The Chicago v. Henry

• Decision Date: 30 June 1880
• Citation: 7 Bradw. 322,7 Ill.App. 322
• Parties: THE CHICAGO, ROCK ISLAND AND PACIFIC RAILROAD COMPANYv.FANNY M. HENRY, Adm'x, etc.
• Court: United States Appellate Court of Illinois

7 Ill.App. 322

7 Bradw. 322

THE CHICAGO, ROCK ISLAND AND PACIFIC RAILROAD COMPANY

v.FANNY M. HENRY, Adm'x, etc.

Appellate Court of Illinois, Second District.

June Term, 1880.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Rock Island county; the Hon. ARTHUR A. SMITH, Judge, presiding. Opinion filed December 4, 1880.

This action was commenced in the Circuit Court of Rock Island county by the appellee, Fanny M. Henry, as the administratrix of her deceased husband, Franklin P. Henry, to recover from the appellant damages for the alleged negligent killing of her said husband.

The intestate was in the employ of the appellant as a switchtender and brakeman, in its yards at Rock Island, and it appaers that it was one of his duties to couple cars in making up trains, and attend to the switches when cars were being distributed to the different tracks in the yard.

On the evening of the 24th day of May, 1879, a freight train came into the yard from the west, and was there delivered to the yard-men for the purpose of having the cars distributed upon the various tracks, where the outgoing trains in which the cars were to be placed were to be made up. Among the cars in this train was one flat, loaded with sixteen pairs of carwheels, and this car was taken by the yard engine and switched upon a track upon which was standing a loaded grain car, for the purpose of having it coupled to the grain car. The deceased went down the track to the grain car and awaited the coming of the flat, intending to make the coupling, but when the car of wheels struck the grain car, and while deceased was between them, the first pair of wheels were thrown from the car and falling upon Henry, killed him.

The grounds upon which a right of recovery is based, as alleged in the declaration, are that the servants of the company, whose duty it was to load the car wheels, and with whom deceased had no connection, did not in such loading use proper care to prevent the wheels from falling off the car when the car should be subjected to the ordinary jerking and collisions incident to freight cars in transportation and in making couplings with other cars.

The theory of the defense in the trial below was, that the engineer in charge of the switch-engine, as it is called, was careless in sending the car of wheels down the track with unnecessary velocity, and the “bumping” of the cars caused thereby was so great as to throw the wheels off, although properly loaded, and that the engineer, being the fellow-servant of the deceased, engaged in the same line of employment, and his death being caused by the negligence of such fellow-servant, the appellee cannot recover.

The respective parties introduced evidence to the jury tending to establish their respective theories of the case. The court permitted the appellee to prove, over the objection of the appellant, that at the time of the death of her husband she and her children depended entirely upon the labor of the husband and father for their support, and that she had no other means of support.

The jury returned a verdict of $4,000 for the plaintiff, upon which the court, after overruling a motion for a new trial, entered judgment, and the defendant appealed.

Mr. CHARLES M. OSBORN, for appellant; that the burden is upon the plaintiff to show that the accident occurred through defendant's negligence, cited Ill. Cent. R. R. Co. v. Houck, 72 Ill. 285; Camp Point. Mfg. Co. v. Ballou, 71 Ill. 417.

There can be no recovery for a negligence not averred in the declaration: C. W. D. Ry. Co. v. Hughes, 69 Ill. 170.

Evidence of...