Simmons v. the Chicago

• Decision Date: 19 May 1884
• Citation: 1884 WL 9890,110 Ill. 340
• Parties: MARY ANN SIMMONS, Admx.v.THE CHICAGO AND TOMAH RAILROAD COMPANY.
• Court: Illinois Supreme Court

110 Ill. 340

1884 WL 9890 (Ill.)

MARY ANN SIMMONS, Admx.

v.THE CHICAGO AND TOMAH RAILROAD COMPANY.

Supreme Court of Illinois.

Filed at Ottawa May 19, 1884.

OPINION TEXT STARTS HERE

APPEAL from the Appellate Court for the Second District;--heard in that court on appeal from the Circuit Court of Jo Daviess county; the Hon. WILLIAM BROWN, Judge, presiding.

Mr. M. Y. JOHNSON, and Mr. JAMES S. BAUME, for the appellant:

There was evidence enough tending to support the plaintiff's case, to require that it should be submitted to the jury. The court below had no right to usurp the functions of the jury, and direct a verdict for the defendant.

The motion to exclude the plaintiff's evidence from the jury was a demurrer to the evidence, and the usual consequences follow. Fent v. Railroad Co. 59 Ill. 349; Phillips v. Dickerson, 85 Id. 11; Walters v. Ohio and Mississippi R. R. Co. Id. 500.

The facts appearing in this case do not bring it within the rule that the servant assumes all the risks, on entering the service, naturally incident thereto. That rule is to be understood as applicable only to such risks and hazards as are incident to the usual and ordinary mode of conducting the business in which the servant is employed. With that limitation the rule is correctly stated. 2 Am. and Eng. Railroad Cases, 104; Lalor v. Chicago, Burlington and Quincy R. R. Co. 52 Ill. 401; St. Louis R. R. Co. v. Valirious, 56 Ind. 511; Baxter v. Roberts, 44 Cal. 187.

Mr. B. C. COOK, for the appellee:

As to the propriety of excluding all the plaintiff's evidence from the jury, and directing a verdict for the defendant, the more reasonable rule is, that in every case, before the evidence is left to the jury, there is a preliminary question for the judge,--not whether there is literally no evidence, but whether there is any upon which a jury can properly proceed to find a verdict for the party producing it, upon whom the onus of proof is imposed. Pleasants v. Fant, 22 Wall. 120; Improvement Co. v. Munson, 14 Id. 448; Parks v. Ross, 11 How. 362; Bowditch v. Boston, 101 U. S. 318; Ryder v. Wombwell, Law Rep. 4 Ex. 32; Giblin v. McMullin, Law Rep. 2 P. C. 335; Jewell v. Pan, 16 C. B. 616; Toomey v. Railway Co. 3 C. B. (N. S.) 146.

This doctrine has been affirmed in the strongest manner by this court in the case of Phillips v. Dickerson, 85 Ill. 11, in which the court quote approvingly the case of Reed v. Derfed, 8 Allen, 524, as follows: “Where the whole evidence introduced by the plaintiff, if believed by the jury, is so insufficient to support a verdict that the court would not permit one to stand, it is the duty of the court to instruct the jury, as a matter of law, that there is not sufficient evidence to warrant a verdict for the plaintiff.” See, also, Gartside v. Outley, 58 Ill. 217; Martin v. Chambers, 84 Id. 579; Poleman v. Johnson, Id. 270; Railroad Co. v. Goodman, 62 Pa. 329; Bachelder v. Hengan, 18 Maine, 32; Tourtelott v. Rosebrook, 11 Metc. 460; Losee v. Buchanan, 51 N. Y. 476; McCully v. Clarke, 40 Pa. 399; Chicago v. Major, 18 Ill. 349; Hammock v. White 11 C. B. (N. S.) 588; Holmes v. Mather,L. R. 10 Ex. 261; Ellis v. Railway Co. L. R. 9 C. P. 551; Burdon v. Railroad Co. 4 Har. (Del.) 252.

Upon the principal question, as to the liability of the defendant, the rule is: If a servant, knowing the hazards of his employment, as the business is conducted, is injured while engaged therein, he can not maintain an action against the master merely on the ground that there was a safer mode for conducting the business, the adoption of which would have prevented the injury. Naylor v. Chicago and Northwestern Ry. Co. 53 Wis. 661; Ladd v. Railroad Co. 119 Mass. 412; Clark v. Railroad Co. (Minn.) 2 Am. and Eng. Ry. Cas. 240, and cases cited; Sullivan v. India Manf. Co. 113 Mass. 396; Stroblendorf v. Rosenthal, 30 Wis. 674; Morey v. Lower Vein Coal Co. 55 Iowa, 671; Way v. Illinois Central R. R. Co. 40 Id. 341; Muldowney v. Illinois Central R. R. Co. 39 Id. 615; Kroy v. Chicago, Rock Island and Pacific R. R. Co. 32 Id. 357; Greenleaf v. Illinois Central R. R. Co. 29 Id. 14; Pennsylvania Co. v. Lynch, 90 Ill. 334; Priestly v. Fow ler, 3 M. & W. 1; Assop v. Yates, 2 H. &. N. 768; Gibson v. Erie Ry. Co. 63 N. Y. 453; Lanning v. New York Central R. R. Co. 49 Id. 453; Camp Point Manf. Co. v. Ballou, Admr. 71 Ill. 418, and cases cited; Clark v. Chicago, Burlington and Quincy R. R. Co. 92 Id. 43; Railroad Co. v. Britz, 72 Id. 261, and cases cited; Michigan Central R. R. Co. v. Austin, 4 Mich. 247.

