The Union Ry. v. Kallaher
| Decision Date | 28 February 1883 |
| Citation | 12 Ill.App. 400,12 Bradw. 400 |
| Parties | THE UNION RAILWAY AND TRANSIT COMPANYv.THOMAS KALLAHER, JR., Administrator, etc. |
| Court | United States Appellate Court of Illinois |
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.
Messrs. G. & G. A. KOERNER, for appellant.
Mr. CHARLES W. THOMAS, for appellee; that if the evidence varied from the allegations of the declaration, advantage should have been taken of that in the court below, cited St. Clair Co. Ben. Society v. Fietsam, 97 Ill. 474.BAKER, P. J.
Appellee, as administrator, recovered in the circuit court a judgment for $5,000 against the Union Railway and Transit Company, appellant, for, as is claimed, wrongfully and negligently causing the death of his intestate.
On the night of the 22d of September, 1878, the deceased and one Harrigan left Highland for East St. Louis on the Vandalia train, and paid their fares to that place. The train stopped at the Relay depot in East St. Louis, but the men, by some mistake, did not get out, but remained in the Vandalia cars. At the Relay depot the Vandalia locomotive was detached from the train; and the Union Railway and Transit Company attached its locomotive thereto for the purpose of taking it across the bridge and through the tunnel to the Union depot in the city of St. Louis. The fare collector of the Illinois and St. Louis Bridge Company boarded the train at this Relay depot, and, upon its starting therefrom, proceeded to collect bridge fares, commencing with the passenger car nearest to the engine. There were only some ten or twelve persons in this car, among them Harrigan and the deceased. The collector called on them for their fares or tickets, and there is a serious conflict in the testimony as to what passed between him and them. At all events, the train was stopped, and it was then upon the bridge approach. Witnesses do not agree with reference to the circumstances under which the two men left the car; the claim of appellee is that they were ejected therefrom, while appellant insists the train was stopped at the special request of deceased and his companion, they saying they did not wish to cross the river, and that they voluntarily and without compulsion of any sort stepped from the car.
The deck of the wooden trestle of the east approach to the bridge was twenty-three feet wide, and had one railroad track on the north side and one on the south side, both tracks being laid on ties and the spaces between ties being five inches wide; and between the two tracks there was a plank walk five feet wide, with guard rails on each side of it, about nine inches in width. All inbound trains went to St. Louis on the north track, and all outbound trains went therefrom on the south track. The trestle-work at the place where intestate was killed was over twenty feet from the surface of the ground; there was no station or regular stopping place for trains on the bridge approach; and no light thereon other than the lantern carried by the watchman stationed there. When the train moved on to St. Louis, this watchman, who was a short distance east of where the train had stopped, seeing the two men, went toward them with his lantern. The men were then, it would seem, on the plank walk between the two railroad tracks, and were going toward East St. Louis; but deceased appears to have left this walk before the watchman could reach him, and to have crossed over the railroad ties and rails to the south and to have stepped off of the trestlework on the south side, where he fell twenty feet or more to the ground and was instantly killed. Some of the witnesses state it was a dark night, and others that it was a bright starlight night. There is evidence tending to show deceased was acquainted with that locality.
It is urged the trial court erred in refusing to give the second instruction asked by appellant. That instruction was as follows:
“If the jury believe from the evidence that the witness Scott was not employed by the Union Railway and Transit Company, and had no authority from said company to act for it, and was not authorized by it to exercise any...
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