North Chicago St. R. Co. v. Aufmann

• Decision Date: 14 June 1906
• Citation: 77 N.E. 1120,221 Ill. 614
• Parties: NORTH CHICAGO ST. R. CO. v. AUFMANN.
• Court: Illinois Supreme Court

221 Ill. 614

77 N.E. 1120

NORTH CHICAGO ST. R. CO.

v.AUFMANN.

Supreme Court of Illinois.

June 14, 1906.

Appeal from Appellate Court, First District.

Action by Joseph Aufmann against the North Chicago Street Railroad Company. From a judgment of the Appellate Court, affirming a judgment in favor of plaintiff, defendant appeals. Affirmed.

John A. Rose and Albert M. Cross (W. W. Gurley, of counsel), for appellant.

David K. Tone and H. M. Ashton, for appellee.

This is an action on the case in the circuit court of Cook county by appellee, Joseph Aufmann, against the North Chicago Street Railroad Company, appellant, to recover for personal injuries. The accident upon which the action was founded happened on December 23, 1896, between 7 and 8 o'clock p. m., at appellant's cable barn at the southwest corner of Wrightwood and Sheffield avenues, in the city of Chicago. Sheffield avenue extends north and south on the east side of the barn, and Wrightwood avenue extends east and west on the north side. Lincoln avenue comes in at the intersection of these two streets, near the northeast corner of the barn. The Lincoln avenue cable cars of appellant enter the barn at the northwest corner, pass along near the west side towards the south, then turn to the east, cross the barn, and go northward along the east side to the northeast corner, where they pass out into the street. The track upon which the trains make the trips through the barn is called the ‘loop.’ There are a number of storage tracks in the barn extending the whole length of it. During the hours of the day when traffic was slack the cable trains would enter the barn and be broken up, and the cars placed upon the various storage tracks until they were again ready for use. At the south side of the barn was a transfer track with a platform or table. Cars were pushed on this platform or table from the various storage tracks, and the platform moved east or west to some other storage track on which the cars were to be placed. Between the storage tracks, every 16 feet, were posts 12 inches square. At the time of the accident the appellee was a member of the barn crew which had in charge the making up and breaking up of trains and the transfer of cars from one storage track to another. On this occasion he was bringing a car from the transfer table north upon the third storage track from the east, with the intention of depositing it within the space inside the loop, and in order to accomplish this it was necessary to cross the loop tracks. A train came around the loop, and he was caught between the car which he was moving and one of those in the train and received the injury for which he sues. Upon a trial before the court and a jury, judgment was rendered in his favor for $1,500, which has been affirmed by the Appellate Court.WILKIN, J. (after stating the facts).

It is first insisted by appellant as a ground of reversal that the court committed error in sustaining appellee's demurrer to its plea of the statute of limitations. The accident happened on December 23, 1896. This suit was begun on April 22, 1898. The original declaration, of one count, was filed on May 7, 1898, and charged that the defendant was the owner of a certain barn, known as the ‘Lincoln avenue car barn’; that said barn was supplied with switches, turntables, and appliances for turning about, reversing, and removing cars from the main line; that a certain car was moving along the main line of the defendant in said barn, and that the plaintiff was switching another car from said main track, and the first mentioned car collided with the car which he was switching, striking the rear end of the same and injuring him while he was in the act of applying the brake to the car. The negligence charged was that defendant failed to furnish plaintiff sufficient assistance to enable him to properly perform his duties, and that the gripman in charge of the cable train was incompetent to perform his duties, and negligently propelled and ran the cable car against the plaintiff while the plaintiff was in the exercise of ordinary care. A demurrer was sustained to this declaration, and on June 22, 1898, within two years after the accident, plaintiff filed an amended declaration of one count, alleging that he was in defendant's employ as a groom, and while handling the car in question, and while in the exercise of ordinary care, the defendant, through its servants, negligently and carelessly ran another cable train upon and into the car upon which he was, thereby injuring him. To this amended count the defendant pleaded the general issue.

On January 17, 1901, more than two years after the alleged injury, the plaintiff filed two additional counts, the first charging that the defendant negligently ordered certain men, whose duty it was to handle the horse used in switching the cars, to leave this regular employment and to work upon the snow sweeper; that it was highly dangerous for one person to handle said cars and switch them without assistance; that plaintiff kept on switching said cars and acting under the immediate direction of said defendant without any person to assist him; and that, by reason of such negligence to supply sufficient assistance in managing the cars, plaintiff was unable to stop the car upon which he was working in time to avoid the injury. The second additional count charged that the defendant caused the plaintiff to remainand continue in said employment, promising that it would within a reasonable time supply him with additional assistance or help in starting the cars, and that, acting under the immediate direction of said defendant, and without any person to assist in switching the cars, plaintiff, while in the exercise of ordinary care, was injured by reason of said negligence. On February 5, 1901, plaintiff filed two other additional counts, the first of which alleged that he complained and notified the defendant that he was not supplied with any help or assistance in switching cars over said loop, and that the switching of said cars without help was highly dangerous; that it promised to furnish additional assistance within a reasonable time, and plaintiff, relying upon said promise, continued to operate said cars and was injured. The second additional count is substantially like the preceding one. To these additional counts of January 17th and February 5th the defendant filed a plea of the statute of limitations, to which plaintiff demurred, and the demurrer was sustained. The sustaining of this demurrer is assigned as error.

It seems to be conceded by both parties that, if the additional counts...