The Chicago v. Lycurgus K. Avery.
| Decision Date | 30 November 1880 |
| Citation | 8 Ill.App. 133,8 Bradw. 133 |
| Parties | THE CHICAGO, BURLINGTON AND QUINCY RAILROAD COMPANYv.LYCURGUS K. AVERY. |
| Court | United States Appellate Court of Illinois |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of Adams county; the Hon. J. H. WILLIAMS, Judge, presiding. Opinion filed January 18, 1881.
MR. O. H. BROWNING, for appellant; argued that appellee could not recover if he had knowledge of the dangerous condition of the car, or if he had the opportunity and might have known it; and cited Belair v. R. R. Co. 43 Ia. 662; Railroad Co. v. Jewell, 46 Ill. 99; Pierce on Railroad Law, 297; Baker v. Alleghany R. R. Co. 13 Chicago Legal News, 44.
Knowing that it was a common thing for cars to come into the yard with broken followers he should have examined this, as he could have easily done: Railroad Co. v. Jones, 5 Otto 439; Pierce on Railroad Law, 272.
The accident is attributable as much to plaintiff's want of due care as to any other cause, and he cannot recover: I. B. & W. R. R. Co. v. Flanigan, 72 Ill. 365; C. & N. W. Ry. Co. v. Scates, 90 Ill. 586; T. W. & W. Ry. Co. v. Black, 88 Ill. 112.
The plaintiff by entering upon this employment assumed all the ordinary perils of the service in which he engaged: C. & N. W. R. R. Co. v. Ward, 61 Ill. 130; I. B. & W. R. R. Co. v. Flanigan, 77 Ill. 365; Clark v. C. B. & Q. R. R. Co. 92 Ill. 44; Dorsey v. Construction Co. 42 Wis. 583; Lovell v. Hovell, 1 L. R. C. P. Div. 161; Gibson v. R. R. Co. 63 N. Y. 449; T. W. & W. R. R. Co. v. Black, 88 Ill. 46.
Injury from the carelessness of those in the same line of employment with himself, is one of the perils which plaintiff assumed, and for which the employer is not liable: Farwell v. B. & W. R. R. Co. 4 Met. 49; Richardson v. Cooper, 88 Ill. 270; Clark v. C. B. & Q. R. R. Co. 92 Ill. 43; Beaulien v. Portland Co. 48 Me. 295; Searle v. Lindsay, 103 E. C. L. 426; Hodgkins v. R. R. Co. 119 Mass. 419.
As to what constitutes a common employment: C. & A. R. R. Co. v. Murphy, 53 Ill. 339; Valtez v. O. & M. Ry. Co. 85 Ill. 500.
The terms “slight” and “gross” should be expressed in every instruction which assumes to lay down the rule of comparative negligence: T. W. & W. R. R. Co. v. Grable, 88 Ill. 442; C. B. & Q. R. R. Co. v. Harwood, 90 Ill. 426; East St. Louis L. P. & P. Co. v. Hightower, 92 Ill. 139; Wabash R'y Co. v. Henks, 91 Ill. 408.
Messrs. WHEAT & MARCY, for appellee; contending that the plaintiff had a right to presume that the duties of inspection and repair, as to the car, had been performed, and to handle it as sound when presented to him as such, cited C. & N. W. R. R. Co. v. Swett, 45 Ill. 197; Ill. Cent. R. R. Co. v. Welch, 52 Ill. 183; C. & A. R. R. Co. v. Pondrom, 51 Ill. 333; C. & A. R. R. Co. v. Wilson, 63 Ill. 167; St. L. & T. H. R. R. Co. v. Dunn, 78 Ill. 197; Goodfellow v. R. R. Co. 106 Mass. 462; Ford v. F. R. R. Co. 110 Mass. 260; Porter v. H. R. R. Co. 60 Mo. 162.
