The Chicago v. Donahue

• Decision Date: 30 September 1874
• Citation: 75 Ill. 106,1874 WL 9198
• Parties: THE CHICAGO AND NORTH-WESTERN RAILWAY CO.v.FRANCIS DONAHUE.
• Court: Illinois Supreme Court

75 Ill. 106

1874 WL 9198 (Ill.)

THE CHICAGO AND NORTH-WESTERN RAILWAY CO.

v.FRANCIS DONAHUE.

Supreme Court of Illinois.

September Term, 1874.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Cook county; the Hon. JOHN G. ROGERS, Judge, presiding.

This was an action on the case, brought by Francis Donahue, by his next friend James Donahue, against the Chicago and North-Western Railway Company, to recover for a personal injury received while in the defendant's employ, on the ground of alleged negligence. The facts appear in the opinion. The jury found for the plaintiff and assessed his damages at $8,000. The plaintiff remitted $3,000 and the court, overruling motions for a new trial and in arrest of judgment, rendered judgment in favor of the plaintiff for $5,000 and costs of suit, to reverse which the defendant appealed.

Mr. B. C. COOK, for the appellant.

Messrs. MOORE & CAULFIELD, for the appellee.

Mr. JUSTICE SCOTT delivered the opinion of the Court:

Plaintiff was employed as a switchman in the yards of the company, at Chicago, and while in that service was struck by a moving car, by which he was seriously and permanently injured. One ground of liability set forth in the declaration, viz.: that the locomotive attached to the train was out of repair and not manageable, has not been insisted on in this court, the jury by a special verdict having found it was in good repair and ordinarily manageable. It is sought, however, to maintain the judgment on the other ground of negligence charged, that defendant neglected to provide rules whereby it would have been the duty of certain servants to keep a lookout from the car or locomotive to warn plaintiff of the approach of the engine and cars, and that it in fact kept no watch or lookout from the car in the direction in which the engine was moving. The accident occurred on private grounds of the company, where there are a number of tracks used for making up trains, and where trains are almost constantly moving in either direction. It was his duty to turn the switches, couple cars and give signals. Each engineer had his own switchman. When plaintiff was struck he was walking backwards and giving signals to his engineer. He had just stepped upon another track, when the rear car of a train which was being pushed from an opposite direction came upon him.

No principle of law is better settled than that a party must observe ordinary care for his personal safety in any employment, and if, for want of such care, he suffers an injury, no recovery can be had. The degree of care to be observed must always be in proportion to the hazards of the service in which he is engaged. Where plaintiff is guilty of negligence, to defeat a recovery it must nevertheless appear that defendant used all reasonable care to avoid the injury. The fact that a party has been guilty of negligence does not authorize another to inflict a willful injury, or to omit all reasonable precautions to avoid it.

Whether plaintiff, in this case, observed due care for his personal safety is one of the controverted facts. According to his own testimony, it was not necessary, in the performance of his duty, that he should step upon the track where he received the injury. There was room enough elsewhere. It is urged, in his behalf, his mind was so absorbed he did not notice he was stepping into danger. That is no valid excuse. He was in a place where danger was imminent, and it was his duty to keep a constant watch for his personal safety. It will avail him nothing that he was not thinking of danger. He was in a position that if he omitted any reasonable care for his security, it was at his peril. There was safe ground upon which he could stand, and he ought to have occupied it. On this branch of the case the court instructed, that if defendant was guilty of greater negligence than plaintiff, still a recovery might be had. This is not the law, and the instruction was highly calculated to mislead. The doctrine of the comparative negligence...