Wagner v. Chicago & A.R. Co.

• Decision Date: 02 December 1914
• Docket Number: No. 9198.,9198.
• Court: Illinois Supreme Court
• Parties: WAGNER v. CHICAGO & A. R. CO.

265 Ill. 245

106 N.E. 809

WAGNER

v.CHICAGO & A. R. CO.

No. 9198.

Supreme Court of Illinois.

Oct. 16, 1914.

Rehearing Denied Dec. 2, 1914.

Error to Branch ‘D’ Appellate Court, First District, on Appeal from Superior Court, Cook County; John McNutt, Judge.

Action by Joseph M. Wagner against the Chicago & Alton Railroad Company. Judgment for plaintiff was affirmed (180 Ill. App. 196) by the Appellate Court which required a remittitur, and defendant brings certiorari. Affirmed.Winston, Payne, Strawn & Shaw, of Chicago (Silas H. Strawn, Edward W. Everett, and J. Sidney Condit, all of Chicago, of counsel), for plaintiff in error.

James C. McShane, of Chicago, for defendant in error.

COOKE, J.

Joseph M. Wagner, the defendant in error, recovered a judgment in the superior court of Cook county against the plaintiff in error, the Chicago & Alton Railroad Company, for $15,000 for injuries alleged to have been sustained by him while employed by the Chicago, Burlington & Quincy Railroad Company as a conductor in charge of a switching crew operating an engine and five cars over a track of plaintiff in error. On appeal the Appellate Court for the First District required a remittitur of $387.09 to be entered and the judgment was affirmed as to the remainder. The judgment of the Appellate Court has been brought here for review by writ of certiorari.

On the trial plaintiff in error tendered a peremptory instruction, which was refused by the court. This action of the court is assigned as error, on the ground that the evidence was insufficient to charge plaintiff in error, in law, with actionable negligence or to prove due care on the part of defendant in error.

[1][2]The evidence introduced on the part of the defendant in error tended to prove that he had been in the employ of the Burlington Company for 20 years as a number-taker, car-sealer, car-carder, switchman, timekeeper, and for the last four years as conductor in charge of a switching crew in Chicago. He was directed to take five baggage cars of the Great Northern Railway Company, which had come to Chicago on the Burlington Road, and deliver them to the Erie Railroad Company as its Fifty-Fifth street yards, three or four miles distant. The cars were assembled, and in the course of the transfer over different roads the engine was pushing them over a Y-track which was a part of plaintiff in error's Grove street tracks, connecting the tracks of the Pennsylvania and the Chicago & Western Indiana Railroad Companies. This Y-track ran northeast, and the train entered it at its connection with the Pennsylvania tracks, at the southwest end, and it was going northeast to the connection with the Chicago & Western Indiana tracks. There were many tracks at the place, and there was a semaphore post 16 feet high, 4 inches square, and painted white, standing near the track, which had been erected and was maintained and operated by the Chicago & Western Indiana Railroad Company and was a part of the joint interlocking system. Plaintiff in error did not own or in any manner control the post or its location, and the post had been there for 12 years while cars were frequently passing over the tracks. Defendant in error was hanging on the side of the front baggage car, 15 feet from the front end, where there was a door set back 4 or 5 inches from the side of the car, forming a recess. He was standing with his feet on the truss-iron under the bottom of the door or on a step below the door and was holding on by perpendicular grabirons on the sides of the door. There was a controversy whether the track was straight near the semaphore or not, but the evidence for defendant in error was that it was curved and he was on the inside of the curve. The train moved slowly over the Y, and he could see the semaphore for at least 100 feet; but he testified that it looked as if there was plenty of room until he came near the post, when he squeezed his body as tight as he could to the car, but he was struck, thrown down, and permanently injured. There was room enough between the semaphore and the end of the car as defendant in error came near the post, but the chord or right line formed by the side of the car, which was 65 feet long, intersecting the curve, brought the part of the car where defendant in error was hanging nearer to the post.

