Mobile & O.R. Co. v. Vallowe

• Decision Date: 21 February 1905
• Citation: 214 Ill. 124,73 N.E. 416
• Court: Illinois Supreme Court
• Parties: MOBILE & O. R. CO. v. VALLOWE.

214 Ill. 124

73 N.E. 416

MOBILE & O. R. CO.

v.VALLOWE.

Supreme Court of Illinois.

Feb. 21, 1905.

Appeal from Appellate Court, Fourth District.

Action for personal injuries by Matin H. Vallowe against the Mobile & Ohio Railroad Company. A judgment for plaintiff was affirmed by the Appellate Court, and defendant appeals. Affirmed.

Lansden & Leek and Charles Morrison, for appellant.

Bollinger, Winkelmann & Baer, for appellee.

CARTWRIGHT, J.

Appellee brought this suit in the circuit court of Monroe county to recover damages on account of an injury sustained by him while in the employ of appellant as a brakeman. The suit was brought against appellant and the Willis Coal & Mining Company, but it was dismissed as to the mining company, and an amended declaration was filed, charging the appellant with negligence in permitting posts to stand so near its side track as to not leave sufficient room for the plaintiff to perform his work, and in failing to notify him of the danger arising therefrom, and alleging that while in the performance of his duties, and while on the ladder, ascending the side of a car, with due care and caution for his own safety, he was knocked off by a post and injured. The plea was the general issue, and upon a trial there was a verdict for $1,500, on which judgment was entered. The Appellate Court for the Fourth District affirmed the judgment.

It is contended that the trial court erred in refusing to direct a verdict of not guilty, on the motion of the defendant, at the close of the evidence, for the reasons that the defendant was guilty of no negligence in using the side track with the posts situated as they were, that the plaintiff assumed the risk of danger from the posts, and that he was guilty of negligence in attempting to ride upon the side of the car while passing the posts. As related to these questions, the evidence was as follows: Plaintiff was 32 years old, and commenced work for the defendant on August 3, 1901, as a brakeman. On December 31, 1901, he was with his train at Willisville Station, where the Willis Coal & Mining Company has a coal mine. He had been on that division about a month, and had frequently been at that station. There was a side track there, used for pushing empty cars under a coal chute, to be filled with coal and hauled out on the main track. The chute was supported by upright posts eight inches square, and about seven feet apart. There was a distance of about one foot between the side of a coal car and the row of posts. The day was dark, with a misting rain, and smoke did not rise from the ground. A number of cars were being backed in under that coal chute, where there was a good deal of steam, and a great deal of noise from the coal. Plaintiff attempted to climb up the side of the third car from the rear, and was struck by a post and fell off, and his thigh bone was broken.

The only evidence touching the averment of the declaration that the defendant negligently permitted the posts to stand near the side track was the testimony of several witnesses for the defendant that the coal chute, and posts supporting the same, were properly constructed; that the posts were necessary for the support of the coal chute, and were located as far from the track as it was possible to locate them and operate the coal chute; and that it was necessary to set them in that position in order to operate the shaker and the screens and screen the coal. It was conceded that the posts were so near to the passing cars that a brakeman could not safely climb upon the side of a car while passing the posts, and that he would either have to get on the car at some other time, or climb upon the end of the car; but the only evidence in the case was that such construction was necessary and proper, and that there was no fault or negligence in that respect.

The defendant was bound to exercise ordinary care to provide a reasonably safe place for plaintiff to do his work, but, if reasonable care was exercised, and there was no fault or negligence on the part of defendant in having the posts near the track, it would not be liable merely because there was danger. If the defendant furnished as good and safe a place to work as reasonably could be furnished, it would not be guilty of negligence. The operation of trains is attended with danger, and liability in such a case does not depend upon the presence of danger, but upon the existence of negligence on the part of the employer. 3 Elliott on Railroads, §§ 1268, 1308. It was not sufficient to show danger on account of the location of the posts but it was also necessary to show that danger arose from some fault or negligence of the defendant. The cases where railroad companies have been held liable for injuries resulting from posts or structures near the track have been where negligence was imputed to them. In Chicago, Burlington & Quincy Railroad Co. v. Gregory, 58 Ill. 272, the ground of liability was that the mail catcher was negligently placed so near the track as to be a source of danger, when it might have been more distant. In Chicago & Iowa Railroad Co. v. Russell, 91 Ill. 298, 33 Am. Rep. 54, the telegraph pole was permitted, by the negligence of the railroad company, to be in dangerous proximity to the track. So, also, in Chicago & Alton Railroad Co. v. Howell, 208 Ill. 155, 70 N. E. 15, the liability depended upon the negligence of the defendant both in respect to the proximity and kind of switch...