Wabash R. Co. v. Bhymer

CourtSupreme Court of Illinois
Writing for the CourtRICKS
Citation214 Ill. 579,73 N.E. 879
PartiesWABASH R. CO. v. BHYMER.
Decision Date21 February 1905

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.


[214 Ill. 579]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 [214 Ill. 580]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

[73 N.E. 880]

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 [214 Ill. 581]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 [214 Ill. 582]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...

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11 practice notes
  • Hogarty v. Philadelphia & R. Ry. Co.
    • United States
    • United States State Supreme Court of Pennsylvania
    • 9 Octubre 1916
    ...and this is one of the tests in determining whether the amendment introduces a different cause of action. Wabash R. R. Co. v. Bhymer, 214 Ill. 579 [73 N. E. 879]. It is apparent that without this amendment the act of Congress could have had no place in the In Brinkmeier v. Missouri Pacific ......
  • Hogarty v. Philadelphia & R. Ry. Co., 476
    • United States
    • United States State Supreme Court of Pennsylvania
    • 9 Octubre 1916
    ...and this is one of the tests in determining whether the amendment introduces a different cause of action: Wabash R.R. Co. v. Bhymer, 214 Ill. 579. It is apparent that without this amendment the act of congress could have had no place in the case." In Brinkmeier v. Missouri Pacific Railroad ......
  • Philadelphia, B. & W. R. Co. v. Gatta
    • United States
    • United States State Supreme Court of Delaware
    • 22 Enero 1913
    ...Ry. Co., 107 Iowa, 660, 78 N. W. 694; Union Pac. Ry. Co. v. Wyler, 158 U. S. 285, 15 Sup. Ct. 877, 39 L. Ed. 983; Wabash R. Co. v. Bhymer, 214 Ill. 579, 73 N. E. 879; Chicago City Ry. Co. v. Leach, 182 Ill. 359, 55 N. E. 334; Fish v. Farwell, 160 Ill. 236, 43 N. E. 367; Nelson v. First Nat ......
  • Thayer v. Denver & R. G. R. Co., No. 1804.
    • United States
    • New Mexico Supreme Court of New Mexico
    • 31 Enero 1916
    ...760, 64 Pac. 319; Swain v. Knapp, 34 Minn. 232, 25 N. W. 397; Smart v. Burquoin, 51 Wash. 274, 98 Pac. 666; Wabash R. R. Co. v. Bhymer, 214 Ill. 579, 73 N. E. 879; 7 Standard Enc. Pro. 119. In the case of Smith v. Nichols, 35 E. C. L. 88, Chief Justice Tindall said: “The short answer to tha......
  • Request a trial to view additional results
11 cases
  • Hogarty v. Philadelphia & R. Ry. Co.
    • United States
    • United States State Supreme Court of Pennsylvania
    • 9 Octubre 1916
    ...and this is one of the tests in determining whether the amendment introduces a different cause of action. Wabash R. R. Co. v. Bhymer, 214 Ill. 579 [73 N. E. 879]. It is apparent that without this amendment the act of Congress could have had no place in the In Brinkmeier v. Missouri Pacific ......
  • Hogarty v. Philadelphia & R. Ry. Co., 476
    • United States
    • United States State Supreme Court of Pennsylvania
    • 9 Octubre 1916
    ...and this is one of the tests in determining whether the amendment introduces a different cause of action: Wabash R.R. Co. v. Bhymer, 214 Ill. 579. It is apparent that without this amendment the act of congress could have had no place in the case." In Brinkmeier v. Missouri Pacific Railroad ......
  • Philadelphia, B. & W. R. Co. v. Gatta
    • United States
    • United States State Supreme Court of Delaware
    • 22 Enero 1913
    ...Ry. Co., 107 Iowa, 660, 78 N. W. 694; Union Pac. Ry. Co. v. Wyler, 158 U. S. 285, 15 Sup. Ct. 877, 39 L. Ed. 983; Wabash R. Co. v. Bhymer, 214 Ill. 579, 73 N. E. 879; Chicago City Ry. Co. v. Leach, 182 Ill. 359, 55 N. E. 334; Fish v. Farwell, 160 Ill. 236, 43 N. E. 367; Nelson v. First Nat ......
  • Thayer v. Denver & R. G. R. Co., No. 1804.
    • United States
    • New Mexico Supreme Court of New Mexico
    • 31 Enero 1916
    ...760, 64 Pac. 319; Swain v. Knapp, 34 Minn. 232, 25 N. W. 397; Smart v. Burquoin, 51 Wash. 274, 98 Pac. 666; Wabash R. R. Co. v. Bhymer, 214 Ill. 579, 73 N. E. 879; 7 Standard Enc. Pro. 119. In the case of Smith v. Nichols, 35 E. C. L. 88, Chief Justice Tindall said: “The short answer to tha......
  • Request a trial to view additional results

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