He was not bound to guard against remote possibilities of danger, in the absence of any notice of present peril: Snow v. Housatonic R. R. Co. 8 Allen 441; C. & N. W. R. R. Co. v. Jackson, 55 Ill. 492; Dorsey v. Phillips Co. 42 Wis. 583; C. & I. R. R. Co. v. Russell, 91 Ill. 302; Wedgwood v. Chicago, etc. R. R. Co. 41 Wis. 478; C. B. & Q. R. R. Co. v. Gregory, 58 Ill. 272; C. & N. W. R. R. Co. v. Taylor, 69 Ill. 461; Ill. Cent. R. R. Co. v. Welch, 52 Ill. 183; Cooms v. N. B. Co. 102 Mass. 572; Spanny v. Mill Co. 62 Me. 420; T. W. & W. R. R. Co. v. Fredericks, 71 Ill. 299; Fairbank v. Haentsche, 73 Ill. 236.
Plaintiff proceeded in the ordinary manner used in such cases, and this was ordinary diligence: C. B. & Q. R. R. Co. v. Gregory, 58 Ill. 272; C. & I. R. R. Co. v. Russell, 91 Ill. 303; Snow v. H. R. R. Co. 8 Allen, 448.
Peril occasioned by the employer in respect to supplying safe instrumentalities, is not one of the ordinary risks, assumed by the employe: Hough v. T. P. R. R. Co. 9 Reporter 194; Cayzer v. Taylor, 10 Gray, 282; C. B. & Q. R. R. Co. v. Gregory, 58 Ill. 226; C. & N. W. R. R. Co. v. Swett, 45 Ill. 197; Ford v. F. R. R. R. Co. 110 Mass. 260.
The employer is bound to use diligence in providing and maintaining safe machinery to be used by his employes: C. & N. W. R. R. Co. v. Swett, 45 Ill. 197; C. & A. R. R. Co. v. Shannon, 43 Ill. 338; C. & N. W. R. R. Co. v. Jackson, 55 Ill. 492; C. B. & Q. R. R. Co. v. Gregory, 58 Ill. 272; T. P. & W. R. R. Co. v. Conroy, 61 Ill. 162.
Negligence in this particular, in any agent or servant, is the negligence of the company itself: C. & N. W. R. R. Co. v. Swett, 45 Ill. 197; Ford v. F. R. R. R. Co. 110 Mass. 260; C. & N. W. R. R. Co. v. Taylor, 69 Ill. 461; Perry v. Ricketts, 55 Ill. 234; C. & N. W. R. R. Co. v. Jackson, 55 Ill. 492; St. L. & T. H. R. R. Co. v. Dunn, 78 Ill. 197; C. B. & Q. R. R. Co. v. Gregory, 58 Ill. 272.
The defendant was liable for the negligence of other companies running cars over its tracks: O. & M. R. R. Co. v. Dunbar, 20 Ill. 623; C. & St. P. R. R. Co. v. McCarthy, 20 Ill. 385; C. & R. I. R. R. Co. v. Whipple, 22 Ill. 105; Ill. Cent. R. R. Co. v. Finnigan, 21 Ill. 648; T. R. R. Co. v. Rumbold, 40 Ill. 144; R. R. I. & St. L. R. R. Co. v. Heflin, 65 Ill. 366, E. St. L. R. R. Co. v. Gerber, 82 Ill. 632; R. R. Co. v. Barron, 5 Wall. 104; Y. & N. L. R. R. Co. v. Winans, 17 How. 39; Nelson v. Vt. & C. R. R. Co. 26 Vt. 721; McElroy v. N. R. R. Co. 8 Cush. 400.
Negligence of other yard hands to caution plaintiff is no defense: C. & A. R. R. Co. v. Shannon, 43 Ill. 338; T. W. & W. Ry. Co. v. Fredericks, 71 Ill. 294.
As to common employment: C. & N. W. R. R. Co. v. Moranda, 93 Ill. 309; Stoddard v. St. L., etc., R. R. Co. 65 Mo. 520.
