Joliet, Aurora & Northern Railway Co. v. Velie

Lacey, J. The only points which the appellant insists upon as error, are, first, the court overruled its motion to take the case from the jury, and, second, in overruling the motion for a new trial on the ground that the verdict was contrary to the evidence and not supported thereby. It is not seriously contended that appellee was not in the exercise of ordinary care at the time of the injury, but it is insisted that he entered and continued in the service of the appellant after knowing all the defects in the appliances and machinery and dangers in the requirements of the service which he engaged to perform and therefore took the risk of all accidents and injuries arising to himself on account of any siich known defects. And it is contended that by reasonable care and diligence he might have been informed of such defects and dangers and is, therefore, held to notice. This is undoubtedly the law and should be kept in mind in determining the right of the jury to return a verdict against the appellant, although no strictly legal question is raised by any instruction. See Penn. Co. v. Lynch, 90 Ill. 333. It is contended by appellee’s counsel that a case should not be taken from the jury where there is any evidence tending to establish the allegations of the declaration. This is no doubt the law, provided the court can say that the evidence reasonably authorizes the jury to find the issues in the direction in which the proof tends. If the trial court would feel bound to set aside the verdict then the proof is not sufficient. Simmons v. C. & T. R. R. Co., 110 Ill. 340. It is no doubt the duty of a brakeman and others having charge of a train to inspect it and see that the cars are in good running order and everything in repair to the same extent that it is the duty of the company so to do. C. & A. R. R. Co. v. Bragonier, 119 Ill. 51; C., B. & Q. R. R. Co. v. Warner, 123 Ill. 38; Same v. Same, 108 Ill. 538. It is the rule of law also, that “it is primarily the duty of the company to provide good, safe and proper machinery so far as skill and diligence can construct it; but when that duty has been once performed it is a duty devolving on the servants operating it to observe that it is in safe repair,” etc. C. & A. R. R. Co. v. Bragonier, supra. The above, we think, is a reasonable statement of the law, which must be considered in determining whether the evidence reasonably supports the verdict after allowing the jury every intendment in its favor. We will now consider the evidence as bearing upon the point we regard as the vital one. In the first place, we will premise by saying that we can not regard the failure of appellant to furnish other brakemen as the cause of the injury. That fact may have been the cause of the appellee being compelled to do braking at all, but the fact that he did the coupling and braking did not reasonably imply injury, no more than would the fact that appellee was in the appellant’s employment. It may have been the cause of the cause, but in law can not stand for the cause of the injury. The fact that there was no step on the left hand side of the pilot can not be allowed to assist plaintiff to recover. For, first, that did not appear to be the cause of the accident, and, secondly, if it had anything to do with it, it was as well known to the appellee as anything could be, for he had run the engine for several months. We are well satisfied that the evidence justified the jury in finding that the hand-rail being out of repair and mashed in was the cause of the injury. We also are of the opinion that the jury were justified in finding from the evidence that such an appliance, kept in good order, was reasonably necessary in order to prevent injury to thogp operating the train, and that it was usual to attach them to cars and that the appellant was negligent in not having the hand-rail in good repair. We can not see, either, why this defect might not be considered by the jury in the light of a defect, the same as though the car had been made by the appellant without any hand-rail or with one improperly constructed; for it appears that the car came into appellant’s hands in the shape it was, or, at least, the evidence so tends to prove, and it would be the same as though purchased for its own me. At any rate, the jury were justified in holding it was negligent in not giving the car the necessary inspection, and in not repairing it. As to appellee having notice or being held to notice, we will observe that he had no notice of the defect and had no notice that appellant had no inspector of cars, but thought it had. We do not think the appellee can be said to have been in service of the appellant with knowledge that it was receiving cars in bad repair and dangerous to life and limb. The C. & A. R. R. Co. acted for" appellant in receiving the cars at Joliet and making up the train, and we think the jury might find from the evidence that it had the duty of inspection as well. When the cars were hauled by appellee to Joliet, the train being made up, it was not necessary to examine the cars to find whether the handrails were all right. All he had to do was to couple on his engine and haul them to Aurora and there leave them, and when, afterward, he took them back again, he had no occasion to examine them till lie reached Plainfield. Besides, when he started from Aurora he had the baggage to look after, and other duties of the conductor, and it may be that the brakeman coupled the cars. The jury had a right to take all the circumstances and the position of appellee into account in determining whether he was so negligent in his duties as that lie should be held to knowledge of the defective hand-rail. It does not follow, as a conclusive fact, that appellee should be held to notice of the defective hand-rail because the car was in his charge, though there are some strong expressions in the opinion in C. & A. R. R. Co. v. Bragonier, supra, that might lead one so to suppose. We do not think that the court there so held. It was treating of certain instructions held to be erroneous. And it is quite clear that it was not so intended when C., B. & Q. R. R. Co. v. Warner, supra, is considered, for in that case Warner was conductor of a freight train, a part of his duties being coupling and uncoupling, and, though his injury was caused by reason of the want of a hand-rail on one of the cars in his train, the jury returned a verdict in his favor, and it was upheld by the Appellate and Supreme Courts. This could not have been if the mere fact of his having charge of the train held him to notice of the want of the handrail. The jury must have found, under the circumstances, that he was not negligent in not discovering the defective hand-rail, for this was submitted by instructions and was necessarily involved. In this case we think the jury had far better reason for finding their verdict, acquitting appellee of negligence, than in the other. All the questions of fact have been submitted to the jury and we fail to find, after a careful review of the evidence and full consideration of the arguments, that it was not justified, or that the court erred in not taking the case from the jury on appellant’s motion. We have also considered the objection that the verdict is excessive and are compelled to also hold that point against appellant. While it appears on the one side quite a hardship on appellant’s part to be compelled to pay so large a sum for what its counsel appears to consider a trifling fault, yet when we consider the hopeless and forlorn condition of appellee, his hardship seems much greater. It only illustrates how great calamities result from trifling causes. Hundreds may be killed on account of the omission of watchfulness and care, and we see no better way than to hold the guilty party responsible for its lack of duty. The appellant’s road was no doubt weak and poor, as it appears to have been run on too economical a principle^for safety to its employes and to the public. The loss, where the employes are not in fault, should fall on the party in fault. We can hot think that the amount is more than just compensation. Appellee was a man in the prime of life, only about forty-live years old, capable and efficient in his occupation, and could command a good salary. He had been employed not long before for $100 per month and appeared to have bright prospects before him. Then, if he is to be allowed compensation for any pain and suffering, which the evidence shows was intense and of long duration, we can not see wherein he has been over-compensated. Seeing no error, the judgment of the court below is affirmed. Judgment affirmed.