Plaintiff in error had made all repairs on the track for 12 years, employed switchmen, who made a record of all the engines and cars passing over the track, and for at least 5 years had rendered bills to the Burlington Company for trackage of its engine and cars, including two engines and five cars in the month of the accident. There was sufficient evidence of plaintiff in error's ownership and control of the track, and the semaphore post had been in the same place for many years. If the post was in dangerous proximity to the track it was negligence on the part of plaintiff in error to continue to operate trains, or to permit their operation by its licensee, with the dangerous obstruction, and the fact that the post was not erected nor maintained by plaintiff in error would not relieve it from liability. Illinois Terminal Railroad Co. v. Thompson, 210 Ill. 226, 71 N. E. 328;South Side Elevated Railroad Co. v. Nesvig, 214 Ill. 463, 73 N. E. 749. The evidence tended to prove negligence of plaintiff in error authorizing the submission of that issue to the jury.

[3] On the question of the care exercised by defendant in error, he testified the semaphore post was in plain sight for a considerable distance, and it was undisputed that he could have jumped off before reaching it and it was not necessary for him to ride where he was as there were other places of safety on the cars. A brakeman with an air-gun or tail-hose was located at the front end of the front car and was able to apply the air and stop the train. There was evidence that defendant in error ought to be somewhere where he could signal the engineer, and the evidence tended to prove that there was room enough between the post and the end of the car, and it was within the 15 feet that the car came too close to the post. Even if there was an error of judgment on the part of defendant in error, it would depend upon the circumstances whether it amounted to negligence, since a mistake does not in all cases imply a want of ordinary care. Chicago & Eastern Illinois Railroad Co. v. O'Connor, 119 Ill. 586, 9 N. E. 263;North Chicago Street Railroad Co. v. Dudgeon, 184 Ill. 477, 56 N. E. 796. The law does not pronounce a party to be either negligent or free from negligence under the conditions shown by the evidence, and the court did not err in submitting the issue to the jury.

[4][5][6][7][8][9] The original declaration charged that plaintiff in error and the Burlington Company were common carriers and engaged in interstate commerce; that defendant in error was employed as a switchman in such commerce by the Burlington Company; that plaintiff in error owned the track on which the Burlington Company, at the invitation and with the knowledge of plaintiff in error, operated its engine and cars; and that defendant in error was injured by a semaphore negligently placed or permitted to be placed alongside the track. Plaintiff in error filed a plea of the general issue and a special plea denying that it owned, possessed, or operated the track or the semaphore. Later two additional counts were filed by leave of court in which no mention was made of interstate commerce, and there was no allegation that the engine or cars were engaged in such commerce; but the liability charged was based on common-law negligence. To the additional counts the same pleas were filed as before; also, a special plea of the statute of limitations. The defendant in error's demurrer to the plea of the statute of limitations was sustained and the case was called for trial. In the course of the trial evidence was offered on the part of defendant in error tending to prove that the engines and cars were engaged in interstate commerce, when an objection was interposed on the ground that the question of interstate commerce had been eliminated and the demurrer to the plea of the statute of limitations sustained by agreement. While this stipulation or agreement does not appear in the bill of exceptions, it does satisfactorily appear from what followed when this objection was made that such an agreement had been entered into. The evidence that had been offered on this question was then stricken out by the court and no further evidence relating to interstate commerce was offered. Whether there was such an agreement or not is not material, so far as the case made by defendant in error in the first instance is concerned. Defendant in error had no cause of action against plaintiff in error under the federal Employers' Liability Act, as that act applies only where the relation of master and servant exists. To meet the case of defendant in error, the plaintiff in error proved that he was, and had been since 1902, a member of the relief department of the Burlington Company; that the employés of that company made monthly contributions to the relief fund; that the company maintained the department and bore the operating expenses; that he had accepted from the relief fund, as benefits, the sum of $1,231; and that $1,349.59 had been paid in his behalf for hospital bills, physicians' services, and the like. Of these amounts the Burlington Company had contributed not to exceed 15 per cent., or $379.09, the amount for which the Appellate Court required defendant in error to file a remittitur. In rebuttal defendant in error was permitted to prove that at the time he was injured the engine and cars were engaged in interstate commerce. The court gave, at the instance of defendant in error, an instruction that, if the jury found plaintiff in error guilty, then, in the assessment of damages,they should not credit the plaintiff in error with what the Burlington relief...