The Chicago v. Lycurgus K. Avery.

• Decision Date: 26 March 1884
• Parties: THE CHICAGO, BURLINGTON AND QUINCY RAILROAD COMPANYv.LYCURGUS K. AVERY.
• Court: Illinois Supreme Court

109 Ill. 314

1884 WL 9793 (Ill.)

THE CHICAGO, BURLINGTON AND QUINCY RAILROAD COMPANY

v.LYCURGUS K. AVERY.

Supreme Court of Illinois.

Filed at Springfield Mar. 26, 1884.

OPINION TEXT STARTS HERE

APPEAL from the Appellate Court for the Third District;--heard in that court on appeal from the Circuit Court of Adams county; the Hon. JOHN H. WILLIAMS, Judge, presiding.

Mr. J. F. CARROTT, for the appellant:

That a servant can not recover of his master where his own want of care contributed to the injury, or where by the exercise of ordinary care and prudence he might have avoided it, may now be regarded as a rule of law completely established. Illinois Central R. R. Co. v. Patterson, 69 Ill. 650; Toledo, Wabash and Western Ry. Co. v. Asbury, 84 Id. 430; Toledo, Wabash and Western Ry. Co. v. Black, 88 Id. 112; Austin v. Chicago, Rock Island and Pacific R. R. Co. 91 Id. 35; Pennsylvania Co. v. Hankey, 93 Id. 570; Ballou v. Chicago and Northwestern R. R. Co. 54 Wis. 257; Michigan Central R. R. Co. v. Smithson, 45 Mich. 212; Wabash v. St. P. and D. R. R. Co. 27 Minn. 369.

An employee, by entering the service, takes the risk of its ordinary hazards and dangers, whether from the carelessness of co-employees, or the ordinary dangers in the use of machinery and appliances used in the business. Lovell v. Howell, 1 C. P. Div. L. R. 161; Woodley v. M. D. Ry. Co. 2 Ex. Div. L. R. 384; Chicago and Northwestern R. R. Co. v. Ward, 61 Ill. 130; Toledo, Wabash and Western Ry. Co. v. Black, 88 Id. 112; Richardson v. Cooper, Id. 270; Clark v. Chicago, Burlington and Quincy R. R. Co. 92 Id. 46; Smith v. Potter, 46 Mich. 258; Flannagan v. Chicago and Northwestern R. R. Co. 50 Wis. 462; Kelley v. Chicago, Milwaukee and St. Paul R. R. Co. 53 Id. 74.

Injury from coupling and uncoupling cars is a risk incident to the employment of a switchman and night foreman in a railroad yard. Lyon v. D. L. and L. M. R. R. Co. 31 Mich. 429; Michigan Central R. R. Co. v. Austin, 40 Id. 249; Day v. T. C. S. and D. Ry. Co. 42 Id. 523; Chicago and Northwestern R. R. Co. v. Ward, 61 Ill. 130; Toledo, Wabash and Western Ry. Co. v. Black, 88 Id. 112.

One servant can not maintain an action against the common master for an injury caused by the carelessness or negligence of another engaged in the same service. Pierce on Railroads, (2d ed.) 359; Illinois Central R. R. Co. v. Cox, 21 Ill. 23; Chicago and Alton R. R. Co. v. Murphy, 53 Id. 336; St. Louis and Southeastern Ry. Co. v. Britz, 72 Id. 256; Toledo, Wabash and Western Ry. Co. v. Durkin, 76 Id. 395; Valtez v. Ohio and Mississippi Ry. Co. 85 Id. 500; Richardson v. Cooper, 88 Id. 270; Clark v. Chicago, Burlington and Quincy R. R. Co. 92 Id. 43; Indianapolis and St. Louis R. R. Co. v. Morganstern, 106 Id. 216.

Where a servant who is injured, either through the carelessness or incompetency of a fellow-servant, or through any defective machinery furnished, had the same knowledge or means of knowledge as the master, he can not maintain an action for such injury, but will be held to have assumed such risks. Skipp v. E. Co. R. R. Co. 9 Exch. 211; Williams v. Clough, 3 H. & N. 258; Dynen v. Leach, 40 Eng. L. & Eq. 491; Hughes v. W. St. P. R. R. Co. 27 Minn. 147; Walsh v. St. P. and D. R. R. Co. Id. 369; Clark v. St. P. and S. C. R. R. Co. 28 Id. 128; Hayden v. Sm. Manf. Co. 29 Conn. 559; Baylor v. D. L. and W. R. R. Co. 40 N. J. L. 23; Perigo v. Chicago, Rock Island and Pacific R. R. Co. 52 Iowa, 276; Chicago and Northwestern R. R. Co. v. Donahue, 75 Ill. 106; Pierce on Railroads, (2d ed.) p. 379, and cases cited.

