Lake Erie & Western Railroad v. Wilson

Mr. Justice Cartwright delivered the opinion of the court: Appellee brought this suit, as administratrix of the estate of her deceased husband, Art M. Wilson, against appellant, to recover damages for his death while in the employ of appellant, which occurred August 22, 1898, in the switch yards at Rankin, Illinois. Her declaration contained four counts, to the second and fourth of which demurrers were sustained and the case was tried on the first and third. The first count averred that said Art M. Wilson was a switchman in the employ of the defendant in said yards; that the defendant negligently failed to keep its switch track in reasonably safe repair, by permitting large quantities of grass and weeds to accumulate between the rails, rendering the track dangerous and unsafe, of which accumulation of grass and weeds defendant had, or by the exercise of ordinary care might have had, knowledge, and that while said Art M. Wilson was attempting- to couple cars, in the exercise of due care and caution for his own safety, he caught his foot in said grass and weeds and was unable to free himself before one of the cars which he was attempting to couple struck him, and crushed and mangled his leg" so that he afterward died from the injuries. The third count made the same averments as to'employment and injuries, and alleged that the defendant failed to properly ballast its switch track, by carelessly and negligently permitting a large hole to be and remain along the side of one of the ties, of which.hole the defendant knew or by the exercise of ordinary care might have known, and that said Art M. Wilson caught his heel on the part of said tie which projected above the surface and was run over. To these counts the defendant pleaded the general issue. There was a trial and the jury found the defendant guilty under the issues so joined, and judgment for $2000 was entered in pursuance of the verdict. The Appellate Court affirmed the judgment. At the close of the evidence for the plaintiff, and again after all the evidence was in, the defendant asked the court to give the jury an instruction to find it not guilty. The instruction was refused, and an assignment of error based upon the refusal raises the question whether there was any evidence fairly tending to prove the plaintiff’s cause of action, so as to require the submission of the issues to the jury. When the instruction was asked the following facts had been proved and were not controverted or in dispute: Art M. Wilson had been working for the defendant about six months as brakeman and switchman, and had worked in the switch yards at Rankin from midnight until six in the morning since June 29, 1898. About two o’clock in the morning of August 22, 1898, he was working as usual when a freight train drew in from the west on side-track No. 1. The switch engine took such cars from the east end of this train as were not to go farther east, and was putting in other cars and making up a train to go east. The east end of the east car left standing on the side-track had a Janney coupler, which would couple to a similar coupler without a link and pin or would couple with an ordinary draw-bar and coupler by means of a link and pin. The switch engine was pushing a number of cars toward the part of the train standing on the side-track, and the west end of the west car had a common or skeleton draw-bar which^ coupled with a link and pin. For the purpose of making the coupling a link and pin had been put in the Janney coupler, and as the moving cars were being pushed by the switch engine toward the standing car, and while still some distance therefrom, Wilson stepped on the track in front of the west end of the moving cars. The natural object in going there would be to put a pin in the draw-bar preparatory to coupling the cars afterward when they should come together. He was caught by the moving cars and dragged along about ninety feet, which was shown by blood on the track and the mark of a heel in the cinders and ballast. When the moving cars were stopped and he was removed they were still two or three car lengths from the standing portion of the train to which they were to be coupled. His left leg was badly mangled and he died shortly afterward. The matters of fact in dispute were as to the existence of the alleged hole where the car first struck Wilson, and the number, height and thickness of the weeds and grass between the rails. The evidence on the part of the plaintiff tended to prove that there was a hole or depression on the side of the tie at that place next the north rail, from three to four and a half inches deep, four or five inches wide and six or seven inches long,—large enough to admit the heel and part of the foot of Wilson,—and that the mark of dragging the heel started from that hole. The evidence for plaintiff also tehded to prove that there were a great many weeds between the rails, some of them eighteen inches high above the ballast, and that there were weeds in the latchets of Wilson’s shoe where he was dragged through them. The circumstances tending to prove a knowledge of such conditions on the part of the respective parties