Yeates v. Illinois Cent. R. Co.

• Decision Date: 14 October 1909
• Citation: 89 N.E. 338,241 Ill. 205
• Parties: YEATES v. ILLINOIS CENT. R. CO.
• Court: Illinois Supreme Court

241 Ill. 205

89 N.E. 338

YEATES

v.ILLINOIS CENT. R. CO.

Supreme Court of Illinois.

June 16, 1909.

Rehearing Denied Oct. 14, 1909.

Appeal from Appellate Court, First District, on Appeal from Circuit Court, Cook County; R. W. Clifford, Judge.

Action by Richard Yeates against the Illinois Central Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.Calhoun, Lyford & Sheean (John G. Drennan, of counsel), for appellant.

James C. McShane, for appellee.

CARTWRIGHT, J.

This is an appeal from a judgment of the Branch Appellate Court for the First District affirming a judgment of the circuit court of Cook county for $22,500 in favor of appellee and against appellant on account of injuries receivedin a collision between a switch engine of the Michigan Central Railroad Company, upon which the appellee, a member of the switch crew, was riding, and a road engine of the same company, necessitating the amputation of both of appellee's legs above the knees.

A brief for appellant was filed presenting three grounds relied upon for a reversal of the judgment: First, that the trial court erred in refusing to direct a verdict of not guilty; second, that the court erred in refusing to set aside the verdict, because it showed that the jury did not consider a covenant not to sue the Michigan Central Railroad Company; and, third, that the court erred in giving to the jury instructions numbered 4 and 6 at the request of appellee. This brief was followed by an argument discussing and elaborating the points contained in the brief, and both were in accordance with the rule of this court. That rule required the appellee to file a brief containing a short and clear statement of the propositions by which counsel sought to meet the alleged errors and sustain the judgment, which brief might be followed by an argument confined to discussion and elaboration of the points contained in the brief. Instead of complying with the rule, counsel for appellee filed what is called a statement, brief, and argument, giving no attention to the questions raised or the errors alleged or the order of their presentation, but constituting a sort of treatise on the facts and law applicable to this and similar cases, and presenting the views of counsel on every subject that might have been involved in the appeal. It is needless to say that the rule should be complied with and the brief and argument for appellee should be a reply to the points made for the appellant, and the argument should follow the order of their presentation, so that the court may get the points made by the appellant, with the answers thereto, in some intelligible form.

The amended declaration contained seven counts, but on the trial the jury were instructed to disregard the third, fifth, sixth, and seventh, and the cause was submitted on the first, second, and fourth. The ground upon which the defendant was charged with liability was that a switch tender in its employ threw a switch and signaled and permitted a train drawn by the switch engine on which plaintiff was riding to run north upon a track at a time when said switch tender knew, or by the exercise of ordinary care would have known, that the road engine was liable to be backing south.

The facts not in dispute at the trial are as follows: From Kensington, south of Chicago, the trains of the Michigan Central Railroad Company come into the city over the defendant's tracks to Harrison street. At that point there is a diamond switch, operated by a switch tender employed and paid by the defendant, but the defendant is reimbursed to the extent of one-third of his wages by the Michigan Central Railroad Company. The switch tender throws the switches and controls the movements of trains passing that point. The switch leads to two tracks, numbered 5 and 6, running north to about Adams street, which the Michigan Central Railroad Company holds under a perpetual lease. From Adams street the yards of the Michigan Central Railroad Company extend north to South Water street, and are owned by that company in fee. No. 5 is the west track, and the usual method is for a train coming in from the road to be let in by the switch tender on track No. 5. After the train has pulled in so as to clear track No. 6, the engine is detached and crosses over to track No. 6 (the east track), and backs south to the roundhouse, at Sixteenth street. A switch engine then comes south from the yards on No. 6, and pushes the train up into the yards. On the morning of December 12, 1903, at about 8:30, a Michigan Central freight train came from the south to the diamond switch, and was let in by the switch tender on track No. 5. The train stopped and the brakeman uncoupled the engine, according to the custom, and the engine passed over to track No. 6, and started to back south on its way to the roundhouse. Just after the freight train had pulled in or track No. 5, the switch engine, on which the plaintiff was the forward switchman, came north and stopped south of the switch, drawing seven or eight cars. There was a heavy snow falling, which prevented seeing any object at a distance. When a train went north on track No. 6, it was the practice to proceed carefully, with the engine and train under full control, as switch engines might be expected at any time coming south on that track, but it had been a regular custom for the switch tender to hold out all engines and trains until the road engines that had hauled trains in had uncoupled from their trains and backed south over track No. 6 on the way to the roundhouse, which was ordinarily not more than five minutes. The only exception was in case the road engine was delayed at the north end of the yards for a considerable time, which occasionally happened, when the switch tender would allow engines or trains to go north upon track No. 6 after first informing their crews that the road engine was still up in the yards. None of the switch train crew at this time knew that the freight train had pulled in on track No. 5, and, after waiting a few minutes for a signal, the switch tender signaled the train to come ahead and threw the switch. The switch crew did not know what track they were to take, but, when they turned the curve into track No. 6, they saw that there was a freight train standing on track No. 5, but they did not know that the road engine had not come out. The switch engine proceeded slowly north, with the bell ringing and with a lookout for switch engines which might be coming south on the track. It was impossible to see any distance, and, when the switch engine reached the Jackson street viaduct, there was also a great deal of smoke and steam from one of the defendant's switch engines standing there. The road engine was backing, without the bell riging, at a rate estimated from 6 to 12 miles an hour, and the crews could not see each other more than a car length, so that a collision occurred and the plaintiff lost both of his legs. There was a dispute at the trial between the switch tender and the members of the switch crew in this: The switch tender testified that when the engine was passing he shouted to them, ‘Go up No. 6. I am letting you up the wrong main. Go up there easy;’ but the members of the switch crew denied that they heard anything of the kind.

The grounds upon which it is argued the court ought to have directed a verdict are that the switch crew knew that they might meet a switch engine at any time, and, when they saw the freight train standing on track No. 5, they also knew that they might meet the road engine; that, if the act of the switch tender was negligent, it was not the proximate cause of the accident, for the reason that the switch crew were aware of probable danger and proceeded slowly and cautiously for two blocks in anticipation that they might meet an...