166 Ill. 270 | Ill. | 1897
delivered the opinion of the court:
It is first claimed in the argument that the Appellate Court erred in failing to give the reasons of the court for the opinion affirming the judgment of the circuit court. In affirming the judgment the Appellate Court filed an opinion purporting to show the grounds upon which the judgment of the court was predicated.
The main objection to the opinion is, that it fails to discuss the facts. We shall not stop to discuss the question whether error can be predicated on the fact that an opinion of the Appellate Court may contain too much or too little, or whether it may be too long or too short. It is sufficient in this case to say, when the case was first before the Appellate Court the facts were fully discussed, (see Illinois Central Railroad Co. v. Sanders, 58 Ill. App. 117,) and as the facts were substantially the same on the second appeal, no necessity existed for a repetition of the discussion found in the first opinion.
The principal ground relied upon by appellant to reverse the judgment is the refusal of the circuit court to instruct the jury to find for the defendant. This is predicated on the assumed position that there was no evidence tending to prove the exercise of ordinary care on behalf of appellee, and no evidence tending to prove culpable negligence on behalf of the railroad company. If there was no evidence whatever tending to prove that the plaintiff was in the exercise of due care at the time he was injured, it is well settled by numerous decisions of this and other courts that he could not recover. Indeed, in a case of this character the exercise of ordinary care is indispensable to a recovery. So, also, if there was no evidence whatever tending to prove negligence on behalf of the defendant the plaintiff could not recover. It will be remembered that the car where the coupling was to be made was left standing over an old cattle-guard, and there was evidence tending to prove that the ties south of the cattle-guard over which appellee was required to pass in making the coupling, were above the surface of the ground, and the spaces underneath and between the ties were not filled with earth or other substance, so that a person could pass over them without stumbling or getting his foot fastened. In other words, the track where the coupling was required to be made was not smooth or level, but dangerous; and the evidence tends to prove that when appellee stepped between the two cars and attempted to make the coupling his left foot went down between two ties and was caught underneath them, where the dirt had been removed, and when he stepped forward with his right foot to keep from falling, his right foot did not strike a level footing, but went into the cattle-guard.
The law does not require a railroad company to furnish machinery, tracks and switches for their employees which are of the best character or that are absolutely safe, but the duty imposed is to use reasonable and ordinary care and diligence in providing safe machinery, tracks and switches for the use of those engaged in its service. (Chicago, Rock Island and Pacific Railroad Co. v. Lonergan, 118 Ill. 41.) But this rule, as the evidence tends to show, was not observed. The evidence seems to show that, as a general rule, railroad companies, at stations within switching limits, have their tracks filled up to the level of the ties, so that brakemen may walk over the ties in coupling cars without stumbling or falling. If this precaution had been observed it is apparent appellee’s foot, in attempting to couple the cars in question, would not have been caught under the ties, and he would not have stepped into the cattle-guard and received the injury.
But it is said, conceding appellant permitted certain ties to remain above the ground and neglected to have the spaces underneath and between the ties filled with a proper substance, and neglected to have the cattle-guard properly covered with a suitable passage, yet as these defects were not concealed, and appellee saw them or might have seen them, and having notice, he voluntarily took the risk arising out of the danger. If the plaintiff knew, or by the exercise of ordinary diligence might have known, that the track and the cattle-guard were dangerous, and knowing these facts attempted to make the coupling and was injured, he ought not to recover. But the jolaintiff testified, and in this he is not contradicted, that he had no knowledge whatever that the track where the coupling was attempted was out of repair. The law required the railroad company to furnish a reasonably safe track inside the switching limits where switching was required to be done, and the plaintiff, in the absence of knowledge to the contrary, had the right to presume that the railroad company had discharged its duty in this regard. It is true that the plaintiff had been on this run for three weeks before the accident, and had passed over the track twice every day during that time; but in making a round trip of one hundred miles, and doing all the switching required in ten or twelve switch yards, besides handling all the local freight, as was done by the crew of the train with which plaintiff was connected, it is unreasonable to suppose that the. plaintiff would in so short a time become familiar with the condition of the track where switching was required to be done along the entire line from Oentralia to Effing-ham. The ruling in Chicago and Alton Railroad Co. v. Johnson, 116 Ill. 206, that the law does not require a brakeman upon a freight train absolutely to know all the defects of construction which may exist along the line of the railroad is applicable here.
But it- is said, the defective track and cattle-guard were in plain view, and might have been seen by the plaintiff if he had looked. The coupling of cars is a dangerous service. The work has to be done instantly when the cars come together. A slight mis-step or a false movement on the part of the brakeman may expose his life or limbs to danger. Hence it is apparent that when a brakeman undertakes to make a coupling he has no time to investigate the track and determine whether it is defective or safe. His whole attention is directed to the cars that are coming together and the dangerous act he is required to perform, and it cannot be expected that he will stop in the performance of his duty to examine the condition of the track. What was said in Chicago and Eastern Illinois Railroad Co. v. Hines, 132 Ill. 161, applies here. It is there said (p. 169): “The burden of furnishing safe machinery, appliances, surroundings, etc., is upon the master, and while the master is not to be held liable for defects and dangers of which the servant is fully informed, yet the servant is authorized to rely upon the acts of the master in that respect, and is under no primary obligation to investigate and test the fitness and safety of the machinery, surroundings, etc., in the absence of notice that there is something wrong in that respect. (Shearman & Redfield on Negligence,—2d ed.—sec. 95; Bishop’s Non-Contract Law, sec. 678; Porter v. Hannibal and St. Joseph Railroad Co. 60 Mo. 16.) And, necessarily, much more is the servant entitled to assume that his master has furnished him with suitable and safe materials, machinery and surroundings, and relieved him of investigation and inquiry in this regard, where * * * the performance of his duties requires constancy of attention to other matters. A man whose attention is constantly directed- to moving cars, and their coupling and uncoupling, cannot possibly give much attention to the ties, switch-bars, etc., over which he may from time to time fiave to pass.” Here, when the coupling was attempted, plaintiff was between two trains. His whole attention was directed to the coupling of the train. He saw no defect in the track, and the cattle-guard was not in plain view from his position. The white wing-fence which came up to it on the west side had been torn away and the east wing-fence could not be seen. Under such circumstances plaintiff could not be chargeable with notice of the defective condition of the track.
Under the facts as they appear in the record we are of opinion that the court did not err in refusing to instruct the jury to find for defendant.
It is claimed that the court erred in refusing instruction No. 7, as follows:
“The court further instructs the jury, that for the protection of live stock that all railroads were by law required to fence their road by good and sufficient fence along both sides of their right of way, and to erect cattle-guards at highway crossings and other places to prevent live stock from getting upon their road and right of way, and the defendant had a lawful right to erect all cattle-guards necessary to so protect live stock and prevent stock trespassing on the road and right of way.”
It is a familiar rule that instructions should be predicated on the evidence in the case, and we are also of the opinion that they should be confined to the issues in the case. Here there was no question between the parties in regard to the right or duty of the appellant, or any other railroad company, to erect cattle-guards, and as there was no question .of that character involved, the court properly refused to instruct the jury in a matter foreign to the issue submitted.
The judgment of the Appellate Court will be affirmed.
Judgment affirmed.
