The Lake Shore v. Roy

• Decision Date: 31 October 1879
• Citation: 5 Ill.App. 82,5 Bradw. 82
• Parties: THE LAKE SHORE AND MICHIGAN SOUTHERN RAILWAY COMPANYv.JOHN H. ROY.
• Court: United States Appellate Court of Illinois

5 Ill.App. 82

5 Bradw. 82

THE LAKE SHORE AND MICHIGAN SOUTHERN RAILWAY COMPANY

v.JOHN H. ROY.

Appellate Court of Illinois, First District.

October Term, 1879.

OPINION TEXT STARTS HERE

APPEAL from the Superior Court of Cook county; the Hon. JOSEPH E. GARY, Judge, presiding. Opinion filed January 7, 1880.

Mr. C. D. ROYS, for appellant; that plaintiff having knowledge of the defect in the lantern and afterwards continuing its use, he will be presumed to have assumed the risk, cited Jackson v. Owners of Hayland Silkstone Colliery, Eng. High Ch. Justice 1879; C. & N. W. R. R. Co. v. Donahue, 75 Ill. 106; St. L. & S. E. Ry. Co. v. Britz, 72 Ill. 256; C. & A. R. R. Co. v. Munroe, 85 Ill. 25; I. B. & W. R. R. Co. v. Flanigan, 77 Ill. 365; C. B. & Q. R. R. Co. v. Clark, 2 Bradwell, 596; Ill. Cent. R. R. Co. v. Jewell, 46 Ill. 99.

The master is only bound to provide machinery that is suitable and adequate: Wood's Master and Servant, § 332; C. C. & I. C. R. R. Co. v. Troesch, 68 Ill. 548; M. R. & L. E. R. R. Co. v?? Barber, 5 Ohio, St. 541; Wharton on Negligence, § 213.

Where the master has furnished safe appliances for the use of his workmen, and the servant refuses or neglects to use them, the master is not responsible for the consequences: M. C. R. R. Co. v. Coleman, 28 Mich. 440; Griffin v. Giddies, 3 H. & N. 648; W. & P. Ry. Co. v. McElwer, 67 Pa. St. 311; C. & N. W. R. R. Co. v. Donahue, 75 Ill. 106; Western & Atlantic Ry. Co. v. Bishop, 50 Ga. 106; C. & N. W. R. R. Co. v. Sweeny, 52 Ill. 325; C. B. & Q. R. R. Co. v. Van Patten, 64 Ill. 510.

Plaintiff is estopped by the recitals in the agreement or contract of employment which he signed: Bigelow on Estoppel, 511; Wynkoop v. Cowing, 21 Ill. 570; Baker v. Pratt, 15 Ill. 568; Arnott v. Friel, 50 Ill. 174; Byrne v. Morehouse, 22 Ill. 608.

The contract became evidence by stipulation of counsel, and no ruling of the court could operate to impair it as evidence: Bingham v. Board of Super's, 6 Minn. 136; Fusslet v. Overdeer, 3 W. & S. 470; Clason v. Shepherd, 10 Wis. 299; Coultas v. Green, 43 Ill. 277.

Relevancy of evidence or whether there be any legal evidence, is a question for the court: L. S. & M. S. R. R. Co. v. Miller, 25 Mich. 274; Pleasant v. Fant, 22 Wall. 116.

Granting an instruction supersedes the ancient practice of demurrer to the evidence, and should be tested by the same rules: Improvement Co. v. Munson, 14 Wall. 448; Parks v. Ross, 11 How. 362; Schuchart v. Allens, 1 Wall. 359; L. S. & M. S. R. R. Co. v. Miller, 25 Mich. 274; Artz v. C. R. I. & P. R. R. Co. 34 Iowa, 153; R. R. Co. v. Houston, 5 Otto, 697; Wilson v. Hudson R. R. R. Co. 24 N. Y. 430; Amos v. Sinnott, 4 Scam. 440; Tefft v. Asbaugh, 13 Ill. 602; Poleman v. Johnson, 84 Ill. 269.

The plaintiff failed to make out a case, and the instruction to that effect should have been given: G. T. R. R. Co. v. Nichol, 18 Mich. 170; Davis v. Detroit & Mil. R. R. Co. 20 Mich. 105; Bevans v. United States, 13 Wall. 56; Ins. Co. v. Baring, 20 Wall. 159; Greenhaf v. Birth, 9 Pet. 292; Hendrick v. Lindsay, 3 Otto. 143.

Messrs. HITCHCOCK, DUPEE & JUDAH, for appellee; that it is the duty of the railroad company to furnish its employes with safe materials, cited C. & N. W. R. R. Co. v. Swett, 45 Ill. 197; C. & N. W. R. R. Co. v. Jackson, 55 Ill. 492; T. W. & W. R. R. Co. v. Fredericks, 71 Ill. 294.