The unreasonable length of time this damaged car was continuously run, charges the defendant with notice: T. P. & W. R. R. Co. v. Conroy, 61 Ill. 162; C. & I. R. R. Co. v. Russell, 91 Ill. 301.
Failure to use ordinary care in supplying safe instrumentalities, is gross negligence: C. B. & Q. R. R. Co. v. Gregory, 58 Ill. 272; T. W. & W. R. R. Co. v. Fredericks, 71 Ill. 294; C. & D. R. R. Co. v. Russell, 91 Ill. 303; Fairbank v. Haentsche, 73 Ill. 236.
As to damages being excessive: N. L. Packet Co. v. Bininger, 70 Ill. 571; Ill. Cent. R. R. Co. v. Simmons, 38 Ill. 242; C. & A. R. R. Co. v. Wilson, 63 Ill. 167 ; Campbell v. Portland Co. 62 Me. 553; T. W. & W. R. R. Co. v. Fredericks, 71 Ill. 294; Ill. Cent. R. R. Co. v. Parks, 88 Ill. 373; Shaw v. B. & W. R. R. Co. 8 Gray, 81; Collins v. Council Bluffs, 32 Ia. 593; Blair v. C. & N. W. R. R. Co. 43 Ia. 662; Murray v. Hudson R. R. Co. 47 Barb. 96; Walker v. Erie R. R. Co. 63 Barb. 260; Rockwell v. T. A. R. R. Co. 64 Barb. 438; Campbell v. Portland Co. 62 Me. 553.
This was an action on the case brought by appellee to recover damages for an injury sustained by him while in the employment of appellant. The cause of action as set out in the declaration, is that appellee was a servant and employe of appellant in its railroad yard at Quincy, and that as such, it was his duty to couple and uncouple cars; that appellant permitted a certain car to come into its yard, and of its carelessness and negligence permitted said car to be used and operated on its railroad with the appliances for coupling and uncoupling so broken and insecure as to be greatly and unnecessarily dangerous to any employe who should have to couple or uncouple the same; that while appellee, in the course of his duty, was endeavoring to uncouple said car, without any fault or negligence of his, his right thumb was caught and crushed by and between the dead wood and coupling pin of the car, whereby his thumb was permanently injured and stiffened and rendered permanently useless. It appears that appellant is possessed of a railroad yard at Quincy into which by arrangement with appellant the trains of several roads run; that appellee had for a year next preceding the accident complained of, been foreman of the night work in that yard; that all the switching was done by the engines and emyloyes of appellant; that the train in which this particular car was at that time, was a train of the Keokuk and St. Louis Railroad; that it had for several days been out of order on account of the follower of the draw-bar being broken, and that in consequence thereof the coupling-pin came into contact with the dead-wood. While appellee was endeavoring to uncouple this car his thumb was caught and crushed between the pin and the dead-wood causing permanent injury. A trial was had before a jury who awarded appellee damages in the sum of $10,000, but one-half the verdict being remitted judgment was rendered for $5,000.
Appellant seeks to reverse this judgment on several grounds, namely: that appellee was guilty of such contributory negligence as to preclude a recovery; that he was injured by one of the ordinary perils of the service in which he was engaged; that he received his injury by reason of the negligence of his fellow servant in the same line of employment with himself; that the negligence leading to the accident was that of the Keokuk and St. Louis Railroad Company, for which appellant was not answerable; that the court erred in giving and refusing instructions, and because the damages are excessive.
As the case must go to another jury, we do not deem it advisable to discuss at length the question as to how far the allegations of the declaration are sustained by the proof, or how successfully such proof has been met by that of defendant below. To say nothing of appellant's liability for the negligent acts of another company in the occupancy or use of its road, or of its liability for the negligence of appellee's fellow servants, it seems plain to us that, no matter whose duty it was to keep the car in repair or to prevent its coming into appellant's yard in a damaged and dangerous condition, if these duties were neglected, and the car permitted to come into appellant's yard for so many consecutive days that appellant, in the...
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