Chicago & Alton Railroad v. Eaton
62 N.E. 784
Ill.
1902
Check Treatment
Mr. Justice Hand

delivered the opinion of the court:

This is an action on the case, brought by the appellee, as administratrix, to recover damages by reason of the death of her intestate, Charles Eaton, alleged to have been caused by appellant in having a rail removed from its main track, between Atlanta and Lawndale, without giving him notice thereof as he approached it as engineer of a locomotive pulling a freight train composed of about sixty cars, some of which were loaded, whereby said engine was derailed. The jury returned a verdict in favor of the appellee for $5000, upon which the court rendered judgment, which judgment has been affirmed by the Appellate Court for the Third District, and a further appeal has been prosecuted to this court.

At the time of the injury the appellant had in force a rule requiring that when a rail is taken out a flagman or red flag must be stationed in each direction two thousand yards from that point and two torpedoes placed on the rail on the engineer’s side. If in the vicinity of a descending grade the distance must be doubled. The train upon which Eaton was engineer left Bloomington on the morning of October 16, 1900, going south. At that time the trackmen of appellant, consisting of two gangs, were working about a mile and one-half north of Lawndale, taking np and re-laying track, the section men being a short distance north of the steel gang. The steel gang had removed a rail. It is not claimed any torpedoes were laid, and there is a conflict in the evidence as to whether a flagman or red flag was stationed as required by the rule. The section men and steel gang, as the train approached around a curve coming down grade, gave signals to stop, but although the deceased made every effort to stop the train after receiving such signals he was unable to do so, and the engine ran into the gap where the rail had been taken out, and turned over, and Eaton was caught beneath the same and killed.

It is first assigned as error that the court declined to instruct the jury to find for the defendant. If there is evidence tending to establish a cause of action a peremptory instruction should be refused. (Chicago Edison Co. v. Moren, 185 Ill. 571.) A plaintiff is entitled to have his case considered by the jury if the evidence tends to prove ordinary care on his part and negligence on the part of the defendant. (Illinois Central Railroad Co. v. Sanders, 166 Ill. 270.) Whether appellant was guilty of negligence or the deceased of contributory negligence are questions of fact for the jury, and the adoption of the rule above referred to is an admission by appellant that ordinary care required the course of conduct prescribed therein, (Lake Shore and Michigan Southern Railway Co. v. Ward, 135 Ill. 511,) and the jury would have been justified in finding that if said rule had been obeyed the accident would not have happened. (Chicago, St. Paul and Kansas City Railway Co. v. Ryan, 165 Ill. 88.) The train dispatcher at Bloomington testified that just before the train left, on the morning of the accident, he gave to Eaton a bulletin which read, “Look out for steel gang between Lincoln and Atlanta.” No such bulletin was delivered to the conductor and none was found upon the body of Eaton, although his clothing was examined immediately after his death. But if it be conceded that he did receive the bulletin he had the right to rely upon appellant complying with its rule, and relying upon it he had the right to assume that a flagman or red flag would be stationed and torpedoes placed upon the rail at the place and in the manner therein provided, and that in the absence thereof he could safely proceed in the manner in which he did. (Chicago and Alton Railroad Co. v. Kelly, 182 Ill. 267.) The court did not err in declining to take the case from the jury.

The giving of appellee’s first instruction and the refusal of appellant’s third and seventh instructions are assigned as error, on the ground that the court thereby eliminated from the case the fellow-servant question. We do not think the court erred in eliminating that question, as the question of fellow-servant is not in the case. It was the duty of appellant to furnish the deceased a reasonably safe track upon which to operate his engine, and it could not delegate that duty. Neither could it delegate the duty of notifying the deceased that the rail had been removed, so as to absolve itself from liability for a failure to communicate such information to the deceased. (Pullman Palace Car Co. v. Laack, 143 Ill. 242; Peoria, Decatur and Evansville Railway Co. v. Rice, 144 id. 227.) In Drymala v. Thompson, 26 Minn. 40, a section foreman had taken up a rail in repairing a track and failed to put out a signal to warn approaching trains, whereby a train was thrown off and a brakeman injured. The court say (p. 42): “In the instance of a railroad, the track is one of the instrumentalities for the working of the road, and therefore something which it is the absolute and personal duty of the master to employ due care in maintaining and keeping in a condition suitable to the purposes for which it is to be used, — that is to say, in such condition that it can be safely used for such purposes. * * * When such master entrusts the performance of this duty to a servant or agent, such servant or agent occupies the place of the master as respects such performance, and the negligence of such servant or agent in performing the duty is the negligence of the master himself.”

The modification of appellant’s first, second and third instructions, by striking out the word “conduct” and inserting the word “negligence,” was proper, and the rev fusal of the court’to allow the appellant to re-call the witness Wilson for further cross-examination was a matter resting in the sound discretion of the court, and was not, in our judgment, abused. He had already been fully cross-examined upon the same subject matter when upon the stand before.

We find no reversible error in this record. The judgment of the Appellate Court will be affirmed.

Judgment affirmed.