The St. Louis Bolt v. Burke

• Decision Date: 28 February 1883
• Citation: 12 Ill.App. 369,12 Bradw. 369
• Parties: THE ST. LOUIS BOLT AND IRON COMPANYv.WILLIAM BURKE.
• Court: United States Appellate Court of Illinois

12 Ill.App. 369

12 Bradw. 369

THE ST. LOUIS BOLT AND IRON COMPANY

v.WILLIAM BURKE.

Appellate Court of Illinois, Fourth District.

February Term, 1883.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of St. Clair county; the Hon. WILLIAM H. SNYDER, Judge, presiding. Opinion filed April 13, 1883.

Mr. MARSHALL W. WEIR, for appellant; that one defendant can not be made liable for an injury occasioned by another unless they act in concert, cited Yeazel v. Alexander, 58 Ill. 254; C. & N. W. R. R. Co. v. Scates, 90 Ill. 586; Phillip v. Dickerson, 85 Ill. 11.

As to the burden of proof and the rule of comparative negligence: I. & St. L. R. R. Co. v. Evans, 88 Ill. 63; C. B. & Q. R. R. Co. v. Sykes, 96 Ill. 162; C. & N. W. R. R. Co. v. Bliss, 6 Bradwell, 411.

If one knowingly exposes himself to danger which can be readily avoided, and thereby sustains an injury, he must attribute it to his own negligence: City of Bloomington v. Read, 2 Bradwell, 542; Chicago & Tomah R. R. Co. v. Simmons, 11 Bradwell, 147.

A verdict manifestly against the weight of evidence will be reversed: Reynolds v. Lambert, 69 Ill. 495; I. C. R. R. Co. v. Chambers, 71 Ill. 519; Chicago v. Lavelle, 83 Ill. 482; Stanberry v. Moore, 56 Ill. 472; Q. A. & St. L. R. R. Co. v. Wellhoener, 72 Ill. 60.

Messrs. G. & G. A. KOERNER, for appellee.

CASEY, J.

Appellee brought suit against appellant and the St. Louis, Alton and Terre Haute Railroad Company in the Circuit Court of St. Clair county.

The declaration contains three counts. The first count charges that the defendants so carelessly, negligently and improperly managed and operated a locomotive and train of cars, the property of the railroad company and controlled by the defendants, that said train was driven against the person of plaintiff, who was then and there exercising due care and caution, by reason whereof he was injured, etc. The second count charges that the plaintiff was in the employ of appellant and on its premises; that the railroad company was the owner of the train of cars; that appellant negligently directed the railroad company to propel said train over the place where the plaintiff was at work, and the railroad company did so negligently propel the train without notice or signal to the plaintiff, by reason whereof, etc. The third count charges that the plaintiff was in the employ of appellant and was exercising due care; that the railroad company was the owner of the train of cars, which train was then on appellant's premises; that plaintiff was ordered by appellant to go under the train (no locomotive being then attached) and clean off the track on which the train was standing, and while so engaged appellant caused and negligently permitted without signal or warning to plaintiff, the railroad company to suddenly attach a locomotive to the cars and move the train, by reason whereof the plaintiff was injured, etc.

At the September term of the circuit court, 1881, the cause was tried by a jury and a verdict rendered finding the St. Louis, Alton and Terre Haute Railroad Company not guilty and assessing damages against appellant at the sum of $1,000. A motion for a new trial was interposed by appellant which was allowed by the court.

The cause was again submitted to a jury at the February term of said court, 1882, and appellant found guilty, and damages assessed at $1,750. A motion for a new trial was made and refused. Exceptions were taken, and the record is brought here by an appeal.

It is very clear that the evidence does not sustain the averments in the first and second counts in the declaration, and the only question for the determination of this court is, does it authorize a recovery on the third count?

It seems appellant's rolling mill was connected with the railway by a switch, used at least in part for furnishing coal to appellant. The switch was laid near to the furnace of the rolling mill, and at a point opposite the furnace it was considerably above the ground. Under the switch, or railroad, at that point, was a chute extending to the furnace. The chute was above the ground but two feet below the railroad and gradually descended to the ground at the furnace. The coal cars were pulled or pushed or backed over this chute and then dumped or unloaded, the coal falling into the chute on each side of the railway.

Appellee claimed that he was directed by the foreman of appellant to pass the coal down the chute to the furnace and clear the railway track; that in doing so he got up between the coal cars then standing on the track and while so situated an engine was attached, the cars moved and he was injured.

It is certainly not at all clear or satisfactory from the evidence that appellee was instructed to remove the coal or pass it down the chute. He alone testifies that he...