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

• Decision Date: 30 September 1870
• Court: Illinois Supreme Court
• Parties: THE CHICAGO & NORTHWESTERN RAILWAY COMPANYv.FRANK JACKSON.

55 Ill. 492

1870 WL 6458 (Ill.)

8 Am.Rep. 661

THE CHICAGO & NORTHWESTERN RAILWAY COMPANY

v.FRANK JACKSON.

Supreme Court of Illinois.

September Term, 1870.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Kane county; the Hon. SILVANUS WILCOX, Judge, presiding.

The opinion states the case.

Mr. A. M. HERRINGTON, for the appellants.

Messrs. BLANCHARD & SILVER and Messrs. JOSLYN & SLAVIN, for the appellee.

Mr. JUSTICE WALKER delivered the opinion of the Court:

This was an action on the case, brought by appellee, in the Kane circuit court, against appellants, to recover for injuries received by falling from a car, and having his legs so badly injured or crushed by the engine passing over them, that they had to be amputated. It appears that on Monday morning, the eighteenth day of November, 1867, appellee, who was employed by the company as a brakeman, while engaged in the discharge of his duty, and being on the end of a freight car, holding to an iron rod, in obeying an order from his superior, in attempting to descend from the car for the purpose of uncoupling it from the engine, swung himself around so as to descend by a ladder on the side of the car, but owing to the fact that it was out of repair, lacking two rounds, that were missing, he failed to get a hold for his feet, and the weight of his body broke his hold of the iron rod, when he fell to the ground, and the engine, which was backing at the time, passed over his legs and crushed and injured them so that amputation became necessary.

The jury found a verdict in his favor, and assessed the damages at $18,000. A motion for a new trial was entered by defendants, but was overruled by the court, and judgment rendered on the verdict. An appeal was perfected, and the case is brought to this court and errors are assigned on the record. They question the correctness of the decision of the court in giving instructions for plaintiff, and in the refusal to give others for the defendants, the admission of evidence, and in overruling the motion for a new trial.

It is first insisted that there was a variance between the declaration and the proof; that in the declaration it is averred that the injury occurred while appellee was acting as a brakeman on a freight train of appellants, while the proof shows that he was acting as a brakeman in switching cars at the station, in making up a freight train. There is no dispute but the three or four cars being switched were freight cars, and were being propelled by an engine, and were what is generally understood to be a freight train. It was a train of freight cars, and therefore a freight train. It was a train used for the transportation of freight, as contradistinguished from a train composed of cars usually employed in transporting passengers, and called a passenger train. In this we perceive no variance, and the evidence was properly admitted for the consideration of the jury.

It is next urged that appellee was guilty of negligence in not seeing and knowing the ladder was defective, and in attempting to descend, in not placing his feet upon the two lower rounds of the ladder.

This was a question fairly falling within the province of a jury to determine. But when it is remembered that he occupied a subordinate, although a highly responsible place, requiring vigilance, with prompt action, it is not to be expected or required that he should act with that deliberation and circumspection as persons having more time and less pressed to prompt action in the performance of their duty. In the discharge of his duties on a switch he must keep a constant watch for the signal from his superior, which, to him, is a peremptory order, requiring instant obedience. This being so, we could not expect him to deliberately examine a ladder to see whether it was in repair. He, no doubt, seated himself so as to be in position, when ordered, to swing himself around on the ladder and descend in the shortest space of time possible, to uncouple the train from the engine, and, keeping a constant look for the signal, he probably did not see the ladder, but knowing it was there, felt sure that he could use it in the discharge of his duty, and hence did not observe the defect.

It is again urged that it was the duty of appellee to see and know the condition of these steps, and the case of the Illinois Central R. R. Co. v. Jewell, 46 Ill. 99, is referred...