The Chicago & Nw. Ry. Co. v. Bliss

• Decision Date: 30 June 1880
• Citation: 6 Bradw. 411,6 Ill.App. 411
• Court: United States Appellate Court of Illinois
• Parties: THE CHICAGO & NORTHWESTERN RAILWAY COMPANYv.JANE BLISS, Adm'x, etc.

6 Ill.App. 411

6 Bradw. 411

THE CHICAGO & NORTHWESTERN RAILWAY COMPANY

v.JANE BLISS, Adm'x, etc.

Appellate Court of Illinois, Second District.

June Term, 1880.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Whiteside county; the Hon. JOHN V. EUSTACE, Judge, presiding. Opinion filed June 17, 1880.

Mr. B. C. COOK, for appellant; that if the accident happened to deceased through the conduct of his fellow trackmen with him, no recovery can be had, cited T. W. & W. R'y Co. v. Durkin, 76 Ill. 395; Noble v. Cunningham, 74 Ill. 51; Gartland v. T. W. & W. R'y Co. 67 Ill. 498; C. C. & I. C. R. R. Co. v. Troesch, 68 Ill. 548.

There was lack of ordinary care on the part of the deceased and those with him in avoiding the danger, and there can be no recovery: C. & A. R. R. Co. v. Jacobs, 63 Ill. 178; T. W. & W. R. R. Co. v. Jones, 76 Ill. 311; Ill. Cent. R. R. Co. v. Hodgden, 85 Ill. 481; Burling, Adm'r, v. Ill. Cent. R. R. Co. 85 Ill. 18; Ill. Cent. R. R. Co. v. Hammer, 85 Ill. 527.

Instructions upon questions not in the case should not be given: Badger v. Batavia Mfg. Co., 70 Ill. 302; Ill. Cent. R. R. Co. v. Benton, 69 Ill. 174; American v. Rimpert, 75 Ill. 228; Ill. Cent. R. R. Co. v. Cragin, 71 Ill. 177.

Instructions must be based on the evidence: Andrews v. Ketchum, 77 Ill. 377; Straus v. Minzesheimer, 78 Ill. 402; American v. Rimpert, 75 Ill. 288; Russell v. Minteer, 83 Ill. 150; I. & St. L. R. R. Co. v. Miller, 71 Ill. 463.

As to the evidence of the speed with which the engine was running: G. R. & I. R. R. Co. v. Huntley, 7 Cent. Law Jour. 387; D. & M. R. R. Co. v. Van Steinberg, 17 Mich. 99.

The track repairer and engineer were fellow servants: C. & A. R. R. Co. v. Murphy, 53 Ill. 339; Honner v. Ill. Cent. R. R. Co. 15 Ill. 550; Farwell v. B. & W. R. R. Co. 4 Met. 49.

A servant engaging for any particular service, takes it with the hazards incident to it, and cannot recover for an injury occasioned thereby: Ill. Cent. R. R. Co. v. Cox, 21 Ill. 20; C. C. & I. C. R. R. Co. v. Troesch, 67 Ill. 548; Wright v. N. Y. Cent. Co. 25 N. Y. 562; Hayden v. Smithville Mfg. Co. 29 Conn. 548; Keegan v. Western R. R. Co. 4 Sel. 175; C. & A. R. R. Co. v. Keefe, 47 Ill. 108; Sherman v. Rochester & S. R. R. Co. 17 N. Y. 156; Lehigh Valley Coal Co. v. Jones, 18 Alb. Law Jour. 212; O. & M. R. R. Co. v. Collam, 8 Cent. Law Jour. 12; Lawlor v. Androscoggin R. R. Co. 62 Me. 463; Morgan v. Railway Co. 5 B. & S. 507; Wharton on Negligence, § 201; Strahlendorf v. Rosenthal, 30 Wis. 647; Riley v. Baxendale, 6 H. & N. 445; Woodley v. Railway Co. 2 Exch. 383; Gibson v. Railway Co. 63 N. Y. 449.

