The Chicago v. Simon R. Clark.

• Decision Date: 31 May 1878
• Citation: 2 Ill.App. 596,2 Bradw. 596
• Court: United States Appellate Court of Illinois
• Parties: THE CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANYv.SIMON R. CLARK.

2 Ill.App. 596

2 Bradw. 596

THE CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY

v.SIMON R. CLARK.

Appellate Court of Illinois, Third District.

May Term, 1878.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Adams county; the Hon. JOSEPH SIBLEY, Judge, presiding.

Mr. O. H. BROWNING, for appellant; that the allegations and proofs must correspond, cited Blackburn v. Thompson, 15 East. 81; 1 Chitty's Pl. 375; Hullman v. Bennet, 5 Esp. 226; Ill. Cent. R. R. Co. v. Middlesworth, 43 Ill. 64; Tracy v. Rogers, 69 Ill. 662; Guest v. Reynolds, 68 Ill. 488; Ill. Cent. R. R. Co. v. McKee, 43 Ill. 119; Quincy Coal Co. v. Hood, 77 Ill. 68; Hacket v. Smelsby, 77 Ill. 109; C. C. & I. C. R. R. Co. v. Troesch, 68 Ill. 548; T. W. & W. R. R. Co. v. Jones, 76 Ill. 311; I. B. & W. R. R. Co. v. Rhodes, 76 Ill. 285.

To constitute a tort there must be actual or legal damage to the plaintiff, and a wrongful act or omission of the defendant: 1 Addison on Torts, 2; Harkins v. Standard Sugar Refinery, 122 Mass. 400.

The injury of which plaintiff complains must be the result of the negligence of the defendant; the proof shows it was caused by the wrongful act of the servants of another road: Lesher v. Wabash Nav. Co. 14 Ill. 85; Hinde v. Wabash Nav. Co. 15 Ill. 72; C. St. P. & F. DuLac R. R. Co. v. McCarthy, 20 Ill. 385; O. & M. R. R. Co. v. Dunbar, 20 Ill. 623; Ill. Cent. R. R. Co. v. Finnigan, 21 Ill. 648; C. & R. I. R. R. Co. v. Whipple, 22 Ill. 106; Ill. Cent. R. R. Co. v. Kanouse, 39 Ill. 272; T. P. & W. R. R. Co. v. Rumbold, 40 Ill. 143; Railroad Co. v. Barron, 5 Wall. 90.

It being shown that proper regulations had been adopted for the running of trains, the presumption was that the act was in violation of those rules and the company not liable: P. Ft. W. & C. R. R. Co. v. Powers, 74 Ill. 341.

A recovery cannot be had where the injury was caused by the negligence of a fellow servant: Wright v. N. Y. C. R. R. Co. 25 N. Y. 568; Rose v. Boston, etc. R. R. Co. 58 N. Y. 217; Ill. Cent. R. R. Co. v. Cox, 21 Ill. 20; C. & A. R. R. Co. v. Keefe, 47 Ill. 108; C. & A. R. R. Co. v. Murphy, 53 Ill. 339; C. B. & Q. R. R. Co. v. Gregory, 58 Ill. 272; C. C. & I. C. R. R. Co. v. Troesch, 68 Ill. 548; T. W. & W. R. R. Co. v. Moore, 77 Ill. 217; T. W. & W. R. R. Co. v. Durkin, 76 Ill. 398.

Plaintiff had knowledge of the manner of running trains over the leased track, and he cannot recover for an injury arising from a danger to which he voluntarily exposed himself: Woodley v. Metropolitan R'y Co. 2 Law Times Rep. 384; I. B. & W. R. R. Co. v. Flanigan, 77 Ill. 365; C. & N. W. R. R. Co. v. Ward, 61 Ill. 130; Gunderson v. Peterson, 65 Ill. 193; Harkins v. Standard Sugar Refinery, 122 Mass. 400.

Damages must be the natural result of the act done: 1 Chitty's Pl. 410; Sedgwick on Damages, 82; Clark v. Brown, 18 Wend. 229; 3 Parsons on Contracts, 178; T. W. & W. R. R. Co. v. Muthersbaugh, 71 Ill. 572; Bosch v. B. & M. R. R. Co. 44 Iowa, 402; Lowery v. W. U. Tel. Co. 60 N. Y. 198; Hoey v. Felton, 11 C. B. (N. S.) 142.

