The Chicago v. Dignan

• Decision Date: 30 September 1870
• Citation: 1870 WL 6567,56 Ill. 487
• Parties: THE CHICAGO, ROCK ISLAND AND PACIFIC RAILROAD COMPANYv.MICHAEL DIGNAN.
• Court: Illinois Supreme Court

56 Ill. 487

1870 WL 6567 (Ill.)

THE CHICAGO, ROCK ISLAND AND PACIFIC RAILROAD COMPANY

v.MICHAEL DIGNAN.

Supreme Court of Illinois.

September Term, 1870.

APPEAL from the Superior Court of Chicago; the Hon. WM. A. PORTER, Judge, presiding. The opinion states the case.

Mr. GEORGE C. CAMPBELL, for the appellants.

Mr. TOM STUART DICKSON and Messrs. HERVEY, ANTHONY & GALT, for the appellee.

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

This was an action brought by Michael Dignan against the Chicago, Rock Island and Pacific R. R. Co., to recover damages for injuries received by the plaintiff from being run over by a train of cars belonging to said company. It appears the defendants and the Michigan Southern Railway Co. use the same grounds in the city of Chicago, the main tracks of the respective companies being between six and seven feet apart. At and near the place where the injury occurred numerous side tracks are connected with the main tracks by switches. The plaintiff was a track repairer, in the employ of the Michigan Southern Company, and in October, 1869, was engaged, with two other men, in replacing a rail on the track of this company. While thus engaged, they were interrupted by a long train of freight cars passing over the track. The train was backing slowly and they did not discover it until nearly upon them, when their attention was arrested by the shouting of the brakeman on the rear car, and they hastily jumped backwards to the end of the ties on the track of the defendants. While standing there, waiting for the train to pass, the plaintiff and one of his fellow-laborers were struck by two freight cars belonging to the defendants. The plaintiff fell in such a manner that he was passed over by the cars and his arm was crushed, and he was otherwise severely injured. His companion, who was also struck, so fell that he was not seriously injured. The third laborer was not touched. These two cars were moving northwardly, in the same direction with the train on the other track. They, with several other cars, had just before been taken from a side track to the main track, over a switch south of where these men were standing, and then had been backed up the main track. When the train had acquired sufficient momentum, the two rear cars were uncoupled and continued on their course from the motion already acquired, while the locomotive with the other cars moved off in the opposite direction. These two cars, thus left quietly to move along the track by their own momentum, without any person upon them to check their motion or to give an alarm, were the cars which struck the plaintiff.

It is not objected that the damages are excessive. Objection is taken to the modification by the court of defendants' instructions, but this modification was in accordance with the well settled principles so frequently announced by this court in regard to comparative negligence. There is no error in the record unless in the refusal of the court to set aside the verdict as not sustained by the evidence, and we have very carefully examined the testimony, which is a little obscure, but the application of which to the diagram contained in the record we think we understand, and have, with some hesitation, concluded that the judgment must be affirmed.

We have no doubt as to the negligence of the defendants. Every person who has had frequent occasion to visit the grounds of a railway company where freight trains are made up, must have observed how noiselessly one or two empty freight cars will move along the track after having been uncoupled from the locomotive or from the main body of the train, and what a distance they will pass over by their own momentum. That it is negligence to set a car or a couple of cars in motion, and, after giving them a momentum that will carry them onward at the rate of three or four miles an hour, to disconnect them from all controlling power, and allow them to move along where workmen are engaged, with their attention absorbed by their employment, and where persons are constantly passing to and fro, with no one on the cars to apply a brake or sound an alarm,--that this, we say, is negligence, is a proposition which can not well be denied. The sense of hearing alone will give warning of the approach of an ordinary train, but one of these cars, thus set in motion, gives to the ear no token of its approach, and it is undoubtedly true that many a life has been destroyed, and many a limb crushed, by agencies substantially like those disclosed by this record. The plaintiff offered in evidence various rules of the company, one of which expressly forbids what are called “flying switches.” The mode of switching adopted in the present case, it appears by the evidence, was not what is technically called a “flying switch,” but it seems to us to possess substantially the same elements of danger. In this case, as in the flying switch, cars are left to pursue their own way along the rail, with no person to control or check their course or to give warning of their approach, and with a speed which, though slow, is the more noiseless for being slow, and is still sufficient to prostrate whatever person the cars may strike.

But the counsel for appellants, in his argument, relies chiefly on the alleged negligence of the plaintiff as a ground for reversal, and we certainly have not found the...