A master is not liable to his servant for injuries in consequence of the negligence of a fellow servant: McInery v. N. & K. Ry. Co. 8 Irish C. L. 318; Waller v. South Eastern R. R. Co. 2 Hurlst. & C. 102; Lovegrove v. London & Brighton R. R. Co. 16 C. B. (N. S.) 669; Hutchinson v. York & N. Ry. Co. 5 Exch. 343; Wigmore v. Jay, 14 Jur. 837; Priestly v. Fowler, 3 M. & W. 1.

It is not necessary that the servants should be engaged in the same kind of work, to make them fellow servants: Boldt v. N. Y. Cent. R. R. Co. 18 N. Y. 432; Slattery v. T. & W. R. R. Co. 23 Ind. 83; O. &. M. R. R. Co. v. Tindall, 13 Ind. 366; Wilson v. Madison R. R. Co. 18 Ind. 226; Foster v. Minn. Cen. R. R. Co. 14 Minn. 360; Coon v. Syracuse & Utica R. R. Co. 5 N. Y. 493; Priestly v. Fowler, 3 Mees. & W. 1; Murray v. S. C. R. R. Co. 1 McMullen--;Farwell v. B. & U. R. R. Co. 4 Met. 49; Brown v. Maxwell, 6 Hill, 594; Hayes v. Western R. R. Corp. 3 Cush. 270; Ponton v. R. R. Co. 6 Jones, 246; Morgan v. Vale of Heath R. R. Co. 5 Best & Smith, 570; Manville v. C. & S. R. R. Co. 11 Ohio St. 417; Whaalon v. Mad River, etc. R. R. Co. 8 Ohio St. 249; C. & I. C. R. R. Co. v. Arnold, 31 Ind. 174; Wonder v. B. & D. R. R. Co. 32 Md. 411; Gelshanon v. Stony Brook R. R. Co. 10 Cush. 228; Cotter v. Board of Education, 11 N. Y. 570; Hogan v. Cent. Pac. R. R. Co. 49 Cal. 129; Hurd v. Vt. & Can. R. R. Co. 32 Vt. 480; Valtez v. O. M. R'y Co. 85 Ill. 500; Colten v. Richards, 123 Mass. 486; Johnson v. City of Boston, 118 Mass. 114.

The verdict was the result of chance and should have been set aside: Ill. Cent, R. R. Co. v. Able, 59 Ill. 131; City of Pekin v. Winkel, 77 Ill. 56; Dunn v. Hall, 8 Blackf. 32; Dana v. Tucker. 4 J. R. 487; Harvey v. Rickett, 15 J. R. 87.

Messrs. MANAHAN & WARD, for appellees, argued that the negligence of the deceased was slight, and that of appellant gross, in comparison, and cited G. & C. U. R. R. Co. v. Jacobs, 20 Ill. 478; C. & R R. Co. v. Hogarth 38 Ill. 370; C. B. & Q. R. R. Co. v. Cauffmann, 38 Ill. 424; C. B. & Q. R. R. Co. V. Triplett, 38 Ill. 482; C. B. & Q. R. R. Co. v. Payne, 49 Ill. 499; C. & A. R. R. Co. v. Pondrom, 51 Ill. 333; C. B. & Q. R. R. Co. v. Gregory, 58 Ill. 272; I. & St. L. R. R. Co. v. Stables, 62 Ill. 313; T. W. & W. R. R. Co. v. Spencer, 66 Ill. 528; C. & A. R. R. Co. v. Elmore, 67 Ill. 176; T. W. & W. R'y. Co. v. McGinnis, 70 Ill. 346; T. W. & W. R'y Co. v. O'Connor, 77 Ill. 391; St. L. V. & T. H. R. R. Co. v. Dunn, 78 Ill. 197; I. & St. L. R. R. Co. v. Herndon, 81 Ill. 143.

The verdict of the jury will not be disturbed unless maniifestly against the weight of evidence: C. & N. W. R'y Co. v. Ryan, 70 Ill. 211; Corwith v. Colter, 82 Ill. 585; T. W. & W. R'y Co. v. Moore, 77 Ill. 217; Bishop v. Busse, 69 Ill. 403; H. F. & M. Ins. Co. v. Cornick, 24 Ill. 455; Bowden v. Bowden, 75 Ill. 143.

The court is not bound to repeat questions of law in different instructions: Holcomb v. The people, 79 Ill. 409; Ames v. Snider, 69 Ill. 376; Lycoming Fire Ins. Co. v. Jackson, 83 Ill. 302.

