Pittsburgh, Ft. W. & C. Ry. Co. v. Callaghan

• Decision Date: 11 October 1895
• Citation: 157 Ill. 406,41 N.E. 909
• Court: Illinois Supreme Court
• Parties: PITTSBURGH, FT. W. & C. RY. CO. v. CALLAGHAN.

157 Ill. 406

41 N.E. 909

PITTSBURGH, FT. W. & C. RY. CO.

v.CALLAGHAN.¹

Supreme Court of Illinois.

Oct. 11, 1895.

Error to appellate court, First district.

Action on the case by Michael Callaghan against the Pittsburgh, Ft. Wayne & Chicago Railway Company. Plaintiff obtained judgment, which was affirmed by the appellate court. 50 Ill. App. 676. Defendant brings error. Affirmed.W. E. Mason and George Willard, for plaintiff in error.

Duncan & Gilbert, for defendant in error.

This was an action on the case for personal injuries, brought by defendant in error against plaintiff in error in the circuit court of Cook county. The declaration contains two counts, the first charging negligence in the management and operation of a certain engine, under the control of defendant, whereby certain cars were propelled against certain other cars, and driven against plaintiff while, in the exercise of ordinary care, he was crossing the track of defendant, whereby he was injured. The second count is similar to the first, except that it charges that it was the duty of defendant to place a brakeman on the hindmost car. To this declaration the general issue was pleaded.

The plaintiff below was, at the time of the injury, a carpenter, in the employ of Nelson Morris & Co. The packing house of Morris & Co. stands on the northwest corner of the intersection of Forty-Third street, running east and west, and Loomis street, at right angles. The southeast corner of the packing house is curved to conform with railroad tracks turning from Loomis street west into Forty-Third street. West of Loomis street, and opposite the packing house, was a large carpenter shop, and various structures belonging to Morris & Co. and others. At the time of the injury certain railroad tracks ran north and south on Loomis street, used for the purpose of reaching these industries. Near Forty-Third street there branched west from Loomis street a track which, when fully curved into Forty-Third street, was divided by switches into several tracks, known as ‘Swift's Tracks,’ ‘Nels Morris' Track,’ and ‘Team Track.’ On both the north and south sides of Forty-Third street westward were located several manufacturing establishments, employing a large number of men, and this strip of ground occupied by tracks was used by them as a common passage in passing between these various buildings. As a means of passage, also, between the buildings of the Nelson Morris & Co. plant, one or more bridges or viaducts were constructed over these tracks, but were not exclusively used; most of the employés and other persons having occasion to pass back and forth being in the habit of crossing on a level with the tracks, and passing around or between cars when necessary. An average of about 1,500 employés and other persons, each day, crossed these tracks on their travel in the course of their business. The mode of conducting the switching of cars at these tracks was as follows: The railroad cars were taken to and from Morris & Co.'s plant by means of locomotive engines, and the switching necessary to be done for the plant was done by the same means, and on the tracks above described. Such switching was of daily occurrence, and was done in a manner usual and customary to that locality. For example, if there were cars on the platform track which were to be taken off and away, and such cars were mixed with other cars on the same track, then the locomotive was attached to the easterly end of the line, and the track, in switchman's parlance, was ‘pulled,’ and the cars thrown, alternately, down upon one or the other of the tracks, as was necessary to select out those desired. The engine did not keep hold of the cars until brought to a standstill, nor did the switchman ride or follow them to point of stoppage; but they were given a reasonable momentum, and cut off, and allowed to run up themselves. In that way concussions between standing and moving cars took place, with varying degrees of force, and at points so far away from the engine as that its bell might or might not be heard. This mode of switching had been followed at the Nelson Morris & Co. plant, and on those tracks, during the year and a half that the plaintiff below had been employed there, next before the accident, and his testimony shows he understood it perfectly well. The supplies for the carpenter shop were kept in the packing house, and on October 26, 1889, defendant in error, being in need of nails, started to cross over to get them. He did not go over the bridge or viaduct, which necessitated the climbing of stairs, but attempted to cross the tracks. Two box cars were standing on the south track, with no engine attached. As defendant in error attempted to cross over near the west end of these, a flying switch was made, and two other cars were thrown in on this track, against the stationary cars, moving them about two car lengths. Defendant in error was about opposite the bumper of the west stationary car when they were struck, and was knocked down, and badly injured. A jury in the circuit court gave plaintiff a verdict for $13,000. By order of that court a remittitur of $3,000 was entered, whereupon the court rendered judgment on the verdict for $10,000, after overruling motion for new trial. An appeal was taken to the appellate court of the First district, where the judgment was affirmed. From that judgment this writ of error is prosecuted.

PHILLIPS, J. (after stating the facts).

The principal error assigned on this record is in the refusal of the trial court to give to the jury certain instructions asked by plaintiff in error. At the close of the evidence of the plaintiff in the trial below, the defendant below moved the court to instruct the jury to find for defendant, which motion was renewed at the close of argument, and by the court denied. A consideration of the refusal of the trial court to give this instruction involves two questions raised: First. Was plaintiff in error responsible for injury received? Second. Did the negligence of defendant in error contribute to the injury to such an extent as to bar a recovery?

The question as to whether or not the engine which propelled the cars in such a manner as to injure defendant in error belonged to plaintiff in error was one of fact, and if there was evidence tending to show such fact, then it was not error for the court to refuse the general instruction to find for defendant. Railway Co. v. Richards, 152 Ill. 59, 38 N. E. 773. The evidence shows that at the time of the injury these tracks were operated by the Railway Switching Association, which was not a corporation, but an association of several roads, jointly engaged in the operation of such tracks. The former manager of the...