The Wabash v. Fenton

• Decision Date: 28 February 1883
• Citation: 12 Ill.App. 417,12 Bradw. 417
• Parties: THE WABASH, ST. LOUIS AND PACIFIC RAILWAY COMPANYv.JOHN FENTON.
• Court: United States Appellate Court of Illinois

12 Ill.App. 417

12 Bradw. 417

THE WABASH, ST. LOUIS AND PACIFIC RAILWAY COMPANY

v.JOHN FENTON.

Appellate Court of Illinois, Fourth District.

February Term, 1883.

OPINION TEXT STARTS HERE

APPEAL from the City Court of East St. Louis; the Hon. WILLIAM P. LAUNTZ, Judge, presiding. Opinion filed April 13, 1883.

Mr. G. B. BURNETT, for appellant; that the accident to plaintiff was but an ordinary peril of the service he was employed in, cited Wood on Master and Servant, 704; Wonder v. B. etc. R. R. Co. 3 Am. R. 143; T. N. & W. R'y Co. v. Black, 88 Ill. 112; C. & N. W. R. R. Co. v. Ward, 61 Ill. 130; I. B. & W. R. R. Co. v. Flanigan, 77 Ill. 365; Clark v. C. B. & Q. R. R. Co. 92 Ill. 43; C. B. & Q. R. R. Co. v. Abend, 7 Bradwell, 130.

The evidence fails to show any liability on the part of defendant: I. C. R. R. Co. v. Mc Kee, 43 Ill. 119; Wood on Master and Servant, 704-756; Baliora v. Portland Co. 48 Me. 291; Columbus, etc. R. R. Co. v. Webb, 12 Ohio, 475.

A party injured while attempting to couple cars in motion, can not recover: Muldowney v. I. C. R. R. Co. 39 Ia. 615; Williams v. Cent. R. R. Co. 43 Ia. 396; Marsh v. S. C. R. R. Co. 56 Ga. 274.

Employes engaged in employment known to be dangerous, must exercise a corresponding degree of care: C. B. & Q. R. R. Co. v. Avery, 8 Bradwell, 133; C. & N. W. R'y Co. v. Donahue, 72 Ill. 106; C. & A. R. R. Co. v. Brush, 84 Ill. 570; Penn. Co. v. Lynch, 90 Ill. 333.

The court erred in admitting evidence of what the car repairer said after the accident: Rogers v. McCune, 19 Mo. 570; Ladd v. Congins, 35 Mo. 513; McDermit v. H. & St. Jo. R. R. Co. 73 Mo. 516; Bacon v. Inhabitants, etc. 7 Cush. 586; Luby v. Hudson River R. R. Co. 17 N. Y. 133; Mich. Cent. R. R. Co. v. Gougar, 55 Ill. 503; Mich. Cent. R. R. Co. v. Carrow, 73 Ill. 348.

Instructions must be based upon matters admissible in evidence under the pleadings: I. C. R. R. Co. v. McKee, 43 Ill. 119; C. C. & I. R'y Co. v. Troesch, 68 Ill. 545.

A railroad company is not an absolute insurer of the safe and sound condition of all cars coming over its road: Thompson on Negligence, 982; C. & A. R. R. Co. v. Mahoney, 4 Bradwell, 262; Price v. Henegan, 5 Bradwell, 234; T. P. & W. R'y Co. v. Conroy, 61 Ill. 162; Richardson v. Cooper, 88 Ill. 270; Heyer v. Salsbury, 7 Bradwell, 93; North Chicago Rolling Mill Co. v. Monka, 4 Bradwell, 664.

The proof of knowledge, or that knowledge might have been obtained by the exercise of diligence is essential to a recovery and must be alleged: East St. Louis P. & P. Co. v. Hightower, 92 Ill. 139; C. & N. W. R. R. Co. v. Scheurring, 4 Bradwell, 533; I. C. R. R. Co. v. McKee, 43 Ill. 119.

As to contributory negligence: C. B. & Q. R. R. Co. v. Lee, 68 Ill. 576; Shearman and Redfield on Negligence, § 11.

Mr. JAMES J. RAFTER and Mr. M. MILLARD, for appellee; as to how objections to the declaration are regarded after defendant has failed in a contest on the merits, cited Lusk v. Cassell, 25 Ill. 209; Otto v. Jackson, 35 Ill. 349; Railroad Co. v. McCannon, 41 Ill. 238; Demesney v. Gravelin, 56 Ill. 93; Herrick v. Swartout, 72 Ill. 340; Burker v. Korzier, 80 Ill. 205.

Machinery and cars of a railway company ought to be such as will give reasonable protection to operatives: T. W. & W. R. R. Co. v. Fredericks, 71 Ill. 294.

BAKER, P. J.

This was an action prosecuted by John Fenton, appellee, against the appellant corporation, to recover for personal injuries. There was judgment below for $8,000.

Appellee was a yard switchman employed in the yards of appellant at East St. Louis. On the 30th day of November, 1881, a train of cars that had lately arrived in the yard was being broken up, and the cars distributed; it became necessary to couple two cars together, and appellee stood in a position where he would be between the ends of the cars ready to couple them when they should meet. As the cars came together, the force of the moving car caused the draw bar of the car at which he was standing to break into three pieces, one of which struck him on the head, knocking him down on the rail, and the wheel of the car passed over his right leg, crushing it, and rendering amputation necessary.

The declaration is framed upon the hypothesis appellant was guilty of negligence in furnishing a draw bar that was worn out and defective.

On the trial, the court, against the objections of appellant, permitted one Brown, who was a witness for appellee, to testify to what one Gruber, a car repairer, or car inspector (it is uncertain from the testimony which he was) of appellant, told him the day after the accident, as to the condition of the draw bar, and also to testify to what Gruber said about a certain car then standing on the repair track, and a draw bar which was also there, being the car and draw bar that had been the occasion of the injury. The declarations or admissions of an agent or servant are only evidence when they enter into and form a part of the res gestæ; they must be made not only during the continuance of the agency, but in regard to a transaction depending at the very time; and they must be within the scope of the agency, and are admissible only so far as there is authority to make them. 1 Greenl. Ev. §§ 113, 114; M. C. R. R. Co. v. Gougar, 55 Ill. 503.

If any fact material to appellee rested in the knowledge of a servant of appellant, it should have been proven by his testimony, and not by his mere assertion. The action of the court in admitting proof of these statements was erroneous.

The court, on motion of appellee, gave to the jury the following instruction:

“2d. The court instructs...