or to charge them with knowledge were before the jury, and it was not error for the court to refuse to withdraw the issue from the jury. Complaint is made that the court refused to allow defendant to prove that the side-track was ballasted in the usual and customary manner. There was no complaint of the general condition of the ballast, but plaintiff herself proved it to be level, with the exception of this hole. As the manner in which the track was ballasted was not in controversy, evidence that it was done in the usual and customary manner was not proper. The condition of the track was the subject of much conflicting testimony. The claim of the plaintiff was, that Wilson, when he went before the moving cars, stepped in the alleged hole and fell down, and the claim of the defendant was that he went in there with a pin, which was afterward found lying on the track, to put it in the draw-bar, and that he dropped the pin, stooped down to pick it up and was run over. The evidence on the part of the defendant tended to prove that there was no hole or defect in the track further than the print of a heel and instep of a shoe in the cinders next the tie where the beginning of the mark was, and that it continued from there just deep enough to show that something had been dragged along in the cinders and gravel. With reference to the weeds, there was no controversy as to the existence of some weeds between the rails. They were what are commonly called “rag weeds,” but there was a sharp conflict in the evidence as to whether they were many or few, and as to their size. The evidence for the defendant was that they were few and scattering, the tallest not over a foot high, and what few there were had been burned and whipped off by the switch engine. Both parties took photographs of the track soon after the accident and identified them at the trial. The plaintiff did not offer in evidence the photographs taken and identified on her behalf, but the defendant offered the photographs taken by it, together with the testimony of the person who took them that he was a photographer by occupation, that he had been engaged in that business for twenty years, that he was directed to make true likenesses of the tracks,—the truest he could,—and that the photographs were true representations of the premises shown in them. He also testified from what points they were taken, and two other witnesses testified that there had been no change whatever in the tracks, weeds, ballast or conditions after the accident up to the time the photographs were taken. The court excluded the photographs. Each party had caused the place to be examined by witnesses and their testimony was conflicting. The trial was the next year after the accident, when the weeds were gone and the condition changed, and the question is whether, under those circumstances, the defendant was entitled to the benefit of photographs as evidence. The general rule is, that photographs stand on the same footing as a diagram, map, plan or model, and that a photograph is a legitimate mode of proving a condition which can be shown by a representation of that sort. It rests, to some extent, upon the credit of witnesses, in the same way as a map, plat or plan; but that fact furnishes no reason for excluding it as evidence, (1 Greenleaf on Evidence,—16th ed.—546.) Each party has the same opportunity to offer evidence as to whether 'the picture correctly represents the appearances. The preliminary proof of the correctness of the picture, the ability of the operator and the accuracy of the instrument is addressed to the court, and it is not error to exclude photographs taken a long timé after an accident, where the situation has been changed and the operator is shown to be inexperienced. (Cleveland, Cincinnati, Chicago and St. Louis Railway Co. v. Monaghan, 140 Ill. 474.) In this case the preliminary proof 'was full and complete, and the photographs are in the record and show a perfectly natural representation of railroad tracks and surroundings. There was nothing in the evidence nor in the photographs themselves tending to discredit their accuracy. Under such conditions, photographs of things which can not be produced in court as evidence are generally admissible in evidence, the same as a map or plan. (11 Am. & Eng. Ency. of Law,—2d ed.—539, and cases there cited.) In Commonwealth v. Morgan, 159 Mass. 375, it was held proper to admit in evidence a photograph of defendant for the purpose of showing that wthen it was taken he wore side-whiskers. In Alberti v. New York, etc. Railroad Co. 118 N. Y. 76, it was held proper to receive in evidence a photograph of plaintiff’s limbs, and in Duffin v. People, 107 Ill. 113, a photographic copy of a note which had faded out was admitted in evidence. In this case the photographs were an important means of proving the condition of the track, and, under the circumstances, we think the defendant had a right to have the jury see them in connection with the other evidence, and it was error to exclude them. The first instruction given at the request of the plaintiff, after correctly stating the duty of the defendant to use reasonable and ordinary care to provide