The Chicago v. Russell
| Decision Date | 30 September 1878 |
| Citation | 33 Am.Rep. 54,91 Ill. 298,1878 WL 10266 |
| Parties | THE CHICAGO AND IOWA RAILROAD COMPANYv.WILLIAM H. H. RUSSELL, Admr. etc. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of Kane county; the Hon. H. H. CODY, Judge, presiding.
Messrs. KRETZINGER, VEEDER & KRETZINGER, for the appellant.
Mr. A. J. HOPKINS, and Mr. CHARLES WHEATON, for the appellee.
This suit was brought by William H. H. Russell, as administrator of the estate of James C. Russell, deceased, against the Chicago and Iowa Railroad Company, under the statute of this State, for causing death by wrongful act, neglect or default.
The circumstances of the case were as follows:
On the first day of June, 1875, James C. Russell commenced work for the railroad company in the capacity of brakeman on one of its freight trains running from Aurora to Forreston and return. On the second day of November, 1875, as the train upon which Russell was employed was on its return trip to Aurora, the station agent at Mount Morris, a station on the road, informed the conductor when the train reached that place that there were two cars on one of the side tracks to be attached to his train. At that place there are three tracks, viz: the main track, the passing track and a back or business track. These two cars which were to be attached to this train were on the back track. To take these cars with them the conductor and brakeman ran the train on the passing track, uncoupled the train, and, with engine, tender and one car, switched on the back track, coupled these and three other cars, and pulled out to switch back on the passing track. Russell had turned the switch when the engine, tender and car were backed down on this back track to take the cars there, and after assisting in coupling them, he climbed upon the first car back of the tender, but as the other brakeman was on top of one of the cars, Russell started to get down and turn the switch so as to throw the engine and cars back on the passing track and connect them to the main train. As he was climbing down the ladder of the car to throw the switch, he was struck by a standing telegraph pole, which was only eighteen inches from the car, and knocked between the cars on the track, run over and almost instantly killed. There was a verdict for the plaintiff, upon which judgment was entered, and the railroad company appealed.
Appellant claims that the evidence is not sufficient to support the verdict.
It is said there is a failure of proof that the telegraph pole was placed near the track by the railroad company, its agents or servants, or that the company had any knowledge or notice thereof.
It was not essential to the liability of the railroad company that it should itself have placed the telegraph pole where it was; it was sufficient that the company should have suffered it to be and remain in such dangerous proximity to the track.
It is true there is no direct evidence that the company had actual knowledge or notice of the position of the telegraph pole. There was the testimony of one witness that he had known of the telegraph pole being where it was since in March, 1875, and of another, a brakeman on the road, that he once came in contact with the same pole in 1872. From the length of time of the telegraph pole standing where it did, as shown by the evidence, the jury were warranted in finding that the company knew of it--that they ought to have known of it, and so might be considered as having notice of it. This court has often decided that notice of a defect or obstruction will be presumed after the lapse of a sufficient time. City of Springfield v. Doyle, 76 Ill. 202; City of Chicago v. Fowler, 60 Id. 322.
It is insisted further, that there was such negligence on the part of the deceased himself, as should prevent a recovery.
It appears that this back or business track was not used for passing trains, but that it was used for all working purposes, for cars to receive and deliver freight and for cars to stand on; that two warehouses, a coal shed, cattle shute, and some lumber stood on the outside of...
To continue reading
Request your trial
-
McIntyre v. St. Louis & San Francisco Railway Co.
... ... 291; Skelly v. Veerkamp, 30 ... Mo.App. 49; State ex rel. v. Collier, 62 Mo.App. 38; ... Williams v. Railway, 169 Mo.App. 468; Russell v ... Grant, 122 Mo. 161. (2) The court erred in giving ... Instruction 1 at the instance and on behalf of plaintiff. (a) ... This instruction ... ...
-
Potter v. Detroit, G.H. & M. Ry. Co.
...as he had not been but two months upon the road, and, except upon two trips, had always passed this station in the night. Railroad Co. v. Russell, 91 Ill. 299, to the effect that leaving for months a telegraph pole near the track is negligence. Yet the court say in that case that there is n......
-
Potter v. Detroit, G. H. & M. Ry. Co.
...Co. v. Welch, 52 Ill. 183;Johnson v. Railway Co., 43 Minn. 53, 44 N. W. 884;Railway Co. v. Oram, 49 Tex. 341; Railroad Co. v. Russell, 91 Ill. 298;Whipple v. Railroad Co. (R. L.) 35 Atl. 305;Scanlon v. Railroad Co., 147 Mass. 484, 18 N. E. 209;Sweet v. Railroad Co., 87 Mich. 559, 49 N. W. 8......
-
Hall v. Chicago & N. W. Ry. Co.
... ... In Chicago, Burlington & Quincy Railroad Co. v. Gregory, 58 Ill. 272, the ground of liability was that the mail catcher was negligently placed so near the track as to be a source of danger, when it might have been more distant. In Chicago & Iowa Railroad Co. v. Russell, 91 Ill. 298, the telegraph pole was permitted, by the negligence of the railroad company, to be in dangerous proximity to the track. So, also, in Chicago & Alton Railroad Co. v. Howell, 208 Ill. 155, 70 N.E. 15, the liability depended upon the negligence of the defendant both in respect to the ... ...