Messrs. WHEAT & BONNEY, for appellee; that the plaintiff was not a fellow servant with the employees of the leased road, and that defendant was liable, cited Swainson v. Northwestern R'y Co. 3 L. T. Rep. 102; Voss v. Lancanshire, etc. R'y Co. 27 L. J. 249; Warburton v. Great Western R'y Co. 15 L. T. Rep. (N. S.) 361; Valtez v. O. & M. R. R. Co. Sup. Ct. Ill. June T. 1877; C. & A. R. R. Co. v. Murphy, 53 Ill. 339; Smith v. N. Y. & H. R. R. Co. 19 N. Y. 127; Catawissa R. R. Co. v. Armstrong, 49 Pa. St. 186.

The company leasing the road will be liable: Lesher v. Wabash Nav. Co. 14 Ill. 85; Hinde v. Wabash Nav. Co. 15 Ill. 72; C. St. P. & F. DuLuc. R. R. Co. v. McCarthy, 20 Ill. 385; O. & M. R. R. Co. v. Dunbar, 20 Ill. 623; C. & R. I. R. R. Co. v. Whipple, 22 Ill. 106; Ill. Cent. R. R. Co. v. Finnigan, 21 Ill. 648; Ill. Cent. R. R. Co. v. Kanouse, 39 Ill. 272; T. P. & W. R. R. Co. v. Rumbold, 40 Ill. 143; P. & R. I. R. R. Co. v. Lane, Sup. Ct. Ill. 1877; Vt. & Canada R. R. Co. v. Nelson, 26 Vt. 717; Bemen v. Rufford, 6 Eng. L. & Eq. 106; Great Northern R'y Co. v. Eastern C. R. R. Co. 12 Eng. L. & Eq. 225; Norwich v. B. & L. R. R. Co. 12 Eng. L. & Eq. 506.

DAVIS, J.

This action was brought by appellee to recover damages for injuries received by him in a collision of trains, on appellant's road, January 1, 1877.

Appellee recovered a judgment below for $3,900, to reverse which this appeal is taken.

Appellee was a locomotive engineer, in the service of appellant, and on the day of the accident was running an engine with a passenger train attached, over appellant's road, between Camp Point and Quincy. At the same time, a wild or extra freight train belonging to the Toledo, Wabash & Western Railway Co., was running over the same road, between Quincy and Camp Point, and about 9:50 P. M. the two trains collided, injuring appellee very seriously.

Appellant's road, between Camp Point and Quincy, had been used continually as one road, jointly by the two companies, since 1859, under a lease from the Chicago, Burlington & Quincy Railroad Company, and by the arrangement existing between the two roads, the time table of appellant governed all trains between Quincy and Camp Point, and it was made the duty of all conductors to run by such time table. The rules adopted for the government of trains running over that part of appellant's road between those points, were that conductors should await the arrival of an incoming train before another of the same class should go out; that inferior trains should wait for superior trains indefinitely; that a wild train had no business upon the road, except upon an order from the dispatcher of appellant's road, and that first-class trains had rights over all inferior trains.

The accident was not caused by any fault of the appellee, or of any of the employees of appellant in charge of the passenger train, but was solely the result of negligence on the part of Gage, the conductor of the wild train of the Wabash road. By the time table of the C. B. &. Q., the passenger train was entitled to the right of way, and was within a few minutes of being on time, and was due in Quincy at 9:45 P. M.; but was entitled to the right of way for twelve hours longer.

The wild train had run into Quincy from Camp Point about 7:30 P. M., and was to return the same evening, but it was made the duty of the conductor of that train by such time table, to await the arrival of the passenger train. Of this duty and of all the information imparted by the time table, one of which was in his possession, he was fully aware, but for some unexplained reason, instead of waiting for the arrival of the passenger train, he left Quincy a few minutes before it was due, and collided with it within five minutes after leaving.

Appellee entered the service of appellant as a locomotive engineer in 1859, and served as such until 1867, when he quit such service. From January, 1872, until September of the same year, he was in the employ of the Toledo, Wabash and Western Railway Company, and during that time ran over the road of the Chicago, Burlington and Quincy Company between Quincy and Camp Point, and was governed between those two places by the time table of appellant. He again entered the service of appellant in September, 1872, and knew when he did so that the Toledo, Wabash and Western Railway Company habitually ran its trains over the road of the C. B. & Q., and that it was governed by the time table of appellant whilst upon the road. Upon these facts, as shown by the record, it is clear that the relation which existed between the appellant and the Toledo, Wabash and Western Railway Company as to that part of appellant's road between Camp Point and Quincy, was that of lessor and lessee, and the C. B. & Q., as lessor, would...