Toledo v. Asbury

• Decision Date: 31 January 1877
• Citation: 84 Ill. 429,1877 WL 9405
• Parties: TOLEDO, WABASH AND WESTERN RAILWAY COMPANYv.SUSAN A. ASBURY, Admx.
• Court: Illinois Supreme Court

84 Ill. 429

1877 WL 9405 (Ill.)

TOLEDO, WABASH AND WESTERN RAILWAY COMPANY

v.SUSAN A. ASBURY, Admx.

Supreme Court of Illinois.

January Term, 1877.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Sangamon county; the Hon. CHARLES S. ZANE, Judge, presiding.

Messrs. HAY, GREENE & LITTLER, for the appellant.

Mr. N. M. BROADWELL, and Mr. W. M. SPRINGER, for the appellee.

Mr. JUSTICE WALKER delivered the opinion of the Court:

The administratrix of Joseph T. Asbury brought an action on the case to recover damages for causing the death of her husband, by the railroad company.

It is averred in the declaration, the company had in their possession and use a passenger coach with a draw bar and coupling, used to connect it with other cars, and were in possession of and using a sleeping car also furnished with a draw bar and coupling, to be used to connect it with other cars; that these draw bars and couplings were so constructed as to be unsafe, unsuitable and dangerous to persons whose duty it was to form a coupling with them; that plaintiff's husband was a brakeman, and it was his duty to couple these cars, and whilst so doing, by reason of the unsafe and unsuitable draw bars, he was caught between the platforms of the cars and was killed.

The evidence shows, that one of the cars was provided with what is known as the “Miller” draw bar, and the other with an ordinary draw bar; that in using two such draw bars in coupling, the ends were liable to slip past each other, and thus bring the platforms near together. It also appears, that the company had, to some extent, introduced or were using cars with the “Miller” draw bar on their road. It also appears, that in making a coupling with ordinary draw bars, their ends or heads strike square against each other, and thus arrest the approach of the platforms. It also appears, that as brakeman it was the general duty of deceased to couple the cars, but in this case he was not specially ordered to do it. And it appears, in making the coupling the brakeman must go between the cars or on one of the platforms for the purpose.

On the occasion of the death of the husband of appellee, he was connected with a special train, used in conveying a circus company to different points on the company's road. This train had been to Keokuk and Quincy, and had run to Bluff City, east of the Illinois river, to get on the Hannibal branch of their road, for the purpose of going to that place. On reaching Bluff City, it became necessary to change the position of the engine and cars, so as to go in the opposite direction. The engine was reversed on a turn table, and the cars were so switched as to place them in a proper position; but in coupling the sleeping car to a passenger coach, the proper connection was not made, and the draw bars passed each other and locked. Thereupon deceased, with others, endeavored to separate them, by the use of an iron bar and other levers, but failed. The engine was then put in motion, under the supposition that the sleeping car, which was behind, would hold until the train was removed from the main line to the branch road, but it became detached. Thereupon, the conductor, deceased and another pushed the sleeping car forward on the track, for the purpose of making the coupling. When the two cars approached near to each other, deceased went forward and between the cars to couple them. Whilst there he received the injuries which caused his death. He was seen to go between the cars, and whilst there was heard to say: “Look out, or they may come together again.” He almost immediately came out, and walked, unassisted, to a bank near the road, and sat down. On those present approaching him, he seemed to be in great pain, and unable to speak, and was put on the pay car, which was then passing, and died in about a half hour after he was injured.

On this state of facts, the jury found a verdict in favor of plaintiff, and assessed her damages at $3000. A motion for a new trial was entered and overruled, and judgment was rendered on the verdict, and the company appeals.

It is first urged, that the verdict is not sustained by the evidence. As to the main facts of the case there is no conflict, and hence the question is, whether the verdict is against the testimony.

It is claimed by appellee, that the company was negligent in furnishing such couplers to these cars, and should be held liable; but this the company denies, claiming that...