239 Ill. 362 | Ill. | 1909
delivered the opinion of the court:
There is evidence in this record which indicates the following: Appellant, by a flying switch, propelled a cut of cars into the passageway between the buildings at a rate of twelve or fifteen miles per hour. It was then dusk and well nigh dark in that passageway. The cement mill was in operation, and its noise was such that the rumble of the approaching- cars could not be heard. There was no light on the cars. No warning was given, except that a man on the first car shouted when he saw that the car was apt to strike persons in the passageway, and it is not clear that the shouts were loud enough to be heard by any of those persons. Appellee did not hear them. There was no flagman or other employee of appellant in the passageway to give notice of the approach of the train. Persons were apt to pass and re-pass in that passageway at that hour, as appellant knew. This proof tends to show that appellant was guilty of the negligence charged by the declaration.
Appellee had been “baring” a freight car to the south,'—the direction from which the flying cars came,—on a track parallel to that over which those cars approached. When the car that he was so pushing reached the place at which he left it, he was a little north of the north-east corner thereof, with his face toward the car and to the south. The other track was to the east of him. He turned around to his left, which was to the east, and proceeded north between the two tracks. Just as he turned he glanced to the south, but not then being far enough east to see straight south past the car which he had been pushing, the farthest range of his vision to the south was on a line extending diagonally across the east track, five or six feet farther south, where it crossed that track, than the north end of that car. After he had started north he had taken but two or three steps when he was struck by that portion of the first of the cars moving north on the east track which projected west over the west rail of that track.
It is earnestly insisted that appellee knew the method followed in handling cars on those tracks and should have been expecting these cars to be moved into that passageway in the manner in which they were moved, and that, such being the case, ordinary care required the exercise of greater precautions than he made use of to ascertain whether a train was approaching when he turned and started to the north. As the switching was ordinarily done, when the work of the switch crew was completed there would have been loaded cars of coal standing on the east track opposite the space on the west track along which appellee helped to push the car, for the use of the furnace room in the engine house on the east, side of the tracks, and as appellee testified that before he started to assist in pushing the car he looked along the east track and could see nothing thereon, it is urged that he therefore should have expected the coming of the cars which inflicted the injury. Against this it is to be remembered that the appellee testified that he had never before known switching to be done in the yards at so late an hour. Under these' circumstances, if appellee had reasoned on the subject at all, when he looked along the east track before beginning the work of moving the car to the south he might well have thought that the switching had been abandoned for the day and the cars of coal for the furnace room had not been brought in, or that those cars had been pushed along the east track and left at a point on that track beyond its turn to the east, where he could not see them from his position in the passageway on account of intervening buildings.
It is said by appellant that the case of Belt Railway Co. v. Skszypczak, 225 Ill. 242, is in point. In that case Skszypczak was on the railroad track engaged in tightening and replacing bolts in the rails. He was facing to the south. The train that injured him came from the south. -He testified that he had not looked in that direction for ten minutes before he was struck. He was injured by a train that approached him from in front and he had not recently looked that way.. Riedel was injured by a car which approached him from behind and he had looked in that direction but a few moments before, although the range of his vision had been greatly limited by. the freight car which stood on the track that paralleled that upon which the cars approached him. Not perceiving the train coming from that direction, which was south, he turned, and was proceeding north, intent upon his work, when he was struck by the train coming from the south. We think the distinction obvious.
In the case at bar there was evidence which tended to prove that appellee was in the exercise of due care for his personal safety, and it cannot be said upon this record that the question of contributory negligence is one of law.
No question has been raised with reference to the character of the duty which appellant owed to appellee.
The judgment of the Appellate Court will be affirmed.
Judgment affirmed.