Wheelock v. Indus. Comm'n

Decision Date03 December 1925
Docket NumberNo. 16773.,16773.
Citation149 N.E. 514,318 Ill. 537
PartiesWHEELOCK et al. v. INDUSTRIAL COMMISSION et al.
CourtIllinois Supreme Court

OPINION TEXT STARTS HERE

Error to Circuit Court, Peoria County; Charles V. Miles, Judge.

Proceeding for compensation under the Workmen's Compensation Act by George Ihrig, employee, opposed by William W. Wheelock and others, receivers of the Chicago & Alton Railroad Company, employers. Award of compensation by the Industrial Commission confirmed by the circuit court, and the receivers bring error.

Reversed, and award set aside.Miller, Elliott & Westervelt, of Peoria (Silas H. Strawn, of Chicago, of counsel), for plaintiffs in error.

Harry A. Adams and R. F. Leger, of Rockford (William Johnson, of Rockford, of counsel), for defendant in error.

DUNN, C. J.

A writ of error was awarded to the receivers of the Chicago & Alton Railroad Company to review the judgment of the circuit court of Peoria county confirming an award of compensation made by the Industrial Commission against the plaintiffs in error in favor of George Ihrig, on account of an accident arising out of and in the course of his employment by the plaintiffs in error, which resulted in the amputation of his right leg.

[1] The only question in controversy is the jurisdiction of the Industrial Commission; the plaintiffs in error claiming that the commission was without jurisdiction, because the defendant in error at the time of the accident was employed in interstate commerce. If he was so employed, his right to compensation is governed by the federal Employers' Liability Act (U. S. Comp. St. §§ 8657-8665), and he has no remedy under the Workmen's Compensation Act (Smith-Hurd Rev. St. c. 48, §§ 138-172). Staley v. Illinois Central Railroad Co., 268 Ill. 356, 109 N. E. 342, L. R. A. 1916A, 450;New York Central Railroad Co. v. Winfield, 244 U. S. 147, 37 S. Ct. 546, 61 L. Ed. 1045, L. R. A. 1913C, 439, Ann. Cas. 1917D, 1139.

The accident occurred on February 26, 1923, at the Washington street crossing of the railroad in East Peoria. The defendant in error was employed, as he had been for three months, as a sergeant of railroad police on the Chicago & Alton Railroad. He had been stationed at Peoria about two months prior to the accident. He testified that his duties were to guard merchandise trains, watch trains and investigate robberies, and that, when he was on a train, his duty was to guard the entire train, the same as the duty of Lieutenant Kidder, who was his immediate superior in Peoria, from whom he usually got his orders from day to day. On the night of the accident he was told by Kidder to go along with this train (No. 180) to guard a shipment of two cars of alcohol which the train was transporting. The destination of those two cars was Chicago, and they were placed next to the caboose at the rear of the train according to the custom to place such shipments in that position so that the special agents can ride in the caboose and be near the shipments all the time. The train started from the yards that night at 10 o'clock. When it showed up at the Washington street crossing at East Peoria Ihrig took his revolver out of his holster, put it in his coat pocket, and got off the rear of the caboose to see if there was anybody there who would cause trouble. As he jumped off the train the revolver fell out of his pocket to the ground and exploded, sending a bullet through the calf of his right leg. Ihrig also testified that it was not the custom of the railroad company to have special police on all freight trains, but the custom was to have special police when there was a big shipment of clothing, shoes, or the like. They never put a man on a train for heavy stuff, such as machines or the like, but they always had a man for whisky. Lieutenant Conway, a special agent, was sent down from Chicago to guard those cars, and was on the train for that purpose. The train consisted, besides the two alcohol cars and the caboose, of nine other cars-two empty and the others loaded with interstate and intrastate shipments-but Ihrig testified that his duties that night were not to guard the entire train as well as the alcohol cars; that they were all three, Kidder, Conway and Ihrig, put right next to the alcohol cars, and their orders were never to leave them a minute.

G. E. Bentley, who was assistant to the chief special agent for the receivers, whose office was in Chicago, and whose duty it was to handle the office work and give instructions to the men as to what they should do from day to day, testified as to the duties of Ihrig and Kidder that they were assigned to and stayed in Peoria permanently; that their duties were to protect merchandise cars every night out of Peoria, one train going south (No. 97) and the other north to Chicago. They were to protect those trains. They did not ride the trains as far as Chicago. Sometimes they would ride them out as far as Washington, 12 or 15 miles from Peoria, and other nights they would ride them out as far as Varna, probably 30 miles. They did not ride all the way to Chicago because they were on duty every night, and they had to be back home early the next morning in order to get sleep to be ready for work the next night. Any night when there was any special car, such as an alcohol car, they would give assistance to the man that was sent down from Chicago. They would give him a hand; help with the car out as far as Washington; give him special help on that in addition to protecting the rest of the merchandise cars-the balance of the train. Ihrig's and Kidder's duty was to ride the trains out of Peoria. They did not have particular trains that they were assigned to. They arranged that among themselves. They were at Peoria to look after everything in general. They did not protect the yards at Peoria or East Peoria, as those yards did not belong to the railroad company, but to the Peoria & Pekin Union Railroad Company. The only duty they had was protecting merchandise cars out of Peoria in the evening or night. They were in Peoria with general directions to look out for things. The trains did not run on Sunday nights. When there was a big shipment of whisky or alcohol a man was sent from Chicago, and the local men would help him to see the those cars got out safe. When there was whisky or alcohol upon a train, it was customary to place those cars close to the caboose, so that they could be watched. When robberies of such shipments occurred they were generally committed by a gang of from five to eight men. On the night of this accident there were only three men on guard on the train. It was left to Kidder's judgment whether he should ride on the train that night or what Ihrig should do, and Ihrig was subject to the orders of Kidder. Bentley testified that Ihrig's duties, as given him by Bentley, were to guard all merchandise in the cars of any of these trains out of Peoria on the Chicago & Alton Railroad. His...

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5 cases
  • Hamarstrom v. M.K.T. Ry. Co.
    • United States
    • Court of Appeal of Missouri (US)
    • 4 Abril 1938
    ......Ed. 750); Bennor v. Oregon-Washington R. & Nav. Co. (Wash.), 27 Pac. (2d) 1082; Wheelock v. Ind. Comm. (Ill.), 149 N.E. 514, 517; Sailor v. Missouri Pac. R.R. Co., 18 S.W. (2d) 82, l.c. ......
  • Hamarstrom v. Missouri-Kansas-Texas R. Co.
    • United States
    • Court of Appeals of Kansas
    • 4 Abril 1938
    ......750); Bennor v. Oregon-Washington R. & Nav. Co. (Wash.), 27 P.2d 1082;. Wheelock v. Ind. Comm. (Ill.), 149 N.E. 514, 517;. Sailor v. Missouri P. R. R. Co., 18 S.W.2d 82, l. c. ......
  • Nichols v. St. Louis & S. F. R. Co., 6 Div. 257.
    • United States
    • Supreme Court of Alabama
    • 26 Octubre 1933
    ......619; Fitzgerald v. Great. Northern Ry. Co., 157 Minn. 412, 196 N.W. 657;. Wheelock v. Industrial Commission, 318 Ill. 537, 149. N.E. 514; Michigan Central R. R. Co. v. Industrial. ......
  • Missouri Pacific R. Co. v. Indus. Comm'n
    • United States
    • Supreme Court of Illinois
    • 23 Abril 1932
    ......Wheelock v. Industrial Comm., 318 Ill. 537, 149 N. E. 514. Alexander's employment was for the transportation of 117 empty cars in intrastate commerce. The ......
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