North Chicago Rolling-Mill Co. v. Johnson

• Decision Date: 15 May 1885
• Citation: 114 Ill. 57,29 N.E. 186
• Parties: NORTH CHICAGO ROLLING-MILL CO. v. JOHNSON.
• Court: Illinois Supreme Court

114 Ill. 57

29 N.E. 186

NORTH CHICAGO ROLLING-MILL CO.

v.JOHNSON.¹

Supreme Court of Illinois.

May 15, 1885.

Appeal from appellate court, first district.

Action on the case by Lars F. Johnson against the North Chicago Rolling-Mill Company for personal injuries. Plaintiff obtained judgment, which was affirmed by the appellate court. Defendant appeals. Affirmed.

Willard & Driggs, for appellant.

Brandt & Hoffman, for appellee.

SCHOLFIELD, C. J.

Appellant was possessed of a rolling-mill, and other works connected with it, and of adjoining yards, upon which were railway tracks used for the movement of cars belonging to appellant and to other parties with whom it did basiness, under the management and control of employes of appellant. Appellee was in the employ of appellant as a common laborer, and had been, for about one month, engaged in removing rails from its mill and placing them upon cars, though it was within the line of his duty to unload bricks from cars, and, in general, to perform any common labor required of him in and about the mill. He was under the immediate charge and control of one Clute, assistant foreman of the rail-mill. He and a number of co-laborers were directed by Clute to unload the bricks from a car standing on one of appellant's tracks near the rolling-mill, which they were proceeding to do, when, before they had quite finished the work, a train of cars was backed down the track on which the car they were unloading was standing, and against that car with such violence as to suddenly put it in motion, and thereby to knock appellee down and break his leg, and otherwise seriously injure him. The train causing this injury was under the immediate charge and control of one Crowley, appellant's yard-master, and neither Clute had any charge or control of the men operating the train, nor Crowley any charge or control of appellee and the other men engaged in unloading the bricks. Appellant claims that the injury was caused, primarily, by a defective link coupling the cars somewhere near the middle of the train, which breaking, the train parted, and as it was being backed or pushed, with the engine in the rear, that part in advance beyond this break could not thereafter be controlled by the engine; and, secondarily, by a defective brake-wheel on the extreme advancing car, whereby it was impossible to check the momentum of the cars, the grade descending from the point at which the break occurred to the car from which the bricks were being unloaded. Crowley had caused the car-load of bricks to be placed where it was, and shortly before the injury had sent men to remove it, but, finding that it was not yet unloaded, had countermanded that order, and directed that certain coal-cars be brought and backed in, and these composed the train causing the injury. He claims to have given a signal to stop the train when he saw that it was likely to hit the brick-car, and also that when he saw, afterwards, that the train had not stopped, he cried out to the men unloading the brick to look out, etc. It is not claimed that any bell was rung or whistle sounded to give warning of the approach of this train, and it is quite evident that no cries or words of warning reached the ears of appellee, and of some of the other laborers.

On the trial, appellant's counsel asked a witness, who was a switchman in appellant's yard, whether he was acquainted with the manner of switching in other yards, as to having the cars ahead or behind the engine. The question was objected to by appellee's counsel, and the objection was sustained by the court. It is now urged that this ruling was erroneous. This contention results, as we conceive, from a misapprehension of the issue before the jury. Counsel seem to understand that the fact the cars were pushed rather than pulled by the engine is charged in the declaration as the negligence whereby the injury was caused. The gist of the charge of negligence, in each count, is that the car wherefrom appellee and others were unloading bricks was, without any previous notice to them, by the ringing of the bell or otherwise, suddenly started or driven forward by the collision of the cars that were being pushed. The same result, precisely, might have been produced by pulling the cars. Whether it was negligent to back up a train is nowhere made a question, but the negligence charged lies wholly in the backing of the train, without previous notice, against a standing car which is being unloaded. It is not possible, therefore, that what may have been done in other yards in switching, in respect of having the cars before or behind the engine, could have in any degree enlightened the jury as to this issue. We do not, therefore, think anything decided in Pennsylvania Co. v. Stoelke, 104 Ill. 201, and Pennsylvania Co. v. Hankey, 93 Ill. 580, has any relevancy.

Again, counsel for the appellant asked the same witness. ‘What, if anything, was the rule or custom as-to laborers unloading and loading cars, and switchmen, with reference to the laborers looking out for the movement of their car while being loaded or unloaded?’ Appellee's counsel objected to the question, and the court sustained the objection, and this ruling also, is claimed to be erroneous. It is sufficient, to sustain this ruling, that it was not shown that there was any rule or custom in this respect, nor did the counsel offer or propose to prove any particular custom upon the subject. Apart from this, however, the witness seems to have been allowed to...