As to what is not a common employment: C. & A. R. R. Co. v. Shannon, 43 Ill. 838; C. & N. W. R. R. Co. v. Swett, 45 Ill. 197; C. B. & Q. R. R. Co. v. Gregory, 58 Ill. 272; Ill. Cent. R. R. Co. v. Welch, 52 Ill. 183; T. P. & W. R'y Co. v. Conroy, 61 Ill. 162; C. & N. W. R. R. Co. v. Taylor, 69 Ill. 461; P. F. W. & C. R. R. Co. v. Powers, 74 Ill. 341; T. W. & W. R'y Co. v. O'Connor, 77 Ill. 391; Ill. Cent. R. R. Co. v. Middlesworth, 46 Ill. 464; R. R. I. & St. L. R. R. Co. v. Lewis, 58 Ill. 49; T. W. & W. R'y Co. v. McGinnis, 71 Ill. 346.

An instruction as to willful injury is not erroneous, if there is evidence, though slight, to support it: Chicago v. Scholten, 75 Ill. 468.

Generally as to the right to recover: C. C. & C. R. R. Co. v. Keary, 3 Ohio St. 201; L. M. R. R. Co. v. Stevens, 20 Ohio, 415; Filike v. B. & A. R. R. Co. 53 N. Y. 549; Chamberlain v. M. & M. R'y Co. 11 Wis. 238; Haynes v. E. T. & G. R'y Co. 3 Coldwell, 222; Brickner v. N. Y. C. R. R. Co. 2 Lans. 506.

As to the objection to the verdict: City of Pekin v. Winkel, 77 Ill. 56; Martin v. Ehrenfels, 24 Ill. 187; Reins v. The People, 30 Ill. 256.

PLEASANTS, J.

This was an action by appellee, under the statute, for damages for the death of her intestate, who was her husband, alleged to have resulted from the negligence of appellant.

On the morning of the 16th of January, 1877, the deceased and three other trackmen in the employ of appellant, under the supervision of the section foreman, went with a hand-car from LaFox station, in Kane county, to a point about three miles east, for the purpose of replacing a broken rail. Upon their return, and when between forty and fifty rods from said station a locomotive engine was seen following them at a distance of two and a half miles--the morning being bright and clear and the line of the road between them straight.

Thereupon the foreman directed his men to take the handcar off the track, but yielded to their suggestion founded upon their common supposition that it was the Sterling freight that they could easily reach the switch at the station in advance of it. They were pushing the car up a heavy grade which continued all the way to the switch, and the snow on the rail also contributing to impede their progress the engine gained upon them rapidly. When about eighty rods off the foreman first discovered that it was only an engine propelling a snow-plow, and then peremptorily ordering the removal of the hand-car from the track, went back about sixty feet to flag it; but seeing no person upon it, by reason of the frost upon the window of the cab, and that its speed was not slackened in obedience to his signal, returned to assist his men, who were by that time about thirty feet east of the switch. When he again reached the hand-car it had been set off on the north side far enough to clear the engine, but as he thought, not enough by a few inches to clear the snow-plow, which projected twenty-three and one- third inches beyond the rail. So telling the men, he and Maloney took hold of the east end to move it further. The deceased and Bray were then standing at the west end, but instead of attempting to move it again, Bray ran up the bank, which was three or four feet high, hallooing to the men to clear, while deceased remained near the northwest corner of the hand-car in the ditch, and about six feet from the rail. The foreman and Maloney had moved the east end five or six inches, and were still working at it when the snow-plow passed them, and striking its southwest wheel, whirled the hand-car so violently that the handle struck deceased in the breast and killed him almost instantly.

In relation to the rate of speed at which the engine was then running, the testimony, as usual in such cases, differs widely. Witnesses called on the part of the plaintiff stated it variously from thirty to sixty miles per hour, while the engineer and the road-master, who were upon it, say from twenty to twenty-five. The latter states further, that it had a five-foot driving wheel, and was incapable of making more than forty. As to the time required for setting a hand-car off the track by four men, the estimates varied from half a minute when the conditions are favorable, to five minutes when hindered by such obstacles as intervened in this case,--all of which were matters of opinion, and...