Mr. CHIEF JUSTICE SHELDON delivered the opinion of the Court:

This suit was brought to recover damages for the death of Edward C. Simmons, who was a laborer in the employ of the Chicago and Tomah Railroad Company, and was engaged, at the time of being killed, with others, in removing a bluff or hill in the city of Galena, for the purpose of preparing the foundation for a round-house, and for laying a side-track. There had been a former trial, resulting in a verdict and judgment in favor of the plaintiff, which judgment, on appeal to the Appellate Court for the Second District, was reversed. At a second trial before a jury, upon the close of the plaintiff's evidence, the court, on motion of the defendant, withdrew the plaintiff's evidence from the jury, and directed them to find for the defendant. The jury so found, and judgment was entered in favor of the defendant, which, on appeal to the Appellate Court, was affirmed, and plaintiff appealed to this court.

The declaration alleged as ground of action, in the first count, neglect of the alleged duty on the part of defendant to direct and cause the work about which the deceased was employed, to be done in a prudent and safe manner, and so as not to endanger the lives of the employes engaged in the doing of the work, by reason whereof a large mass of earth, forming part of a hill which was being dug down under defendant's direction, became detached, and fell upon and killed the decedent. The second count alleges negligence in the employment of competent persons to superintend and over-see the doing of the work.

The evidence showed the following facts: The deceased was twenty-eight years of age, an old miner in that neighborhood, accustomed to work in that kind of earth. The railroad company was engaged in excavating a hill to build a round-house. From thirty to fifty men were engaged in the work. They were in two gangs, of which Decker and Briggs were the respective foremen. The full length of the bank was between two hundred and three hundred feet. The bank was sixteen or twenty feet high at the west end, where the accident occurred. It was nearly perpendicular, and composed of clay, commonly called “joint clay.” The manner of doing the work was undermining the bank by digging under from two to three feet, and prying the bank off from the top by bars. That was not the proper and safe way to take down the bank. It should have been taken down from the top, or pillars should have been left to support the bank. Briggs and Decker were the men put in charge by the superintendent of the railroad, and directing how the work should be done. Each foreman had control of his own men, and for disobedience of orders could discharge them. When one foreman was absent, the other directed both gangs. Deceased was in Briggs' gang. Briggs, on the morning of the accident, went somewhere else, and left his men with Decker, and saying to them: “Boys, look out for yourselves to-day. I am going to work off here. Don't get covered up.” The superintendent of the road was at the bank two days before the accident, and he told the men that the way they were doing the work was dangerous; that somebody would get hurt; that they must not cave it off that way, and that they must not dig under that far. In the forenoon of the accident several of the men there were speaking of the bank getting dangerous. The deceased himself said he believed the bank was getting dangerous. One man left the place on account of it, and another on the same account avoided going there, and went to work somewhere else. The deceased was at work at the west end of the bank, shoveling out dirt from under the bank. The bank ran out to a point at the east end. The deceased was not directed to work at that particular spot where he was working--he chose it himself, and might have worked at any other place on the bank. The bank fell in the forenoon of November 24, 1880, some twenty or twenty-five feet of it, lengthwise, killing the deceased.

There may be decisions to be found which hold that if there is any evidence-- even a scintilla--tending to support the plaintiff's case, it must be submitted to the jury. But we think the more reasonable rule, which has now come to be established by the better authority, is, that when the evidence given at the trial, with all inferences that the jury could justifiably draw from it, is so insufficient to support a verdict for the plaintiff, that such a verdict, if returned, must be set aside, the court is not bound to submit the case to the jury, but may direct a verdict for the defendant. Pleasants v. Fant, 22 Wall. 120; Randall v. Baltimore and Ohio R. R. Co. 109 U. S. 478; Metropolitan Ry. Co. v. Jackson, 3 App. Cas. 193; Reed v. Inhabitants of Deerfield, 8 Allen, 524; Skellenger v. Chicago and Northwestern Ry. Co. 61 Iowa, 714; Martin v. Chambers, 84 Ill. 579; Phillips v. Dickerson, 85 Id. 11. In the recent case of Frazer v. Howe, 106 Ill. 573, this court recognized the rule to be: “If there is no evidence before the jury on a material issue in favor of a party holding the affirmative of that issue, on which the jury could, in the eye of the law, reasonably find in his favor, the court may exclude the evidence, or direct the jury to find against the party so holding the affirmative.”

There was no evidence whatever tending to support the second count of the declaration.

The alleged ground of action in the first count is negligence of the...