The Wabash v. Thompson
| Decision Date | 30 November 1881 |
| Citation | 10 Ill.App. 271,10 Bradw. 271 |
| Parties | THE WABASH, ST. LOUIS AND PACIFIC RAILWAY COMPANYv.THOMAS THOMPSON. |
| Court | United States Appellate Court of Illinois |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of Morgan county; the Hon. CYRUS EPLER, Judge, presiding. Opinion filed February 3, 1882.
Messrs. BROWN, KIRBY & RUSSELL, for appellant; that to recover for such injuries the plaintiff must allege and prove that he was exercising due care, cited I. & St. L. R. R. Co. v. Evans, 88 Ill. 63; C. B. & Q. R. R. Co. v. Hazzard, 26 Ill. 373.
It is proper to reach any defect of substance in the declaration by motion in arrest of judgment: Wright v. Bennett, 3 Scam. 258; Smith v. Curry, 16 Ill. 147; Schofield v. Settley, 31 Ill. 515; Cook v. Orne, 37 Ill. 186; Haynes v. Lucas, 50 Ill. 436; Nelson v. Borchenius, 52 Ill. 236.
An instruction which assumes to give the facts of the case, and omits those that tend to the advantage of one party, is erroneous: Evans v. George, 80 Ill. 51; Homes v. Hale, 71 Ill. 552; Calef v. Thomas, 81 Ill. 478; Thorn v. McVeagh, 75 Ill. 81.
An instruction upon plaintiff's right to recover, which omits the question of reasonable care on his part, is erroneous: St. L. & S. E. R. R. Co. v. Britz, 72 Ill. 256; C. &. N. W. R. R. Co. v. Clark, 70 Ill. 276.
Where the plaintiff's own unlawful act concurs in causing the injury, he can not recover compensation therefor: Harris v. Hatfield, 71 Ill. 298; Hall v. Corcoran, 107 Mass. 251; Worcester v. E. M. Bridge Co. 7 Gray, 459; Staunton v. M. R'y Co. 14 Allen, 485; Holland v. City of Lowell, 3 Allen, 407.
An employe can not recover for an injury from defective machinery, unless his employer knew or ought to have known of the defect, and the employe did not know of it: M. R. & L. E. R. R. Co. v. Barber, 5 Ohio St. 541; Coon v. Utica & S. R. Co. 6 Barb. 231; Farwell v. B. & W. R. R. Co. 4 Met. 49; Hays v. W. R. R. Co. 3 Cush. 270; Albro v. Agawam Canal Co. 6 Cush. 75; Dillon v. U. P. R'y Co. 3 Dill. 320.
The servant takes upon himself the risk of all hazards incident to his employment: Clark v. St. P. & S. C. R'y Co. 9 N. W. Rep. --; Fleming v. St. P. & D. R'y Co. 6 N. W. Rep. 448; Davitt v. Pacific R'y Co. 50 Mo. 302; Kroy v. C. & M. W. R. R. Co. 32 Iowa, 357; Dynam v. Leach, 26 Exch. 221; Assop v. Yates, 2 H. & N. 768; C. & N. W. R. R. Co. v. Ward, 61 Ill. 130; C. & N. W. R. R. Co. v. Donahue, 75 Ill. 106; I. B. & W. R'y Co. v. Flannigan, 77 Ill. 365; T. W. & W. R'y Co. v. Moore, 77 Ill. 217; Ill. Cent. R. R. Co. v. Cox, 21 Ill. 20.
Messrs. MORRISON, WHITLOCK & LIPPINCOTT, for appellee; as to the liability of the company, and that in cases of a violation of a statute negligence is presumed, cited Ewing v. C. & A. R. R. Co. 72 Ill. 25; T. P. & W. R'y Co. v. Pence, 68 Ill. 524; T. P. & W. R'y Co. v. Logan, 71 Ill. 191.
Courts have repeatedly held railroad companies liable for damages resulting from a failure to fence: Corwin v. N. Y. R. R. Co. 13 N. Y. 42; Shepard v. Buffalo, etc., 35 N. Y. 641; Munch v. N. Y. C. R. R. Co. 29 Barb. 647; Shearman & Redfield on Negligence, § 372; St. L. A. & T. H. R. R. Co. v. Todd, 36 Ill. 409; C. & N. W. R. R. Co. v. Harris, 54 Ill. 528.
In cases of this nature, nothing but gross negligence on his part, will prevent plaintiff's recovery: Somerville v. Marks, 58 Ill. 371; Sangamon Dis. Co. v. Young, 77 Ill. 197.
This was an action on the case commenced by appellee against appellant to recover for personal injuries received by the former under the following circumstances.
At Alexander Station appellant had a pump which was worked by means of a horse-power, with shafting which was three lengths of about eight feet each. The pump was situated between the main and side tracks, and the horse-power was north of the side track. The tumbling-rod passed under the rails of the side track and connected with machinery used for letting off the water from the water-tanks, hauled to Alexander into the well; and from the well the water was pumped into a tank, from which it was let into the tenders of the locomotives. The connection was under the car, and in order to connect with the pipe leading into the well, the attendant had to get partially under the car and very close to the tumbling-rod.
Appellee had horses and a grown son, and made a contract with the railroad company to pump the water from the well to the tank. He used his own team, employed his son to assist him, and had control of the machine and its operation. The water was brought in iron oil-tanks with a tap underneath which could be unscrewed. A spout was fixed to catch the water and convey it to the well. To do this it was necessary to get under the car every time the water was taken from the tank.
On the 18th of October, 1879, the third night of attending to this work, appellee went under the car to fix the tank to draw off the water, and the car had to be fixed almost to a half-inch to get it right. While he was fixing the spout to catch the water, the horse working the machine became frightened by the escape of steam from the locomotive, and going very fast, the shaft caught the short heavy coat worn at the time by appellee, and drew him under, injuring him severely.
The Revised Statutes of 1874, page 582, provides:
SEC. 1. “That all persons in this State who are or who may hereafter own or run any threshing-machine, corn-sheller or any other machine which is connected to a horse-power by means of a tumbling-rod or line of shafting, shall cause each and every length or section of such tumbling-rod (except the one next the horse-power) together with the knuckles or joint and jacks thereof, to be safely boxed or secured while running.
SEC. 2. Any person owning or running any machine as mentioned in section one of this act, without complying with the requirements of the aforesaid section, shall be held liable to the person damaged, for any damage which may be sustained by such person by reason of such neglect, and no action shall be maintained nor shall any legal liability exist for services rendered by or with any such machine, when it shall be made to appear that the first section of this act has not been complied with.”
The declaration of appellee contains no...
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