The Chicago v. Casey

• Decision Date: 31 October 1881
• Citation: 9 Ill.App. 632,9 Bradw. 632
• Parties: THE CHICAGO, BURLINGTON AND QUINCY RAILROAD COMPANYv.MARTIN CASEY, Adm'r.
• Court: United States Appellate Court of Illinois

9 Ill.App. 632

9 Bradw. 632

THE CHICAGO, BURLINGTON AND QUINCY RAILROAD COMPANY

v.MARTIN CASEY, Adm'r.

Appellate Court of Illinois, First District.

October Term, 1881.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Cook county; the Hon. JOHN G. ROGERS, Judge, presiding. Opinion filed January 26, 1882.

This was an action on the case, brought by Martin Casey, administrator of John Casey, deceased, against the Chicago, Burlington and Quincy Railroad Company, to recover damages for the death of said John Casey, caused, as is alleged, by the negligence of the defendant. The facts, as disclosed by the evidence, are as follows: On the 14th day of September, 1878, at about nine o'clock in the forenoon, the deceased, then a boy between twelve and thirteen years old, and two companions, James Scully, aged fourteen years, and Joseph McDonald, aged twelve years, started out together from their homes in the city of Chicago, on an expedition into the country in quest of apples and nuts. They walked along the defendant's railroad track from Chicago to Lawndale, a distance of five or six miles, then turned into Ogden avenue, leading to Riverside, and after walking some distance, gathering a few apples by the way, they were overtaken by a farmer, who gave them a ride to Riverside, twelve miles west of Chicago. After reaching that place, the boys, being weary, went to the defendant's passenger station, and sat down on the platform. As they reached the station, or just before, Casey suggested that they get a ride back to the city on one of defendant's trains; and during the time they were there, the matter was discussed between them at some length, the project being favored by Casey and McDonald, and opposed by Scully.

The passenger station stood on the south side of the track, and about sixty feet west of a street crossing the railroad at right angles. The platform extended from a point a little west of the station to the line of the street. In front of the building it was elevated about two feet above the level of the track, and thence running east, it gradually sloped down to the grade of the street. On the same side of the track, and immediately east of the street, was what was called a milk platform, used for loading cans of milk into the defendant's cars, it being similar to other structures on this and other lines of road used for the same purpose. It was built higher than the other platform, so as to be nearly or quite on a level with the floors of the cars, and stood about three and one-half feet from the track, thus leaving a space of only from eighteen to twenty inches between it and the sides of freight cars passing on the track.

The boys remained on or about the platform from fifteen minutes to half an hour, during which time one or more trains passed the station going west. At length a long freight train, consisting of from thirty-five to thirty-eight cars, known as the “Omaha freight,” arrived from the west and stopped to take water at a water-tank situated some sixty or seventy rods west of the station. It was thereupon proposed among the boys that they attempt to get a ride on this train. After taking water, the train started east, and was moving at a constantly increasing rate of speed, so that by the time it reached the station it was running, according to the various estimates of the witnesses, at from five to nine miles an hour. As the engine passed where the boys were standing, Scully called out to the engineer, who was on the right hand side of the engine looking out of the window, asking him whether he would give them a ride, and, as Scully and McDonald both testify, received from him an affirmative answer. The engineer, on the other hand, swears that his answer was in the negative. Casey thereupon ran down the slope of the platform and jumped on to a ladder on the outside of the fifth or sixth car from the engine.

McDonald, also, in the same manner jumped onto a car two or three car-lengths in the rear of Casey, but Scully did not attempt to get on. As the car on which Casey was attempting to ride passed the milk platform, he was hanging out from the car with his feet on the first or second step of the ladder. and was struck by the platform and thrown down on to the track and instantly killed. McDonald, though not seeing the accident to Casey, dropped from the train in obedience to a warning from Scully, and thus escaped injury.

It appears that the deceased was born, and had lived all his life in the city of Chicago; also that he had attended the public schools of the city for several years, and was a boy of ordinary intelligence. His father, the plaintiff, was, and for many years had been, a bridge-tender at one of the drawbridges over the Chicago river, and the deceased, for a considerable time before his death, assisted his father in tending the bridge, and after his death his father was compelled to pay an assistant twenty dollars per month, and board, for doing the same work.

It further appears that the train by which the deceased was killed was not an accommodation train, but was exclusively devoted to the transportation of freight. Also, that the defendant had adopted various rules for the government of its employes in the management of its trains, said rules being printed on the back of its time-cards issued, to its employes for their information. Of said rules, those material to this case are as follows:

“Rule 14. The conductor will have charge and control of the train, unless his orders shall conflict with these rules, or involve any danger, in which case all persons participating, will be held responsible.

Rule 27. Engineers will not allow any person to ride on their engines, except by permission of the general superintendent, or assistants, or general master mechanic, except conductors and forward brakemen of freight trains, while on duty.