Messrs. WHEAT & MARCY, for the appellee:

Avery had the right to rely upon it that the duties of inspection and repair as to this car had been performed, and to handle it as sound when presented to him as such. Chicago and Northwestern R. R. Co. v. Swett, 45 Ill. 203; Illinois Central R. R. Co. v. Welch, 52 Id. 183; Chicago and Alton R. R. Co. v. Pondrom, 51 Id. 338; Chicago and Alton R. R. Co. v. Wilson, 63 Id. 172; St. Louis, Vandalia and Terre Haute R. R. Co. v. Dunn, 78 Id. 202; Goodfellow v. Railroad Co. 106 Mass. 462; Ford v. F. R. R. Co. 110 Id. 260; Porter v. H. R. R. Co. 60 Mo. 162; Sleeper v. Sandown, 52 N. H. 252. He was not bound to look for dents in the dead-wood, or to make inspection. Even if, under the circumstances, he had forgotten or overlooked, for the moment, a known or visible peril, it would not have been negligence. Snow v. Housatonic R. R. Co. 8 Allen, 441; Chicago and Northwestern R. R. Co. v. Jackson, 55 Ill. 492; Dorsey v. Phillips Co. 42 Wis. 583; Chicago and Iowa R. R. Co. v. Russell, 91 Ill. 302; Wedgewood v. Chicago R. R. Co. 41 Wis. 478; Chicago, Burlington and Quincy R. R. Co. v. Gregory, 58 Ill. 286; Chicago and Northwestern R. R. Co. v. Taylor, 69 Id. 462; Illinois Central R. R. Co. v. Welch, 52 Id. 186; Cooms v. N. B. Co. 102 Mass. 572; Spanny v. Mill Co. 62 Maine, 420; Toledo, Wabash and Western Ry. Co. v. Fredericks, 71 Id. 296; Fairbank v. Haentzche, 73 Id. 236.

Peril occasioned by negligence of defendant, in respect of supplying safe instrumentalities, is not one of the “ordinary risks” assumed by the employee. Hough v. T. P. R. R. Co. 100 U. S. 213; Cayzer v. Taylor, 10 Gray, 282; Gregory's case, 58 Ill. 284; Swett's case, 45 Id. 201; Ford's case, 110 Mass. 260; Flanigan's case, 77 Ill. 371; Abend's case, 107 Id. 50.

The employer is bound to use due diligence in providing and maintaining safe machinery to be handled by its employees. Swett's case, 45 Ill. 201; Shannon's case, 43 Id. 345; Jackson's case, 55 Id. 496; Thompson's case, 56 Id. 141; Conroy's case, 78 Id. 560; Estes' case, 96 Id. 472.

The diligence required in this regard, both as to passengers and employees, is the highest consistent with the operation of the road. Chicago and Alton R. R. Co. v. Shannon, 43 Ill. 345; Toledo, Peoria and Warsaw R. R. Co. v. Conroy, 61 Id. 163; Chicago and Alton R. R. Co. v. Platt, 89 Id. 143.

The defendant was bound to adopt and enforce proper rules and regulations for the safety of its employees in respect to all cars allowed to run upon its line or in its yards. Chicago, Burlington and Quincy R. R. Co. v. George, 19 Ill. 517; Chicago and Northwestern R. R. Co. v. Taylor, 69 Id. 465; Chicago, Burlington and Quincy R. R. Co. v. McLallen, 84 Id. 114. And the burden of proof as to this is on the defendant. Pittsburg and Ft. Wayne R. R. Co. v. Powers, 74 Ill. 344.

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

This was an action on the case, brought by Lycurgus K. Avery, against the Chicago, Burlington and Quincy Railroad Company, to recover damages for an injury sustained by plaintiff when attempting to uncouple a car belonging to the Keokuk, St. Louis and Northwestern Railroad Company, then in the railroad yard of defendant, at Quincy. The declaration charges that plaintiff was an employee of defendant in its railroad yard at Quincy, and that, as such, it was his duty to couple and uncouple cars; that defendant permitted a certain car, known as “way car No. 3,” to come into its railroad yard, and of its negligence permitted the car to be used and operated on its railroad with the appliances for coupling and uncoupling so broken as to be dangerous to one having occasion to couple or uncouple the car; that on the evening of December 16, 1879, while plaintiff was attempting to uncouple the car, his right thumb was caught and crushed by and between the dead-wood and coupling-pin of the car; that the injury was caused by the follower of the draw-bar, by which cars are coupled, being so broken that the draw-bar pushed back under the car, so as to bring the coupling-pin in contact with the dead-wood of the car. Plaintiff recovered, and on appeal to the Appellate Court for the Third District the judgment was affirmed, and defendant appeals to this court.

It appears that this way car No. 3 belonged to the Keokuk, St. Louis and Northwestern Railroad Company, and was used by its employees engaged in running the train, but at the time of the accident it was being handled by defendant's employees. All the different railroads coming into Quincy, some six in number besides defendant's, run their engines and trains into this railroad yard, and while there are moved and handled by defendant's employees. Each of the different companies attends to and keeps in repair its own rolling stock, engines, cars, etc., and the cars, engines, etc., of other companies are not under the control of defendant, and it does not make repairs for other companies unless requested to do so, each company doing its own repairing. Plaintiff had been engaged in railroad business eighteen years or more, as brakeman, switchman and conductor, and had worked for defendant, as switchman and night foreman in this railroad yard at Quincy, for five years in succession next prior to December 16, 1879, the time of the accident. His duties were to couple and uncouple cars, switch trains that came into, and make up trains that went out of, the yard. He had five switchmen, and the engineer and fireman, under his control. This train of the Keokuk, St. Louis and Northwestern Railroad Company had been running in and out of the yard a year and a half or two years, and this way car a month and a half or two months. The train ran from Quincy to Hannibal and return. The follower of this way car was broken in the railroad yard at Hannibal, Mo., on the 11th or 12th of December, 1879, and came into and ran out of the yard at Quincy every day, in this broken condition, until plaintiff was hurt.

As respects the facts of the case, the finding of the Appellate Court upon them is conclusive on us, and we have only to do with questions of law. All such that are presented here respect the instructions to the jury.

The circuit court gave to the jury the following instructions on the part of plaintiff:

“1. If the jury believe from the evidence, that way car No. 3, mentioned in the testimony in this case, was the property of a company...