Ryan v. the Chicago & Nw. Ry. Co..

• Decision Date: 30 September 1871
• Citation: 60 Ill. 171,14 Am.Rep. 32,1871 WL 8107
• Court: Illinois Supreme Court
• Parties: ANDREW RYANv.THE CHICAGO & NORTHWESTERN RAILWAY COMPANY.

60 Ill. 171

1871 WL 8107 (Ill.)

14 Am.Rep. 32

ANDREW RYAN

v.THE CHICAGO & NORTHWESTERN RAILWAY COMPANY.

Supreme Court of Illinois.

September Term, 1871.

APPEAL from the Superior Court of Cook county; the Hon. JOSEPH E. GARY, Judge, presiding. Messrs. FULLER & SMITH, for the appellant.

Mr. B. C. COOK, for the appellees.

Mr. JUSTICE WALKER delivered the opinion of the Court:

This was an action on the case, brought by appellant, in the Superior Court of Chicago, against appellees, to recover for injuries received by being struck by one of the engines of the company. Appellant was employed by the company as a common laborer at their carpenter shop in Chicago. And on the 22d day of February, 1868, after the six o'clock whistle had sounded to release the hands from labor, appellant started for his home. He, in going there, crossed appellees' railway tracks, and in doing so, was struck by one of their engines and severely injured. Appellant testifies that on approaching the track, he looked along it in both directions, and no engine was in sight, and the engine which struck him came upon him from the opposite side of the tank house on a curve on the main track; that no bell was ringing or whistle sounding, and the engine ran at an unusual rate of speed.

On the other side, witnesses swore that the bell was ringing, the engine was moving at a rate of speed not exceeding five miles an hour, and that the track was straight, and the engine could be seen at least two hundred feet in the direction from which it came. Each party prepared and asked instructions, which the court refused to give, but, on his own motion, gave this:

“If the plaintiff was in the service of defendants, and his route to and from his work was over the tracks of the defendants' railway, then the law is established in this State that he took upon himself the risk of being hurt by passing engines on such tracks, and the defendants are not liable to him for any injury that he received from such an engine, whether it was run negligently or not, and the verdict should be for the defendants.”

The giving of which is assigned for error. This instruction took from the jury all question of negligence, and only left to their consideration the fact whether or not he was in the employment of the railroad company.

In Chicago & Alton Railroad Co. v. Keefe, 47 Ill. 110, we said, “That the duties of an employee of a railway company may be so entirely distinct from all occupation upon its trains as to leave him at liberty to pursue the same legal remedies for injuries received while a passenger, may very probably be true. If, for example, a bookkeeper in a railway office should be injured, while traveling as a passenger, through the carelessness of the engineer, the reasons upon which the rule above referred to are founded, might well be held to have no application. But the employment of the person injured can not be considered distinct, in any sense, leading to this result, if of a character to make him a part of the force employed upon the train. If his duties attach him to the train as a part of its personal equipment, then his branch of service is not independent, in any such sense, as to exempt him from the general rule in regard to co-employees, in case he should be injured through the carelessness of the engineeer. * * *

* * * In the case before us, the plaintiff was a part of the working force of a construction train, and had been for some weeks passing with it to and fro, and, although his duties were distinct from those of the engineer, yet they were fellow-servants of the company, and both engaged in the same general duty, to wit: the operating a construction train, though each...