Morris v. the Indianapolis

• Decision Date: 28 February 1882
• Citation: 10 Bradw. 389,10 Ill.App. 389
• Parties: HARDINA S. MORRIS, Adm'xv.THE INDIANAPOLIS AND ST. LOUIS RAILROAD COMPANY.
• Court: United States Appellate Court of Illinois

10 Ill.App. 389

10 Bradw. 389

HARDINA S. MORRIS, Adm'x

v.THE INDIANAPOLIS AND ST. LOUIS RAILROAD COMPANY.

Appellate Court of Illinois, Fourth District.

February Term, 1882.

OPINION TEXT STARTS HERE

ERROR to the Circuit Court of St. Clair county; the Hon. WILLIAM H. SNYDER, Judge, presiding. Opinion filed April 14, 1882.

Mr. JAMES M. DILL, for plaintiff in error; that it is the duty of an employe, on discovering a defect in machinery, to report it to the master, and if he continues to work after discovering the defect, he will be deemed to have assumed the risk, unless he has been induced by his employer to believe the defect will be remedied, cited Camp Point M'f'g Co. v. Ballou, 71 Ill. 417; C. & A. R. R. Co. v. Munroe, 85 Ill. 25; Laning v. N. Y. C. R. R. Co. 49 N. Y. 521; Wharton on Negligence, § 220.

Notice of the defect to the foreman and master mechanic of the company, was notice to the company: C. & N. W. R. R. Co. v. Jackson, 55 Ill. 492; Hough v. Railway Co. 100 U. S. 213.

A railroad company should be held to the highest degree of vigilance in respect to its engines: C. & A. R. R. Co. v. Shannon, 43 Ill. 338; I. & St. L. R. R. Co. v. Estes, 96 Ill. 470.

A demurrer to evidence admits not only all that plaintiff's testimony has proved, but all that it tends to prove: Fent v. T. P. & W. R. R. Co. 59 Ill. 349; Phillips v. Dickerson, 58 Ill. 11; Crowe v. The People, 92 Ill. 231.

Mr. JOHN T. DYE and Mr. J. M. HAMILL, for appellee; that a servant can not recover for injuries resulting from defective machinery, if he voluntarily continues in the employment with full knowledge of the defect, cited Wharton on Negligence, § 220; Camp Point M'f'g Co. v. Ballou, 71 Ill. 417; Pennsylvania Co. v. Lynch, 90 Ill. 333; Priestly v. Fowler, 3 M. & W. 1; Assap v. Yates, 2 H. & N. 768; Gibson v. Erie R'y Co. 63 N. Y. 453; Laning v. N. Y. C. R. R. Co. 49 Ill. 534; Honner v. Ill. Cent. R. R. Co. 15 Ill. 550; C. C. & I. C. R. R. Co. v. Troesch, 68 Ill. 545.

BAKER, J.

This suit was brought by Hardina Morris, administratrix of George Morris, deceased, to recover damages resulting from his death; which, it is alleged, was caused by a defect in the pilot attached to the locomotive upon which he was acting as engineer, in the employment of defendant in error. It is claimed this pilot was negligently adjusted at such a height from the rail that it passed over a railroad tie across the track without removing it, and that the engine was thereby thrown from the track, and said Morris killed. The allegation in the second count in the declaration is, that defendant “had full notice and knowledge of the defective and improper construction and adjustment of said pilot, as aforesaid, and that said Morris was induced to remain in the employ of this defendant, by the defendant then and there inducing said Morris to believe and understand that said defect would be speedily remedied.” Upon a trial before the judge and a jury, after plaintiff rested her case, defendant demurred to the evidence, and there was joinder in demurrer. Thereupon the court sustained the demurrer, and rendered judgment against plaintiff for costs.