Rule 43. Freight trains not run as accommodation trains, will take no passengers without special order from proper authority, and then only on regular tickets or passes.”

On the question of negligence in the construction of the milk platform, the court, at the instance of the defendant, instructed the jury as follows:

“The jury are instructed that the defendant was under no legal obligation to construct its platforms so that accidents would not happen by reason of their construction, to persons hanging on the sides of its moving cars; and if the jury believe, from the evidence, that at the time of the accident the deceased was hanging on the side of a moving car of the defendant, and that being in that position, and by reason thereof he was struck by the milk platform, then the jury are instructed that the defendant is not liable by reason of the fact, if it be a fact, that the milk platform was improperly constructed, and in dangerous proximity to the track of the defendant company.”

The jury by their verdict found the defendant guilty, and assessed the plaintiff's damages at $2,000, for which sum and costs the court, after overruling the defendant's motion for a new trial, gave judgment for the plaintiff.

Messrs. DEXTER, HERRICK & ALLEN, for appellant; that the company is not liable for the torts of its servant, outside of the course of his employment, cited Cooley on Torts, 535; Pierce on Railroads, 279; C. &. A. R. R. Co. v. Michie, 83 Ill. 427; Flower v. Pa. R. R. Co. 69 Pa. St. 210; Duff v. Allegheny R. R. Co. 91 Pa. St. 458; Snyder v. H. & St. J. R. R. Co. 60 Mo. 413; Sherman v. H. & St. J. R. R. Co. 72 Mo. 63; Hoar v. M. C. R. R. Co. 70 Me. 65; Eaton v. D. & L. & W. R. R. Co. 57 N. Y. 382; Towanda Coal Co. v. Heeman, 86 Pa. St. 418; Cauley v. P. C. & St. L. R. R. Co. 2 Am. & Eng. R. R. Cas. 4.

It was the duty of the court, under the admitted facts in this case, to instruct the jury to find for the defendant: Pierce on Railroads, 319; Poleman v. Johnson, 84 Ill. 269; Phillips v. Dickerson, 85 Ill. 11; Scates v. C. & N. W. R. R. Co. 90 Ill. 586.

The act of the deceased was a violation of a public statute, directly contributing to the injury: Rev. Stat. Chap. 114, § 17; Frye v. C. B. & Q. R. R. Co. 73 Ill. 399; Harris v. Hatfield, 71 Ill. 298; Heland v. City of Lowell, 3 Allen, 407.

Deceased was guilty of such contributory negligence as to bar a recovery: Reynolds v. N. Y. C. & H. R. R. R. Co. 58 N. Y. 248; Acthagen v. City of Watertown, 18 Wis. 331; Brown v. E. & N. A. R'y Co. 58 Me. 384; R. R. I. & St. L. R. R. Co. v. Delaney, 82 Ill. 198; St. Clair v. Berndt, 87 Ill. 174.

Messrs. LAWRENCE, CAMPBELL & LAWRENCE, and Mr. W. J. HYNES, for appellee; that if a servant commits a tort when not necessary for the performance of the service required of him, or makes a tortious use of his position, the master is liaable, cited T. W. & W. R. R. Co. v. Harmon, 47 Ill. 298; C. B. &. Q. R. R. Co. v. Parks, 18 Ill. 460; C. B. & Q. R. R. Co. v. Dickson, 63 Ill. 151; Higgins v. Watervleit Turnpike Co. 46 N. Y. 23.

Upon the effect of the permission to ride, given by the engineer to deceased: L. & B. R. R. Co. v. Chenewith, 52 Penn. 382; Powell v. Penn. R. R. Co. 32 Penn. 417; Wilton v. Middlesex R. R. Co. 107 Mass. 108; Ramsden v. Boston & Albany R. R. Co. 104 Mass. 117; P. Ft. W. & C. R. R. Co. v. Bumstead, 48 Ill. 221.

The doctrine that a trespasser is not entitled to protection, is not the law in Illinois: T. W. &. W. R. R. Co. v. Ferguson, 42 Ill. 449; T. P. &. W. R'y Co. v. Bray, 57 Ill. 517.

A person has the right to act upon the statement of any employe connected with the operation of a train: Ill. Cent. R. R. Co. v. Slatton, 54 Ill. 133; O. & M. R. R. Co. v. Stratton, 78 Ill. 88; C. B. & Q. R. R. Co. v. Sykes, 2 Am. & Eng. R. R. Cas.

The company is chargeable with negligence in respect to the milk platform. C. & N. W. R. R. Co. v. Jackson, 55 Ill. 492; C. & I. R. R. Co. v. Russel, 71 Ill. 298; 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. Middleworth, 46 Ill. 494; T. P. & W. R'y...