The Ohio v. Muhling

• Decision Date: 30 November 1861
• Citation: 20 Peck 9,1861 WL 4224,81 Am.Dec. 336,30 Ill. 9
• Parties: THE OHIO AND MISSISSIPPI RAILROAD COMPANY, Plaintiff in Error,v.FRANCIS MUHLING, Defendant in Error.a1
• Court: Illinois Supreme Court

30 Ill. 9
1861 WL 4224 (Ill.)
81 Am.Dec. 336
20 Peck (IL) 9

THE OHIO AND MISSISSIPPI RAILROAD COMPANY, Plaintiff in Error,
v.
FRANCIS MUHLING, Defendant in Error.a1

Supreme Court of Illinois.

November Term, 1861.

ERROR TO CLINTON.

The responsibility of a railroad company for the safety of its passengers, does not depend on the kind of cars in which they are carried, or on the fact of payment of fare by the passenger.

If the passenger is lawfully on the cars, the company is bound to carry him safely, whether he has paid his fare or not, but if he refuses to pay on demand, the company may eject him from the train.

THE defendant in error sued the Ohio and Mississippi Railroad Company, in the Circuit Court of Clinton county, for injuries received on one of the trains of that company.

The first count of the declaration avers, that plaintiff was a work-hand in the employ of the defendant, on the 29th of June, 1854, and was, as such work-hand, on the cars of defendant, to be safely carried from Shoal Creek station, in Clinton county, to a point at or near Carlyle prairie, in said

[30 Ill. 10]

county. Plaintiff avers, that the trestle bridging across Shoal creek, in said county, was built in so unworkman-like, insufficient and unsubstantial a manner, that, under the weight of the passing cars, the bridge gave way and fell while the plaintiff was on board said cars, and said cars were precipitated to the ground below, whereby plaintiff was grievously injured in body and put to great expense for cure, and disabled for work for a long space of time.

The second count avers, that plaintiff was a passenger on the cars of defendant at the date aforesaid, to be securely carried on a certain journey, to wit, from said Shoal Creek station to the end of the track of the railroad at or near Carlyle prairie, in said connty. Plaintiff, as in first count, avers defective bridging or trestle work, the breaking down of the work under the burden of the cars, and the consequent injury to plaintiff.

The third count avers, that plaintiff was a passenger received by defendant, to be carried safely from said Shoal Creek station, in Clinton county, to a point east of Beaver creek, in said county. Plaintiff, as in previous counts, avers defective bridging and consequent injury, while proceeding from said Shoal Creek station to the end of the track of said railroad, in Carlyle prairie. Plaintiff says he sustained damages in the sum of $25,000.

The case came finally to trial at June term, 1858, of said court, and verdict and judgment for plaintiff in the sum of $1,500.

On the trial, Halthouse, for plaintiff, testified, that he came to the place of the accident, about an hour after it occurred; trestle work down, and four or five platform cars loaded with iron down off the track; found a man's hand among the bars of iron; saw a man in the cars covered up, that he took to be plaintiff.

William Young testified, that he was on the train at the time of the disaster, 28th June, 1854. Did not see plaintiff on the train; was on the tender when the accident occurred, and jumped off and ran back; saw a man with his hand cut off; five cars off; nineteen men on the train, pretty much

[30 Ill. 11]

men that belonged to the road--all such, as far as witness knew. At that time the passenger cars ran east from Illinoistown as far as Trenton. From Trenton, construction cars ran east to the end of the road. Witness was then in the employ of defendant as carpenter. The company took passengers at that time on construction train for pay. The trestle work was not substantially made; it was insecurely constructed. That train put off a reaper at Shoal Creek. Passengers frequently passed back and forwards. I went to Levi Edmunds immediately to send a messenger for the main train. In crossing the trestle work, the engine slacked speed and ran four or five miles per hour at a safe rate and cautiously. Iron was delivered by the cars east of the trestle work the day before. The track was finished one-quarter of a mile east of the trestle work. Witness, and several hands, were on their way to finish the trestle work at Carlyle.

B. Rouse said he lived near Shoal Creek station; plaintiff boarded with him at the time of the accident. Plaintiff was helping the engineer when they were surveying the road. Plaintiff had quit work for the company two weeks before the accident because they would not pay him. Plaintiff had to go to Trenton, and the cars would not stop as they came back at Shoal Creek, so he got on as the train went east. They stopped at Shoal Creek as the train went east and put off a machine, and plaintiff jumped on because the cars would not stop when returning west. Witness loaned him money to pay his passage. People had to pay if they went even on a hog car. Witness before paid his passage and freight to Sugar Creek, and they left him at McDonald's shanty. Two or three months afterward, plaintiff paid back the ten dollars loaned. Plaintiff went for witness to get flour at Trenton or Summerfield. He gave him ten dollars to pay for flour, passage and freight. The grist-mill at Trenton was not then finished. Plaintiff knew at the time that the train would not stop for passengers on its return. When he paid him the ten dollars, he told him to pay for the flour with it; that he was to get it at Trenton, Summerfield or Lebanon.

F. Wintig said, that at the time of the accident he went to

[30 Ill. 12]

Shoal Creek. When he got there the cars had started; saw plaintiff on the train, and first after he was hurt. His hand was cut off near the wrist. On Sunday, three or four days before he was hurt, he told me at my house that he was working for Brown on the road.

Garvin testified, that after the track was completed to Carlyle prairie, they brought passengers there who got to Carlyle by hacks.

Dr. Knapp said, he was called to see plaintiff after the injury. He sustained no other injury except losing his hand.

This was all the evidence given for plaintiff.

Defendant then called Levi Edmunds, who said the accident happened about June 29, 1854. Was at the scene of the disaster; saw Miles, the conductor, and plaintiff, in the same box car; both hurt. I got there half an hour after the accident. The first train that passed over the trestle work was the day before; it took over a shanty and some iron rails. The second train must have passed over when the trestle work fell down. Saw plaintiff drive pegs on the road for Brown, two days before the accident. There were no regular trains beyond McDonald's shanty, which was eight or nine miles west of the trestle work. The hands at work on the road were taken on the construction trains free.

Miles testified that he was conductor on the train...