines at said ice plant were to travel along this beaten pathway on the west side of the lead track, where defendant in error was traveling at the time he was injured. The employés of the Armour Car Lines were called together after this conference and directed to thereafter travel along this beaten way in going to and from work. Defendant in error was present when these directions were given.

The original declaration of defendant in error filed on his behalf in the city court contained three counts. The first, after setting forth in a general way the facts as above stated, further averred that while defendant in error was in the exercise of due care for his own safety, plaintiff in error carelessly, negligently, and without warning pushed a large number of freight cars along and over said track, by reason whereof defendant in error was struck and injured. The second and third original counts were substantially the same as the first, except as to certain details. More than two years after the alleged injury amended counts were filed to the declaration, alleging substantially the same negligent acts on the part of plaintiff in error as in the original counts and alleging the facts substantially as they were alleged in the original counts; the only difference in the amended and original counts being that the original counts charged that defendant in error was in the employ of Armour & Co. and the amended counts charge that he was in the employ of the Armour Car Lines, and the original declaration also charged that it was necessary to amputate defendant in error's right arm and the fingers of his left hand, while the amended counts charge that it was necessary to amputate his left arm and the fingers of his right hand.

Plaintiff in error upon the trial in the city court filed a plea of the statute of limitations to the amended counts, to which plea a demurrer filed by defendant in error was sustained. If the original counts stated the same cause of action as was stated by the amended counts, and only stated them in a different manner, then the demurrer was properly sustained to the plea of the statute of limitations; but if the amended counts set out a new cause of action, other and different from that stated in the original counts, then the demurrer should have been overruled, and the plea of the statute of limitations sustained. Swift Co. v. Gaylord, 229 Ill. 330, 82 N. E. 299;St. Louis Merchants' Bridge Railway Ass'n v. Schultz, 226 Ill. 409, 80 N. E. 879;McInerney v. Western Packing Co., 249 Ill. 240, 94 N. E. 519;Vogrin v. American Steel Co., 263 Ill. 474, 105 N. E. 332.

This court has stated that in actions of this character it is necessary to allege and prove, in order to make out a case, three things: (1)...