a suitable and safe place for its servants to work, directed the jury to find the defendant guilty if they found, from the evidence, certain facts stated in the instruction. The hypothesis of fact so stated, from which the court drew the legal conclusions of guilt and ordered a verdict, is as follows: (1) That Art M. Wilson was employed as a switch-man by the defendant in the yards at Rankin; (2) that the defendant carelessly and negligently permitted a hole to be and remain upon the side-track in the premises in question; (3) that the same was dangerous to switchmen; (4) that the defendant had knowledge of the existence of said hole or by the exercise of ordinary care might have known it; (5) that while Art M. Wilson was in the usual course of his employment and in the exercise of due care and caution for his own safety, he, by reason of the said hole, caught his foot on a tie in the track and fell down and was run over bj^ the defendant’s car and afterward died of such injury. The fourth instruction given at the instance of plaintiff also ordered a verdict in her favor upon proof of certain facts. These facts were: (1) That Art M. Wilson was employed as switchman; (2) that defendant carelessly and negligently permitted the track between the rails to be grown up with grass and weeds; (3) that such grass and weeds were dangerous; (4) that Art M. Wilson, while in the usual course of his employment and while exercising due care and caution for his own safety, by reason of said grass and weeds caught his foot in the grass and weeds and was unable to free himself before the car struck and injured him, and died from such injury. It was the duty of the defendant to exercise ordinary care to provide a reasonably safe switch track as a working place for Wilson and to exercise ordinary care to keep the track in a reasonably safe condition. At the same time, Wilson was held to assume the risks from defects which were known to him, where, as in this case, there had been no promise to repair the defect. If defects are obvious and open to the observation of every person of ordinary intelligence, and the evidence shows that the employee has had full opportunities for such observation, it is sufficient to charge him with knowledge. (3 Elliott on Railroads, sec. 1312.) The duty and liability are the same with regard to the place of work and the appliances with which the work is done, and the rule is that the servant, in order to recover, must establish three propositions: First, the existence of the defect; second, that the master had notice thereof or in the exercise of ordinary care would have had knowledge of it; and third, that the servant did not know of the defect and had not equal means of knowing with the master. (Goldie v. Werner, 151 Ill. 551; Howe v. Medaris, 183 id. 288.) It is manifest that any instruction by which the court assumes, as a matter of law, to direct a verdict, must embrace these propositions, and neither of these instructions embraced the third. It is true that they require Wilson to have been in the exercise of ordinary care; but the rule prohibiting a recovery for a defect known to him which the defendant had not promised to remove does not rest upon the ground of contributory negligence on his part, but upon his contract under which he entered the service of defendant. In such a case it is not a question of negligence on the part of the servant, but of the risk assumed by him. (3 Elliott on Railroads, sec. 1311.) There was no complaint of the original construction of the side-track in this case or of the manner of such construction. One witness for plaintiff said that it looked like the hole had been there some days, and that aside from this hole the track was level. Another said ,that it had the appearance of having been there several days, but he could not tell how long. Another, that it looked as though they had scraped dirt off, and part of it was fresh where they threw the gravel off, and that part of the hole looked as though'it was new and had been disturbed. The tendency of the evidence was, that if there was a hole there it was not made in the original construction but had been made recently. The question how long it bad been there and what knowledge the parties had of it was important. It is true, as contended by counsel, that if Wilson knew of the defect he must have known that it was dangerous. (Chicago and Eastern Illinois Railroad Co. v. Knapp, 176 Ill. 127.) But where the danger is obvious to a person of ordinary intelligence the law will charge him with knowledge of it. Where a person is old enough to comprehend a danger, and is familiar with the place and the location, his duty to exercise ordinary prudence and care would charge him with notice of it. In this case, plaintiff was bound to prove that the defendant had, or ought to have had, knowledge of the alleged condition, and that Wilson did not have, and did not have equal means of such knowledge. The instructions were wrong in directing a verdict without proof of the omitted fact. The judgments of the circuit court and Appellate Court are reversed and the cause is remanded to the circuit court. _ 7 , 7 7 Reversed and remanded.