Belt Railway Co. v. Confrey

Me. Justice Ball delivered the opinion of the court. Appellant claims that evidence relating to the grab-iron was a variance from the declaration. The additional counts allege that the “ draw-bar and appliances and devices necessary and used for and in aid of coupling (on this car) were in a dangerous, defective and unsafe condition,” and that by reason of the divergence of the draw-bar and by reason of the negligence of the defendants in permitting said car to be and remain in said defective condition, appellee was injured. This allegation is broad enough to let in evidence describing the grab-iron and its use, if any, in coupling cars. It was the duty of appellant to use reasonable care in the inspection of the cars coming into its yard to discover and mark defects therein which might endanger the lives or limbs of its employees. It was also its duty to handle all cars delivered to it which appear to be in ordinarily safe and proper condition; and its employees took upon themselves the risk of working with and about such cars. Appellant is not responsible for latent defects which cannot be discovered by the exercise of reasonable care in inspection, (Sack v. Dolese, 137 Ill. 129; Colfax Co. v. Johnson, 52 Ill. App. 383; I. C. Ry. Co. v. Barslow, 55 Ill. App. 203,) but is liable for all damages coming to its employees from defects which would be disclosed by a reasonable and careful inspection. There is much conflict in the evidence as to the amount of lateral play of the draw-bar upon the stationary car; and as to whether or not it was in the same condition 'on the day of the accident as when originally constructed; and as to whether or not the defect, if any, was dangerous, and discoverable by appellant by the use of reasonable care. Each of these propositions was a fact to be determined by the jury upon the evidence. The second contention of counsel is that the court erred in refusing peremptorily to instruct the jury to find for the defendant, because the plaintiff was relying for a recovery on the absence of the grab-iron, which had not been charged in the declaration; and, also, because the evidence wholly fails to show that plaintiff’s injuries were due to any breach of duty by the defendant. The first ground is answered by what has been said concerning the additional counts of the declaration. As to the second ground, appellant tendered to the court and the court gave to the jury instructions concerning its duty as to reasonable care in the premises, and as to the duty of appellee to use due care for his personal safety. As we read the case of Chicago Terminal Ry. Co. v. Schmelling, 197 Ill. 625, the appellant, by such instructions, is estopped from urging this action of the court as constituting reversible error. The Supreme Court there say: “ Inasmuch as the plaintiff in error asked and the court gave, an instruction which left it to the jury to take into consideration the fact, if it was a fact, that the defendant in error alighted from the train while it was In motion, in determining whether he was in the exercise of due care and caution for his own safety, it cannot be urged now and here by the plaintiff in error, that such fact was negligence per se, or negligence as matter of law.” In this connection counsel for appellant claim that it was the appellee’s own want of care in making the coupling which caused his injuries, in this, that he did not s’ee the lack of a grab-iron until after he had “ grabbed for it,” although he approached and passed right by the place where it should have been. Among the cases cited in support of this proposition is that of C. I. & L. Ry. Co. v. Barr, 204 Ill. 163. There the deceased, a switchman, attempted to climb up the rear of the tender of a moving engine in order to put a flag in a box standing on the top of the tender. There was no ladder or other safe means provided for climbing up the rear of the tender. No immediate necessity required the deposit of the flag in the box. The deceased saw the whole situation, and yet made the attempt to scale the rear of the tender while it was in motion; and thus, through his own negligence, lost his life. The Supreme Court held that the evidence did not tend to prove a cause of action, and therefore the trial court erred in denying the motion to take the case from the jury, and in refusing to give the instruction tendered with it. We do not think the case is like the one at bar. Here appellee, when he came to track Ho. 2, found six cars approaching the stationary car. It was his duty to make three couplings before they came together. Two of these couplings took so much time, although the north-bound cars were coming slowly, that he had just time and opportunity, as he claims, to go between them and the stationary car at the moment they came together. In the Barr case the deceased was not hurried. He was riding upon the footboard of the tender. He saw the condition of the back of the tender and the meager and insufficient aids it afforded him. To us the case of I. C. Ry. Co. v. Sanders, 166 Ill. 270, is more nearly in point. There the plaintiff was injured by slipping and falling while attempting to couple two cars. It was urged that he was negligent. The Supreme Court answer this argument by saying; “ But it is said that the defective track and cattle-guard were in plain view, and might have been seen by the plaintiff had he looked. The coupling of cars is a dangerous service. The work has to be done instantly when the cars come together. A slight misstep or a false movement upon 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 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.” The third contention of appellant is that the trial court erred in the givingand the refusing, and in the modification of instructions. Without extended argument counsel objects to each of the instructions tendered by appellee and given by the court to the jury. We find that the first is approved in Taylor v. Felsing, 164 Ill. 332; the second in C. M. & St. P. Ry. Co. v. O’Sullivan, 143 Ill. 51; the third is approved in substance, in W. Chicago Ry. Co. v. Lieserowitz, 197 Ill. 611; the fourth in Eastman v. W. Chicago St. Ry. Co., 79 Ill. App. 586; the fifth in FT. Chi. St. Ry. Co. v. Fitzgibbons, 180 Ill. 469; the sixth in N. Chi. St. Ry. Co. v. Kaspers, 186 Ill. 250; the seventh in I. C. Ry. Co. v. Cole, 165 Ill. 337; and the eighth in C. B. & Q. Ry. Co. v. Warner, 108 Ill. 545. The instructions given upon the request of appellant state fully what appellee was bound to prove in order to recover, and set forth clearly what the issues were in the case. We have carefully examined the modifications of the instructions presented by,,appellant and given as modified to the jury. In none of them is reversible error. Flor did the court err in the refusal of appellant’s tendered instructions numbers 1, 2, 3, 4 and 17. The fourth contention of appellant is that the court made improper remarks during the trial, which tended to prejudice its case with the jury. We have examined the several instances cited by counsel, and find but one which violates the rules of legal propriety. The witness Lovejoy upon cross-examination had stated: “ The grab-iron is not any part of the coupling appliance by which the cars are physically fastened together, no more than the ladder or the brake on the car; ” when the court interrupted with, “ I think anybody can see that. These twelve men can see that as well as anybody. It is a part of the general appliances.” This is plainly a comment upon the evidence pertaining to a disputed question in the case. By it the court minimizes the evidence of the witness, and tells the jury that the grab-iron is a part of the general appliances used in coupling cars. In so speaking the court erred; but whether these remarks were proper or improper is a question that cannot be raised here, because they were neither objected nor excepted to at the trial. Lanquist v. City of Chicago, 200 Ill. 71. The fifth contention of appellant is that the evidence does not support the verdict. Without discussing the testimony in detail, we content ourselves by saying that we have studied this record long and carefully, and have come to the conclusion that there is sufficient evidence, if believed by the jury, to sustain this verdict and judgment. The judgment of the Superior Court will be and is affirmed. Affirmed.