Wabash v. Deardorff
| Citation | 14 Ill.App. 401,14 Bradw. 401 |
| Court | United States Appellate Court of Illinois |
| Decision Date | 30 November 1883 |
| Parties | WABASH, ST. LOUIS & PACIFIC RAILWAY COMPANYv.EMANUEL B. DEARDORFF, by next friend, etc.a1 |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of Macon county; the Hon. C. B. SMITH, Judge, presiding. Opinion filed February 5, 1884.
Messrs. CREA & EWING and Messrs. OUTTEN & VAIL, for appellant; that the railroad company was not guilty of negligence in loading its cars in the manner it did, cited Atchison, T. & S. F. Ry. Co. v. Plunket, 25 Kan. 188; Day v. T. C. S. & D. Ry. Co., 42 Mich. 523; Baldwin v. C. R. I. & P. R. R. Co., 50 Ia. 680; Mich. C. R. R. Co. v. Smithson, 45 Mich. 212; I. B. & W. Ry. Co. v. Flanigan, 77 Ill. 365.
As to non-liability of employer for the risks ordinarily incident to the employment: C. & T. R. R. Co. v. Flanigan, 11 Bradwell, 147; Camp Pt. Mfg. Co. v. Ballou, 71 Ill. 421; Ladd v. New Bedford R. R. Co., 20 Am. R. 332; Nayler v. C. & N. W. Ry. Co., 5 Am. & Eng. R. R. C. 460; Ballou v. C. & N. W. Ry. Co., 5 Am. & Eng. R. R. C. 480; Sykes v. Packer, 99 Penn. 465: Green, etc., Co. v. Bresmer, 97 Penn. 103; Northern Central Ry. Co. v. Hasson, 39 Legal Intelligencer, 442.
As to fellow servants: Smith v. Flint, etc., Ry. Co., 46 Mich. 258; C. & A. R. R. Co. v. Murphy, 53 Ill. 336; Valtez v. O. & M. R. R. Co., 85 Ill. 500.
Mr. I. A. BUCKINGHAM and Messrs. ELDRIDGE & HOSTETLER, for appellee; as to fellow servants, cited C., R. I. & P. R. R. Co. v. Henry, 7 Bradwell, 322; C. & N. W. Ry. Co. v. Moranda, 93 Ill. 302.
By agreement of parties these cases are to be tried together, the facts relied upon for a recovery being the same in each.
The actions were brought against the railroad, the one by Emanuel Deardorff, a minor, in his own name, by his next friend, and the other by his father, to recover for a personal injury received by the said Emanuel in coupling cars on a side track of appellant's road.
The circumstances of the injury were, that on the night of January 16, 1880, a freight train on appellant's road left Danville for Decatur. On the way the rear brakeman became sick, and the conductor telegraphed to the latter place for a man to take his place when Emanuel B. Deardorff, a strong young man about nineteen years of age, who was then, and had been for some time previous, employed by the company as a brakeman, was assigned to that duty. Before the train arrived at Decatur, a freight train from the east, had side tracked near the east end of the 7th or coal track, three coal cars belonging to the Baltimore and Ohio road, loaded with old iron for Springfield. The iron rails were longer than the cars in which they were placed and one end rested on the bottom of the car, pressing against the gate at that end; thence, at an angle of two and a half feet in thirty, they passed over and rested on the gate at the other end, projecting from a foot and a half to two feet over the end of the car. About two o'clock A. M. the train arrived. The night was dark and foggy, and Deardorff says the lamp of the sick brakeman, which he took by the direction of the conductor, was somewhat smoked. He went to the 7th track to make the couplings of the Springfield cars, opened the switch and gave the engineer the signal to back up, and then went to the place where the coupling was to be made; did not notice what kind of a car it was nor that the iron rails extended over the end; in attempting to make the coupling he was struck in the head by the projecting iron, and received the injury complained of.
The first count of the declaration in each case charges that the company was guilty of negligence in permitting its servants, engaged in a different department of its service, to so load the iron upon its cars as to project over the end of the same.
The second count charges the negligence to consist in receiving from other railroad companies the cars so negligently and dangerously loaded.
It is contended by appellant that the evidence wholly failed to sustain the charge of negligence against it; that the injury received by Deardorff was...
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