The St. Louis v. James Montgomery.

• Decision Date: 31 January 1866
• Citation: 39 Ill. 335,1866 WL 4400
• Parties: THE ST. LOUIS, ALTON AND TERRE HAUTE RAILROAD COMPANY,v.JAMES MONTGOMERY.
• Court: Illinois Supreme Court

39 Ill. 335

1866 WL 4400 (Ill.)

THE ST. LOUIS, ALTON AND TERRE HAUTE RAILROAD COMPANY,

v.JAMES MONTGOMERY.

Supreme Court of Illinois.

January Term, 1866.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Madison county; the Hon. JOSEPH GILLESPIE, Judge, presiding.

The facts in this case are stated in the opinion.

Mr. LEVI DAVIS, for the appellant.

Messrs. BILLINGS & GILLESPIE, for the appellee.

Mr. JUSTICE LAWRENCE delivered the opinion of the Court:

This was an action upon the case brought by the appellee against the appellant to recover the value of a quantity of hay burned upon the cars of the appellant. It appears from the evidence that the hay was placed on the platform cars on Friday, and on Saturday morning the conductor of the freight train was about to take it away, when the plaintiff said he did not wish it to go until he could see Mr. Ketchum, to whom he had sold it. In consequence of his request the cars were left, and the next day the hay was ignited by sparks thrown from the locomotive of a passing passenger train, and a considerable portion was consumed. The plaintiff recovered a verdict on the trial, and the defendant appealed.

There is nothing in the record showing carelessness on the part of the appellant, except the single fact of leaving the hay standing upon the side track exposed to the sparks of a passing train, and this carelessness and exposure resulted from the express request of the plaintiff. It was the unquestionable duty of the railway company to send off the hay as soon as it was placed upon the cars, and this duty they were about to perform, and refrained from its performance solely at the request of the plaintiff himself. When he objected to having the hay go forward he knew its exposed position, and to what dangers it was liable. These dangers having been incurred at his own request, with full knowledge of their character, and the company having been guilty of no other negligence by which the hazard to the hay was increased, there is no principle of law which will enable this plaintiff to charge the appellant with the consequences of an accident due only to himself. The proof shows that the locomotive was equipped with the best apparatus for arresting sparks, that the passenger train stopped on Sunday at its proper place, and that the engineer, in passing the hay, closed the damper of his locomotive for the purpose of aiding in arresting the sparks. There is no evidence in the record showing that the platform cars on which the hay was loaded could have been taken to any place on the side track where the...