When a master has expressly promised to repair a defect, the servant can recover for an injury caused by use of the defective machinery or appliance, if happening within such a period after the promise as would be reasonable to allow for its performance: Sherman and Redfield on Negligence, § 96; 2 Hilliard on Torts, 466; Holmes v. Clark, 6 H. & N. 349; Greenleaf v. D. &. S. C. R. R. Co. 33 Iowa, 52; King v. C. R. I. & P. R. R. Co. 32 Iowa, 357; Snow v. H. R. R. Co. 8 Allen, 441; Wharton on Negligence, § 220; C. P. M. Co. v. Ballou, 71 Ill. 417; Richardson v. Cooper, 88 Ill. 274.

As to estoppel: The People v. Brown, 67 Ill. 435.

WILSON, J.

This was an action on the case, brought by John H. Roy against the Lake Shore & Michigan Southern Railway Company, to recover damages for personal injuries suffered by him while in the employ of the company as night switchman at the company's yards at Chicago. Roy, while attempting to get on to the front foot-board of a locomotive engine, fell upon the track, and his right hand was cut off by the wheels passing over it. A verdict was rendered in the court below in his favor, for $7,500, of which the plaintiff remitted $2,500. Motion by the defendant for a new trial was overruled, and judgment was rendered upon the verdict less the remittitur, from which judgment this appeal is taken.

The grounds upon which the plaintiff below based his right to recover were, first, that the accident happened by reason of the neglect of the company to furnish him with a suitable lantern; and, secondly, because the company had improperly placed the foot-board of the engine at an unusual height from the ground, causing Roy to stumble and fall as he was attempting to step on it. The counsel for the railway company insists that the company is not chargeable with negligence in either of the respects mentioned, but that the injury resulted wholly from gross carelessness on the part of appellee, in attempting to get on to the front foot-board while the engine was in motion.

The declaration contains three counts, alleging that the plaintiff was in the employ of the railway company as night switchman, engaged in coupling and uncoupling cars and engines, throwing switches, making up trains, etc. The first count avers that the defendant did not use due care and diligence in the construction and repair of its engines, lanterns, and other apparatus, but so negligently, unskillfully and improperly constructed and maintained one of its engines and one of its lanterns, that plaintiff was thereby thrown under the engine and had his right hand cut off.

The second count alleges an unsafe condition of the engine, and that the steps thereof were so improperly constructed, and maintained, of which the plaintiff was ignorant, that the plaintiff while engaged in coupling and uncoupling the engine and cars, was thrown and fell upon the sleeper and track of the railroad, and thereby received the injury complained of.

The third count alleges that it was the duty of the defendant to keep its lanterns in good and safe repair, yet the defendant kept the lantern used by plaintiff in such bad and unsafe condition, that on the night of the accident the plaintiff, while engaged in coupling and uncoupling the defendant's cars and engine, notwithstanding the plaintiff had frequently before and at the time of the accident, objected and protested to the defendant against the unsafe condition of the lantern, yet being compelled, under the orders of the defendant to use the same, the plaintiff, by reason of the extinguishment of the light thereof, was unable to see, and was thereby thrown upon the track, and received the injury complained of.

Some criticisms are made upon the declaration by the counsel for the railway company, which, in the view we take of the case, it is not necessary to consider.

We will consider very briefly, first, whether the engine was improperly constructed; secondly, to what extent, if any, did the alleged imperfection in the lantern contribute to the accident; and thirdly, the want of care on the part of the plaintiff.

As to the engine, no proof was offered to show its general bad construction or want of repair. The only objection to it is that the front foot-board was too high; that it was higher than the average and as appellee claims, higher than any other of the company's engines. It is sufficient to say that, according to the testimony of appellee's witnesses, the height of foot-boards in switching engines varies from six to sixteen inches. The evidence shows that there was no uniformity in the height of foot-boards, such as is seen in the steps of streetcars, or the width of tracks. This diversity of height was well known to appellee, from the experience which the evidence discloses he had had in this branch of the railway service, or which he had ample means of knowing. He knew that some were high and others low. He had, therefore, no right to rely upon an average height of foot-boards. It was thus immaterial what the average height may have been. The company was under no obligation to construct its engines with foot-boards of an uniform height; nor was it required to give notice of every change of height, and especially was there no such obligation as between the company and an employe whose daily observation had taught him there was no uniformity in that respect. We think therefore there is no ground for claiming that the railway is chargeable with negligence in the construction of the engine, or in the height of its foot-board.

As to the alleged negligence of the company in not furnishing appellee with a suitable lantern, it may be observed, first, that appellee used the lantern with full knowledge of its defects, and the general rule is well settled that when a servant enters on an employment, from its nature necessarily hazardous, he accepts the service subject to the risks incidental to it; or if he thinks proper to accept an employment on machinery defective in its construction or the want of proper repair, and with knowledge of the facts...