Morgan v. New York Cent. R. Co.

• Decision Date: 07 December 1927
• Docket Number: No. 18114.,18114.
• Citation: 327 Ill. 339,158 N.E. 724
• Parties: MORGAN v. NEW YORK CENT. R. CO.
• Court: Illinois Supreme Court

327 Ill. 339

158 N.E. 724

MORGAN

v.NEW YORK CENT. R. CO.

No. 18114.

Supreme Court of Illinois.

Oct. 22, 1927.

Rehearing Denied with Modification Dec. 7, 1927.

Error to Third Branch Appellate Court, First District, on Appeal from Superior Court, Cook County; Harry B. Miller, Judge.

Action by Charles F. Morgan against the New York Central Railroad Company. Judgment for plaintiff was affirmed by the Appellate Court, and defendant brings certiorari.

Reversed.

Farmer, J., dissenting.

Glennon, Cary, Walker & Murray, of Chicago (Sidney C. Murray and Marvin A. Jersild, both of Chicago, of counsel), for plaintiff in error.

E. Leslie Cole and Charles C. Spencer, both of Chicago, for defendant in error.

DUNN, J.

The Appellate Court for the First District affirmed a judgment for $5,000 recovered by Charles F. Morgan against the New York Central Railroad Company in the superior court of Cook county for personal injuries received on January 30, 1923, as the result of a collision with an engine of the defendant in the city of South Bend, Ind. The record has been brought to this court by a writ of certiorari.

The cause was submitted to a jury on a declaration which contained two counts charging the defendant with willful and wanton injury, the facts constituting such willful and wanton injury being that the defendant's servants operated a train of the defendant, in violation of an ordinance of the city of South Bend, at a greater rate of speed than eight miles an hour and without ringing the engine bell; that they saw the plaintiff in a dangerous position with reference to the train in ample time to have warned him or to have stopped the train before reaching him, but willfully and wantonly and in utter disregard of life ran the train against him and injured him.

The evidence showed that the track of the defendant in South Bend runs from southwest to northeast across Ford, Harris, Walnut, Webster, and Arnold streets. Ford street runs east and west and the others north and south. At the Arnold street crossing the property of the Oliver Chilled Plow Works lies on the south side of the railroad track and on the east side of the street. North of the track of the defendant, and parallel to it, are six or seven tracks of the Grand Trunk Railway, the closest being about 25 feet distant. Morgan had been a railroad man all his life, and from 1917 to 1920 had been yardmaster of the Grand Trunk in its yards at South Bend and was familiar with the tracks and knew the movement of the trains. At the time of the accident he had been employed by the Oliver Chilled Plow Works for six months. On November 3, 1922, he had suffered a paralytic stroke. He was confined to his home until December 3, when he returned to work as a car clerk and weigh clerk. On the morning of January 30, Smith, the yardmaster for the plow works, had telephoned to Kidder, the yardmaster of the plaintiff in error, to have some empty cars set at the plow works. At noon Smith instructed Morgan to keep after the New York Central, and after the 12 o'clock whistle blew Morgan had his lunch and walked to the New York Central office to see Kidder personally. Kidder was not there. Morgan paid his dues as a member of the Railway Relief Association to Wiegner, the local secretary, who was employed by the plaintiff in error as a telegraph operator at the yard office. Morgan knew that the plaintiff in error operated a train east which was due at the Oliver street station at 12:26 p.m. While at the yard office he heard engines moving, and when he started back at 12:38 p. m. he supposed the train had gone. He looked and there was no train in sight. He then walked east along a path on the right of way of the plaintiff in error south of its track. Following this path he crossed diagonally Ford street and Harris street. Halfway between Harris and Walnut streets an alley extended east from the railroad right of way to Walnut street. The path continued along the south side of the track to Walnut street, which it crossed, and to and across Arnold street to the plow works. The alley was about 125 feet from Walnut street and a board fence extended along the south side of the right of way. For the length of this fence the path was between it and the railroad track, the space between the south rail and the fence being four feet and nine inches, and at its nearest point it was only 30 3/8 inches between the overhang of the engine and the fence. The path was slightly depressed, the ground sloping upward toward the fence and the track. After Morgan had proceeded a few steps in the passage between the fence and the track, an engine came behind him, and either he was struck by the end of the pilot beam or he slipped and fell against the cylinder and received the injuries for which he sues.

For many years employees of teh Oliver Chilled Plow Works and other pedestrians have made use of the New York Central's private right of way for travel from Ford street to Arnold street, along the path which Morgan was using when he was injured. The train that injured him was a regular passenger train from Streator, Ill., to South Bend. At South Bend the railroad company had two stations, one known as Oliver station, southwest of the Ford street crossing, about 300 yards from the place of the accident to Morgan, at which the train was due at 12:26 p. m. The other station is the South Bend passenger station, which is the end of the run and is about a mile east of Oliver. The running time between the two stations is five minutes, and the train is due at the South Bend station at 12:31.

[1][2] The plaintiff in error contends that the court erred in...