Nordhaus v. Vandalia R. Co.

• Decision Date: 08 December 1909
• Citation: 89 N.E. 974,242 Ill. 166
• Parties: NORDHAUS v. VANDALIA R. CO.
• Court: Illinois Supreme Court

242 Ill. 166

89 N.E. 974

NORDHAUS

v.VANDALIA R. CO.

Supreme Court of Illinois.

Oct. 26, 1909.

Rehearing Denied Dec. 8, 1909.

Appeal from Appellate Court, Fourth District, on Appeal from Circuit Court, St. Clair County; R. D. W. Holder, Judge.

Action by J. W. Nordhaus, administrator, against the Vandalia Railroad Company for the death of his intestate. From a judgment of the Appellate Court affirming a judgment for plaintiff, defendant appeals. Affirmed.S. W. Fordyce, Jr., and L. D. Turner, for appellant.

McHale & Summer and D. J. Sullivan, for appellee.

CARTWRIGHT, J.

Appellee, J. W. Nordhaus, as administrator of Frank Zehak, brought this suit in the circuit court of St. Clair county against the Vandalia Railroad Company, appellant, and the St. Louis National Stockyards, to recover damages for the death of said Frank Zehak, alleged to have been caused by the negligence of the defendants. The defendants severally pleaded the general issue, and upon a trial there was a verdict of guilty as to both. The court granted motions of the defendants for a new trial, and upon the second trial a verdict was against returned finding both defendants guilty and assessing the damages at $1,500. The defendants again moved for a new trial, whereupon the plaintiff dismissed the suit as to the St. Louis National Stockyards, and the court entered judgment against the plaintiff, in favor of that defendant, for its costs. The court then overruled the motion of the Vandalia Railroad Company for a new trial, and entered judgment against it on the verdict. The Appellate Court for the Fourth District affirmed the judgment, and from the judgment of the Appellate Court this appeal was taken.

The first proposition of counsel for appellant is that its demurrer to the amended declaration ought to have been sustained. The Appellate Court replied to that proposition that the right to assign error on the overruling of the demurrer was waived by pleading the general issue, and counsel say that the Appellate Court was wrong because the statute provides for exceptions during the progress of any trial and the preservation thereof by a bill of exceptions and the right to assign error on the ruling excepted to, and the bill of exceptions in this case shows an exception to the ruling in question. The decision of the court on the demurrer was a part of the record without a bill of exceptions, and was not properly included in the bill. The law has always been that a demurrer is waived by pleading over. Going back to the very beginning of decisions in this state, it was so held in Beer v. Phillips, Breese, 44, Vincent v. Morrison, Breese, 227, Cobb v. Ingalls, Breese, 223, and Peck v. Boggess, 1 Scam. 281. Formerly, if the party demurring wished to plead, he was required to obtain leave to withdraw his demurrer and to apply to the court for leave to plead over (Godfrey v. Buckmaster, 1 Scam. 447), and that practice is still followed to some extent, although it is not now required that a party should ask leave to withdraw his demurrer.

The next complaint is that the court on the first trial refused to direct a verdict of not guilty as to the appellant. Courts of appeal only review final judgments, and, as the first trial did not result in a judgment, there is nothing relating to it to be reviewed. When the verdict was set aside and a new trial granted, the case was in the same position as though it had never been tried. Frank Zehak left a mother, three brothers, and two sisters, and appellant contends that the court erred in admitting in evidence applications by him for post-office money orders payable to his mother, in Hungary. The objection is that there was no evidence that the money orders were ever sent to the mother or received by her. There was evidence by a son living with the mother in Hungary that she received money orders from the deceased, and there was evidence that he contributed to her support considerable amounts, which were transmitted by money orders. The court did not err in the ruling.

On the second trial appellant again asked the court to direct a verdict of not guilty as to it, and the motion was denied. The evidence for the plaintiff, which for the purposes of the motion was to be taken as true, tended to prove the following facts: Appellant owned and operated a railroad running from the city of East St. Louis northeasterly through the county of St. Clair, with railroad yards in and near East St. Louis, known as the ‘Willows yards.’ The St. Louis National Stockyards was the owner of yards used for the live-stock business, with a track connecting the same with the Willows yards and known as the ‘stockyards connection.’ The National Stockyards had switch engines, and was accustomed to make up trains of cars loaded in its yards, and deliver them, by means of its switch engines and crews, to the railroads over whose lines the cars were consigned upon the stockyards connection in appellant's yards. On October 23, 1907, H. W. Brunkhorst, track foreman over a gang of 10 or 12 sectionhands, of whom Frank Zehak was one, in the employ of appellant, desired to repair the track by unloading cinders for that purpose. Said foreman had two cars loaded with cinders at Rose Lake, and called upon the conductor of a switching crew of appellant to move the cars to the place where they were to be unloaded. They were drawn by the engine on the track and headed east, with the two cinder cars next the engine and five refrigerator box cars west of them. One car was unloaded and the train was moved along for unloading the other. The cinder cars were open cars, with sides about four feet high and with drop doors in the bottom to let out the cinders. When all the cinders that would fall out by opening the door in the bottom of a car had passed out, the sectionmen were required to shovel the remaining cinders through the opening. The train crew was under the direction of its own foreman, the conductor, and it was his duty to take proper precautions to prevent being run into by other trains or cars. The sectionmen were under the control of Brunkhorst, and had no relation with the train crew, but Brunkhorst had a right to command the services of the switch engine and control the location of the cinder cars for the purpose of unloading. The stockyards delivery was due at about 2:30 o'clock every afternoon, but on that day it was late and did not arrive until about 4:00 o'clock. The view from the cinder cars to the west was obstructed by the refrigerator cars and box cars stored on other tracks. The conductor sent out a flagman to watch for the stockyards delivery and protect the train. He had been out about 15 or 20 minutes before the stockyards train arrived, but only went about two car lengths west of the train. The stockyards delivery consisted of a train of 45 cars, pushed by a switch engine at the west end. There was a switchman on the east end, and, when that train was...