The Pa. Co. v. Hankey

• Decision Date: 30 September 1879
• Parties: THE PENNSYLVANIA COMPANYv.GEORGE HANKEY.
• Court: Illinois Supreme Court

93 Ill. 580

1879 WL 8650 (Ill.)

THE PENNSYLVANIA COMPANY

v.GEORGE HANKEY.

Supreme Court of Illinois.

September Term, 1879.

APPEAL from the Circuit Court of Cook county; the Hon. JOHN G. ROGERS, Judge, presiding.

Messrs. F. H. & F. S. WINSTON, and Mr. GEORGE WILLARD, for the appellant.

Messrs. BARGE, DENSLOW & DIXON, and Mr. H. L. SLAYTON, for the appellee.

Mr. JUSTICE DICKEY delivered the opinion of the Court:

This is an action brought by Hankey, appellee, against the Pennsylvania Company, appellant, to recover damages for an injury suffered by him, and alleged to have been caused by the negligence of appellant. That corporation was operating the Pittsburg, Ft. Wayne and Chicago Railroad. Appellee was in the service of appellant as a brakeman on freight trains. At the time of the disaster appellee, as such brakeman, was preparing to couple an engine and tender to a train of empty cars then standing on a side track at or near Englewood. This side track consisted of ties and rails laid upon a graded or level bed, but without ballast,--the spaces between the ties not being filled with earth or gravel, and being about six inches deep. The engine and tender were backing on this side track, and plaintiff, while the same were in motion, tried to change the link at the rear of the tender. In making this attempt one of his feet was caught between one of the ties and the brake-beam at the rear of the tender, and he was thereby cast down in such position that the wheels of the tender passed over both his feet and so crushed them that it became necessary to amputate both his legs below the knees.

A trial by jury was had, resulting in a verdict for the plaintiff and the assessment of his damages at the sum of $10,000. A motion for a new trial was refused and judgment was rendered upon the verdict. This is an appeal from that judgment.

Appellant insists that there is no evidence of wrong on the part of its management,--that plaintiff was guilty of negligence and that the injury was the result of his own folly.

The only fault attributed to appellant consists in the failure to have this side track ballasted, and this upon the ground that (as it is insisted) ballasting was essential to the safety of its employees. It is urged that the spaces between the ties should be filled with earth so as to make a comparatively smooth track for them to walk upon in the discharge of their duties. This side track was built and used solely as a place for temporarily storing cars not in use. It was about two miles long, and lay west of and but a short distance from the main tracks and nearly parallel to them, and was connected with the more westerly of these main tracks by a switch at the south end of the side track. The main tracks were well ballasted and smooth, and so was that part of the south end of the side track which was at the switch and near to it; but north of that there was no ballasting, and the spaces between the ties of the side track were wider apart than those of the main tracks, being irregular and from two feet to three feet wide. This disaster occurred some fifty to eighty feet north of the switch--probably about seventy feet--and at that point the track was without ballast. At that time the engine and tender were backing northward slowly, moving not more than three miles an hour.

The party of employees, of whom Hankey was one, consisted of a conductor, engineman, fireman and two brakemen. They came from Chicago for the purpose of taking a train of empty cars from this side track with an engine, tender and caboose--the conductor and brakemen riding in the caboose. Traveling south on the more westerly of the main tracks they passed the train of empty cars on the side track, and on approaching the switch the caboose was cut off and left on the main track about one hundred feet north of this switch. The engineman, the fireman and Woodworth (one of the brakemen) went on with the engine and tender, while the conductor and plaintiff got...