Chicago & N. W. Ry. Co. v. Delaney

Mr. Justice Lacey delivered the opinion of the Court. This was a suit by appellee against appellant for damages received by being injured so as to lose a leg'while he was acting as foreman of a switching crew at Spring Valley, Illinois. The main charge of negligence was that cars filled with coal were switched in on the side track at appellant’s yards, and in so doing, from about two to four o’clock p. m., November 14, 1893, the draw-bar was broken off one of the cars and laid upon the track, when, about nine o’clock at night, appellee, in switching the cars on the main track, while riding on the foot-board of the pilot, was injured by the foot-board being turned under the pilot and appellee’s leg injured so that he was compelled to have it amputated. The verdict in the case was for $12,500, and the point having been raised in this court by the appellant that the damages were excessive, and this court holding that such was the case, required a remittitur by appellee of $6,500, and on the 30th day of June, 1896, appellee, by his attorney, came into court and filed a remittitur in writing and offered to remit the sum required from the judgment. Having done this, the question of excess of damages is eliminated from the case, as this court is of the opinion that if appellee is entitled to recover at all, the sum of $6,000 would not be excessive. We will, then, proceed to the consideration of the case. The declaration consists of' two counts; the first alleges that the defendant was engaged in operating a railroad consisting of tracks, and particularly track No. 3, leading into and connecting with coal shaft No. 1 in Spring Valley; that appellant carelessly permitted track No. 3 to be obstructed by a large and weighty iron object known as a draw-bar, of which obstruction the plaintiff had no knowledge, and while he was in the employment of the defendant as night switch-man, and in the performance of his duties, and standing upon the foot-board of the pilot of the engine, and proceeding along track No. 3 in the exercise of all due care and caution, said foot-board came in contact with the said draw-bar and the left foot of the plaintiff was caught and wounded and shortly thereafter amputated. The second count charges negligence upon the part of the appellant in placing upon the said locomotive and pilot a foot-board that extended too close to the rails to be reasonably safe, and that that was the cause of the injury. Appellant filed a plea of the general issue. The yards at Spring Yalley are known as Nos. 1 and 2, and in this case are designated as Shaft No. 1 and Shaft No. 2. Several tracks are in yard No. !;• among them Nos. 1, 2, 3 and 4. The evidence tends to show that both these yards were clean of all scraps of iron or other obstruction on the 14th of November, 1893, it being the evening of that day when the plaintiff was hurt. Track No. 3 in yard No. 1 was cleaned between eleven and twelve o’clock in the forenoon of that day. Track No. 3 was again inspected by the foreman in the afternoon, but whether before or after the draw-bar in question fell upon the track does not appear. The sun set at 4:40 o’clock on that day, and it was dark at 6 o’clock. George B. Draper was the yard master or switchman and employed appellee and the day and night crews. The evidence tends further to show that from about two to four o’clock in the afternoon of that day, that car No. 8866, loaded with lump coal, was taken from track No. 1 and put upon track No. 3 about eleven o’clock in the forenoon of that date. In doing so, the evidence tends to show, the draw-bar of the said last mentioned car was broken off and left deposited upon said track No. 3. It was a piece of iron about eighteen inches long, ten inches wide and six or eight inches thick. About 8:30 o’clock in the evening of that date the plaintiff and his crew proceeded along track No. 3 with engine No. 282 to remove some cars from it and put them in a train they were then forming. Appellee and two of his men were standing on the foot-board when the pilot came in contact with a piece of draw-bar that was lying upon the track between the rails and his foot was caught and injured as above stated. It is insisted that the verdict is against the weight of the evidence and that the court erred in refusing the defendant’s 5th, 12th, 13th, 23d and 2!th instructions and in modifying defendant’s 8th and 9th instructions. Also that the court erred in refusing at the close of the testimony to exclude the evidence and to instruct the jury to find the defendant not guilty. ¡Negligence and reasonable ©are are relative quantities. Where the danger is very great, reasonable care requires closer watchfulness than it would in a case where the danger is only slight, and the circumstances of the injury in this case, and the cause of it, were all before the jury. . The jury had a right to consider the extent of the danger to a person in the condition of appellee, riding on a foot-board constructed as this was, only six or eight inches elevated above the track, with reference to an iron, like the draw-bar in this case, lying upon the track, and to determine what reasonable care required of appellant to keep such an obstruction off the track. And we are unable to say that the jury erred in deciding that appellant failed to exercise such care. The evidence tended to show that this obstruction was lying on the track from two to four o’clock that day, also that it must have taken some violent bumping to have broken the draw-bar in the manner it was broken, and we think it would be reasonable to hold the appellant guilty of negligence in not discovering the fact that the draw-bar was broken at the time of the jar, or in not discovering that it was on the track between 2 o’clock and 8: 30 p. m. There was evidence tending to show that Draper ivas vice-principal of appellee and not fellow-servant; also to show that appellant failed tocperform its duty to keep the track clear and to supply proper appliances for the safety of its employes. The question of whether appellee was injured on account of negligence of a fellow-servant is a question of fact for the jury. Pullman Palace Car Co. v. William LaacK, 143 Ill. 242; Sutherland v. North Pacific Railway Co., 43rd Fed. R. 646; U. S. Cir. Ct. for Minn.; Bessex v. C. & N. W. Ry. Co., 45 Wis. 477; Lewis v. St. L. & Q. M. R. R. Co., 59 Mo. 495. It is therefore the duty of a railway company to furnish proper appliances and a safe road bed without reference to the question of fellow-servants, as will be seen by the above authorities and many others that might be quoted. In regard to the refusal and giving of instructions, and modifying instructions, we have only to say that we think the jury was fully and amply instructed on the part of the appellant in the fifteen instructions given on its part out of the twenty-five asked; the four modified instructions, as given, were not a part of the fifteen and, as we think, not modified to the injury of appellant, but properly modified. We also think that after the remittitur the damages in the case are not excessive. The remittitur of $6,500 offered by appellee from the judgment is accepted and allowed by this court, and the judgment of the court below affirmed for the sum of $6,000. It is further ordered that appellee pay the costs of this appeal.