223 Ill. 395 | Ill. | 1906
delivered the opinion of the court:
Appellant urges that the court should have directed a verdict for the defendant on the fourth count of the declaration on the ground of variance between the count and the proof given to support it, insisting that the count charges that the defective appliances, chains and couplings were upon the car to be switched in onto the stub-track, whereas the proof showed that they were upon the car' from which said car so to be switched was uncoupled. We think a fair reading of the entire count shows that this criticism is not well taken. The admission of evidence on this question of defective coupling appliances was not objected to by appellant on the trial. The fact that the defective coupling was not on the car which was being switched but on the car from which it was being uncoupled does not seem to us to be material. If appellant had been surprised by this alleged variance in the proof it should have so stated at the time of the trial.
The principal contention of appellant is, that on the evidence the case should have been taken from the jury. Some discussion is found in the briefs as to the right of this court to review evidence where the case has been first passed upon by the Appellate Court. By the terms of the statute all controverted questions of fact are settled by that court when it approves the verdict of the jury. This court has decided many times that on a motion to take the case from the jury the only question that can be here reviewed is whether or not there is any evidence in the record fairly tending to support the plaintiff’s cause of action. The weight of the testimony is never involved. Chicago City Railway Co. v. Martensen, 198 Ill. 511; Chicago and Alton Railroad Co. v. Howell, 208 id. 155; Chicago and Eastern Illinois Railroad Co. v. Schmitz, 211 id. 446; Blakeslee’s Express Co. v. Ford, 215 id. 230; Chicago Union Traction Co. v. Lundahl, id. 289.
Appellant insists that appellee’s injury was not caused by any negligence on its part; that appellee assumed the risk of any injury which might occur from these semaphore wires or from the coupling appliances in question, and that there is no credible evidence which shows to the contrary. It is contended by appellee that the semaphore wires should not have crossed the track at the point in question, or if they did, they should have been covered in some way to prevent appellant’s employees from tripping over them. At least five witnesses testified on the practicability, from a working railroad standpoint, of boxing or covering the wires at this point. Two of these, testifying for the plaintiff, had years of practical experience in running trains. A third, also testifying for the plaintiff, was a civil engineer, who had given considerable study to the special question and had been employed at least once for the purpose of locating and installing semaphore wires in a switch yard. All three of these witnesses agreed that it would be practicable to cover or box wires at this point so plaintiff would not have tripped at the time he was switching the cars. Two witnesses, both with large experience in such matters, testified for the defendant on this subject. Both were in charge of installing semaphore wires,—• one for appellant company and the other for the Illinois Central Railroad Company. Witness Dunham, employed by the Illinois Central Railroad Company, stated that railroads did, at times, cover semaphore wire lines, but it was not the common practice; that they covered them at street and road crossings or where such wires passed directly in front of station platforms; that the wires in question could have been boxed, but such a plan would cause a series of bridges along the right of way, and that whether such bridges would be practicable from a railroad standpoint would depend upon local conditions. This witness was not familiar with the local conditions at Tamms. Both of these experts testified that where wires of this kind were boxed it was found that dirt and other rubbish would accumulate in the box, and that during the winter months surface water would run in and freeze, and that there was danger from these causes if the wires were covered or boxed, that they would not properly work, and that serious accident might thereby be caused.
Appellant claims that the law permits the employer to carry on his business in his own way and to adopt any known pattern or description of instrumentality, provided such instrumentality or method of work is recognized as reasonable and safe for the use to which it is put; that appellee knew of the wires, as he had passed over the ground between the water tank and station many times during the months immediately previous to this accident. There is testimony tending to show that appellee had previously walked on the side of the track where these wires -were, and necessarily over them when walking there in the line of his duty. He himself testified that he knew generally where the wires were, but that he was accustomed to walk along between the rails at the point where the wires crossed under the track in a groove or space between the ties. Whether he would have occasion to notice them especially in passing was a question for the jury on the facts presented. He also stated that he did not think he himself had ever been called upon before to do the work of uncoupling cars when switching them onto this stub-track, although there is evidence by one of the appellant’s employees that he had seen him before this help uncouple cars at this point.
