Wabash R. Co. v. Bhymer

• Decision Date: 21 February 1905
• Citation: 214 Ill. 579,73 N.E. 879
• Parties: WABASH R. CO. v. BHYMER.
• Court: Illinois Supreme Court

214 Ill. 579

73 N.E. 879

WABASH R. CO.

v.BHYMER. ^*

Supreme Court of Illinois.

Feb. 21, 1905.

Appeal from Appellate Court, First District.

Action by Peter H. Bhymer against the Wabash Railroad Company. From a judgment of the Appellate Court, affirming a judgment for plaintiff (112 Ill. App. 225), defendant appeals. Reversed.

Wilkin and Magruder, JJ., dissenting.

C. N. Travous, for appellant.

Seth F. Crews and Ralph Crews, for appellee.

RICKS, C. J.

Appellee recovered a judgment in the superior court of Cook county against the appellant for $8,000 for personal injuries received by appellee while employed as a fireman on one of appellant's freight trains. The Appellate Court affirmed that judgment, and the present appeal is prosecuted from the judgment of affirmance. A brief statement of the facts will lead to a better understanding of the matters herein passed upon:

Early in the morning of December 9, 1899, a freight train known as ‘No. 3-64,’ north bound, left Marley, a station on appellant's road, 10 or 12 minutes ahead of another freight train bound in the same direction, known as ‘No. 94.’ The latter train was a double header, pulled by two engines coupled together at the head of the train. Appellee was the fireman upon the second of said engines. His train, No. 94, consisted of 28 loaded cars. It was a train of the first class with respect to rights, while train No. 3-64 was carrying coal and was of the third class, and consisted of 20 cars. At Marley a hot box was discovered on train No. 3-64, about 9 cars forward of the caboose. The box was cooled off and repacked, and a bag filled with water placed upon it, so as to have a continual dropping of water on the journal. This was the usual method for remedying the defect caused by hot boxes. Marley is 30 miles from Chicago, and the trains in question were running upon the Chicago branch of appellant's road. After cooling the box the train proceeded, and reached Orland, a station 7 miles north of Marley, where the conductor gave to the engineer the ‘go ahead’ signal. Just after passing Orland the box was found to be again hot, and the conductor and rear brakeman began signaling the engineer to stop by swinging their lanterns from the sides of the caboose, and this was kept up until the train came within a mile of Worth, a station in Cook county 5 1/2 miles from Orland, at which point the fireman on train No. 3-64 observed the signals and informed the engineer. It was the duty of the engineer to look out for signals. When the engineer was informed of the signals he applied the brakes, but, as the train was running at the rate of 60 miles an hour, before it could be stopped the heat caused the journal to twist off and drop to the ground, wrecking the cars and tearing up the track. The latter 9 cars went into a ditch. The caboose was turned over and the lights extinguished. Train No. 94 was following in the rear of the wrecked train, and was about 25 minutes behind time. The evidence tends to show that there were fusees in the caboose of train No. 3-64, which might have been lighted and thrown out for the purpose of warning No. 94 of danger, but they seem to have been forgotten. A fusee is an extra danger signal, which makes a strong red light and can be seen at least a mile. As soon as the caboose of No. 3-64 was turned over the conductor and brakeman got out of it, and the conductor took a torpedo with him and started back to signal No. 94 to stop. On his way he took a switch light from a stub switch a short distance from Palos Springs, placed a torpedo on the track, and with the lantern signaled the oncoming train (No. 94) to stop. As the train reached him he threw his lantern at the cab of the front engine, but the lantern passed over it and lodged upon the second engine between the guides on the water drum, where it was afterwards found. The view of the fireman on the first engine of No. 94 was somewhat obstructed by the head brakeman, who had entered the engine and was sitting in the seat box on the engine. No one on No. 94 seems to have seen the light of the signal, but when the engine struck the torpedo and it exploded the brakes were applied. Train No. 94 was running downgrade at a high rate of speed, and before it could be stopped reached the point where the rails were broken and displaced, and it was ditched and appellee injured. Prior to the wrecking of the first train the track was in good and safe condition and the roadbed well ballasted.

The declaration, as finally amended, contained five counts,-the original and four additional counts. The first count, filed September 21, 1900, charged that appellee was an employé of appellant, in the line of his duty, on a certain engine drawing a freight train in the nighttime; that it was dark, and it was defendant's duty to have and keep its track in safe condition for travel by trains; that defendant negligently caused and permitted the track and certain rail or rails to become detached and loosened and displaced; that defendant had notice; that plaintiff was exercising due care; that in consequence thereof the locomotive left the track and plaintiff was injured. November 30, 1901, appellee filed two additional counts. The first alleged the relation, time, and employment, and the duty of defendant to keep the track safe for travel; that a certain other locomotive and train had prior thereto become wrecked and were lying opposite the track, and had thereby detached, loosened, and displaced certain rails; that defendant knew plaintiff was upon the train riding toward said point, and it was its duty to warn plaintiff of such displacement, but it failed to do so, in consequence of which the locomotive carrying plaintiff left the track and plaintiff was injured. The second additional count alleged the relation of the parties, and that defendant was operating two trains, with certain engines, between Palos Springs and Worth; that plaintiff was upon an engine drawing one of said trains in the night, and that it was the duty of defendant to keep its track in safe condition; that defendant negligently caused, suffered, and permitted a certain other locomotive and train to become wrecked, and the rails loosened and displaced; and that because of such negligence of defendant the locomotive upon which plaintiff was riding left the track where the rails were displaced, and plaintiff was injured.

On March 27, 1902, after the trial had proceeded to the close of all the evidence, and more than two years after the injury, the appellee filed two more (the third and fourth) additional counts to his declaration. The third charged that the defendant owned the railroad and was operating and running certain engines and cars over the same towards the town of Worth; that plaintiff was defendant's servant, and upon an engine drawing a train along said track in the nighttime, and that it was defendant's duty to keep its track safe for travel; that defendant ‘negligently so operated the certain other train in such a way and manner as to permit and cause said certain other locomotive and train of cars to be wrecked upon and along said track there,’ and thereby detached, loosened, and displaced certain rail or rails from the ties; and that because of such negligence of defendant, and without want of care of the plaintiff, the locomotive on which plaintiff was left the track, where the rails were displaced, and ran into a ditch, etc. The fourth additional count charged that defendant was a corporation and possessed of a railway; that plaintiff was in defendant's employ as its servant, and as such and in the performance of his duty was upon a certain engine, for defendant, drawing a train of freight cars over its line in the night; that it was defendant's duty to have and keep its track reasonably safe for travel; that a certain other locomotive engine and train of cars attached were being drawn along said track in the same direction, but some distance in front of plaintiff's train, and said train was preceding the one on which plaintiff was riding, and ‘was so operated and conducted that it became necessary then and there to stop the same, and certain agents of defendant upon said train thereupon immediately endeavored, by the giving of signals, to stop said train, which signals were not obeyed, and said train failed to stop, and it thereupon became defendant's duty to warn plaintiff, who defendant well knew was riding on its train as aforesaid toward the point where said efforts were being made to stop said train as aforesaid, yet defendant negligently failed to warn plaintiff of the fact that said train must be stopped,’ and said def...