The demurrer did not, as a properly framed demurrer to evidence should, set out all such facts as the evidence established, and also all such other facts as the evidence tended to establish; but it simply embodied the evidence introduced before the jury for the purpose of proving the facts. However, upon this informal demurrer, admitting the truth of the evidence tending to prove the facts instead of admitting the facts themselves, as issue was joined, depend the rights of the parties to this controversy. The rule that must govern in ascertainment of those rights is this: that the demurrer admits not only all that the plaintiff's testimony has proved, but all that it tends to prove. In the early case of Dormady v. State Bank of Illinois, 2 Scam. 236, it was said: “Every fact is to be considered as admitted which the jury could infer in his favor, from the evidence demurred to.” See, also, Fent v. T. P. & W. R. R. Co. 59 Ill. 349, and Crowe v. People, 92 Ib. 231. The following facts we regard as established beyond controversy by the evidence admitted to be true by the demurrer:

1st. That just a week before Morris was killed, he and Estes discovered that the pilot of engine No. 30 was adjusted so as to stand and run above the rail from 7 to 7 1/2 inches at the front and six inches in the rear. The measurement was first made by Estes at East St. Louis, and afterwards by Thode and George Gray, at the round house in Mattoon, and again, almost immediately thereafter, by Sanborn.

2nd. Gray was foreman of the round-house at Mattoon, and Sanborn was the master mechanic.

3rd. A pilot properly adjusted should stand above the rail 4 inches at the heel and 4 1/2 inches at the nose.

4th. On the evening of February 7th, 1876, engine No. 30 was attached to the night passenger express train, and left East St. Louis at 7:15 P. M., and near Venice, in Madison county, a railroad tie had been placed across the track; the wheels of the engine came in contact with it, the engine was thrown from the track, and Morris was killed. The tie was over 7 inches thick; it was a new solid tie, and had no marks on it except those made by the wheels of the engine; the nose of the pilot had passed over it without touching it, thus showing that the pilot was running more than 7 inches high.

5th. Morris was 38 or 39 years old at the time of his death. He was earning $100 per month, and left a widow and child dependent on him for support.

6th. Defendant expressly admitted that “ said George Morris was killed as alleged in the declaration.”

7th. The accident was caused by the defective pilot. The defendant had full notice of this defect. The important question for consideration, is whether the proofs sufficiently sustain the averment in the declaration that “said Morris was induced to remain in the employ of the defendant, by the defendant then and there inducing said Morris to believe and understand that said defect would be speedily remedied.” Estes was fireman on the engine, and he says in his cross-examination, that when the defect was first discovered, Morris “gave me to understand that it would be fixed when we got to Mattoon; he was either going to have it fixed, or something to that effect, but I took it that way. I told him I would fire there, but I wouldn't fire it any more; and I would fire it there on a daylight run. He either said it would be fixed, or he was going to have it fixed, one of the two; it was to that effect. That is the way I took my impression; which one of the two words he used, I don't know.”

It also appears from the testimony of this witness, that Morris had been running as engineer on defendant's road for seven or eight years, and probably much longer. Thode says: “My attention was called to it by Morris, the engineer; he wanted me to change it and let it down. I told him I had no authority without he went to George Gray; that I had no orders to work for engineers only as ordered by Gray or Sanborn, the master mechanic. George Gray then came to me and wanted me to fix it, and took the rule and measured it, and he went to the heel and measured it. I told George Gray our time is mighty short, and we had plenty to do, and I didn't see how we could get around to it. He told me to put on a new pilot; I told him I had none; he went around with me in the machine shop to hunt for one, and couldn't find one; none of them were high enough. He went back with me to the engine, and told me to let it down; to bore new holes in the bumper-beams and lengthen out the braces. He started to order the engine in the round house, and I started to the shop, and I met Mr. Sanborn, the master mechanic, and reported to him. He went back to the engine and made some look at it. I told him I got such orders to let the pilot down, or get a new pilot. I told him we were on short time, and if he gave us full time, I could make a new one, or a little over time. He said he had no orders; he couldn't do it. I told him then we have to let it down some; put a new cap on top of her pilot, and let her down some; bore new holes into her bump. He says, that is a new bump; I won't have her bored out to pieces. He wouldn't have it done by a damned sight. He went to his work, and I went to my business; that ends the pilot. Mr. Sanborn went to his work and...