Counsel for appellant repeatedly urge that there is no evidence in the record to indicate that the coupling appliance was defective. All the witnesses who testified on this point contradict this. Plaintiff himself testified that when he attempted to uncouple the car he raised the lever and found that the chain was so short that while he could uncouple the car he could not pull the lever onto the inclined plane where it should have been retained, in which case it would not have been necessary for him to have walked along the side of the car to hold up the lever. Every witness, to the number of six or seven, testifying on this question agreed with him, some of them calling the device a catch, fastening, hook or dog, instead of inclined plane. Appellant called no witness as to the defective coupling. It is therefore fair to assume that the testimony given for appellee on this subject is correct. It is true that some of the witnesses also testified that frequently a conductor or brakeman would be seen walking alongside a train holding up the lever; but a fair reading of their testimony shows that this was only done when the lever for some reason would not properly work and hold the lug or pin up so that the cars would remain uncoupled. They also testified that if the coupling appliance was defective, as was this, the plaintiff followed the usual and customary railroad practice in assisting in the switching of this car. If we understand the evidence, the very purpose of the lever being placed on the end of the car is to render unnecessary the employee going between the cars or walking along by the cars in uncoupling them, thereby greatly lessening the risk of injury. If, as appellant insists, this defect was one of construction, then the coupling certainly was defective; if the chain was short because it had been made so by mending, then proper care had not been taken in that respect. From the very nature of this coupling appliance, if it be properly constructed, when the lever is raised the chain will be long enough to permit the lever being shoved onto or against this inclined plane, dog, hook or fastening in such a manner that it will be held up, so that the employee will not be compelled to walk along beside the car for that purpose.
It is not only the duty of the employer to furnish reasonably safe machinery for use, but also to use reasonable care in keeping such machinery in a safe condition. This court, in Armour v. Brazeau, 191 Ill. 117, in discussing the duty of employers to use ordinary care and diligence in furnishing employees with safe appliances with which to work, said (p. 125) : “There is a duty of the employer arising out of the liability of machinery or appliances to get out of order from time to time or to become unfit for use from wear or from age and decay, and this is the duty of inspection as meant by the law. While there is no absolute duty to keep appliances in safe condition, there is a duty to use reasonable care to keep them fit, and this duty may require inspection at reasonable intervals and the employment of such tests as will reveal the condition of the machinery or appliances. This duty of inspection rests upon the employer and not upon the employee, and depends upon the character of the machine or appliance, since ordinary care may require an inspection oftener in one case than in another.” The evidence shows that this car having a defective coupling was put into appellee’s train at Cypress that night, only a few miles from Tamms; that at Cypress appellant had a car inspector. The evidence also shows that it was not the duty of conductors to inspect cars and their appliances when they took on cars where inspectors were located.
We recognize the fact that railroad labor is full of danger to the employees, even with the exercise of the utmost skill and care; but this does not relieve the employer of the duty of using ordinary care and diligence in supplying and caring for its machinery.
The court cannot say as a matter of law, on this record, that appellee was familiar with the location of these semaphore wires or by ordinary prudence should have known of the danger resulting therefrom. As to whether the semaphore wires were properly constructed, guarded against and cared for, there was plainly a conflict of evidence. The weight to be given to the witnesses’ testimony on this subject, in the light of their experience and manner of testifying, is not for this court. All of these questions were properly submitted to the jury.
In view of what we have said heretofore on defective coupling appliances, it is unnecessary for us to discuss appellant’s contention that the third instruction given on this subject was improperly given. Clearly from this record there was evidence justifying the court in giving such instruction, and as the Appellate Court well says, if there had been any doubt on this question the error would have been cured by instruction 12 given at appellant’s request, covering substantially the same ground, and while it is true it is more general than appellee’s instruction 3, still it plainly implies that there is evidence in the record tending to show that the coupling appliance was defective.
It is further urged that the court committed error as to evidence and instructions as to the various causes of negligence charged in the declaration and attempted to be proved, especially touching the joining together or combining of negligence as to the semaphore wires and as .to the defective coupling appliances. If the injury resulted from the carelessness in constructing and protecting the semaphore wires or in constructing and caring for the coupling appliances, or both combined, then appellant is liable. We find no error in the record on this question. Chicago City Railway Co. v. Young, 62 Ill. 238; North Chicago Street Railroad Co. v. Dudgeon, 184 id. 477; Same v. Same, 83 Ill. App. 528; Kraut v. Railway Co. 160 Pa. St. 327; 1 Thompson on the Law of Negligence, secs. 69, 70.
Appellee’s testimony fairly tends to uphold his contentions as set forth in the declaration, and as we find no error of law justifying a reversal, under the decisions heretofore cited the' judgment of the Appellate Court upholding the verdict of the jury is binding on this court. That judgment will accordingly be affirmed.
Judgment affirmed.
