Chicago, Rock Island & Pacific Railway Co. v. Miller

Me. Justice Smith delivered the opinion of the court. One of the questions involved in the case is, was appellee at the time of the accident in the exercise of ordinary care for his own safety? The testimony of Peasley, the locomotive engineer who was in charge of the locomotive which struck appellee, is that he saw the gang working there before his locomotive went upon track seven, and saw them all clear of track seven. When he first saw appellee he was down spiking plank and that he got up and was clear of track seven, but he did not look around; that he gave two whistles to attract his attention, and appellee stepped over to the left just so that the bumper beam of the locomotive struck him and pushed him over. The train was going at that time between four and five miles per hour, Thomas Howe, who was working in the yard at that time, corroborates Peasley fully as to appellee’s action in stepping nearer track seven after the whistle blew. James F. Walsh, yardmaster of the Terminal Company, was standing twenty-five or thirty feet from appellee at the time he was struck. He testified that he saw the train on track six and when it crossed over to track seven, and heard the signals, and appellee was “standing on the east rail, well about to clear the east rail of number 7 track, between track 6 and track 7; he was not on the track. ’ ’ The witnesses all state that the train was moving at a speed between four and six miles per hour, and that •it came to a stop immediately, or nearly to a stop. The evidence tends to show that appellee’s back was toward the train while it was approaching. There is do controversy regarding the fact that the south end of the cross-over on which the train passed from track six to track seven was about two hundred feet south of the shed. It was therefore between the train and appellee when appellee saw the train approaching; and appellee could not know nor had he a right to assume that the train would continue on track six, for it might be transferred to track seven at the crossover by orders which he had no means of hearing or seeing except by observing the train. Instead of watching the train, he turned his back upon' it and gave no further attention to it. He went upon or near to track seven upon which the train could,. and for aught he knew, would be transferred, without taking the slightest precaution to observe whether he would be in the way of the train which he knew was approaching. He was at work in a place of danger. In working in such a place where 240 trains entered or departed each day, and every train had to be pulled in or out empty, making 480 train movements each day, he took upon himself the burden of looking out for trains. Ordinary care on his part, under such conditions, required a high degree of caution and watchfulness to avoid danger. Wilson v. Illinois Cent. R. Co., 210 Ill. 603. While there is a slight variation between appellee’s statement as to his position on track seven at the time of his injury, and the testimony of the other witnesses, all the witnesses agree that he went upon track seven and commenced to work there with his back to the approaching train There is therefore no dispute as to the essential facts. Appellee’s evidence is not eontradicted by the other evidence in the case as to any essential fact. It affirmatively appears from his evidence that having observed the approaching train when it was two blocks away, and given warning to his fellow laborers, he assumed that the train would come in on track six and paid no further attention to it. In so doing, we think, he failed to exercise ordinary care for his own safety. Belt Ry. Co. v. Skszypczak, 225 Ill. 242. It is urged that appellee was excused from using precaution to ascertain whether the train was approaching on track seven because of a practice or custom to use track six only for inbound trains and track seven for outbound trains. The court erroneously admitted evidence on the part of appellee of such custom upon the theory that it excused appellee for his failure to exercise the care necessary to ascertain on what track the train was entering the shed. Assuming that the evidence showed such a ^practice or custom, appellee was not entitled to rely upon it, under the circumstances disclosed by the evidence. L. S. & M. S. R. Co. v. Hart, 87 Ill. 529; Hoy v. Terminal Railroad Assn., 65 Ill. App. 349; Tomko v. Cent. R. Co., 37 N. Y. S. 144. We think, however, the evidence fails to show the practice or custom. The great weight of the evidence is against it. In our opinion appellee’s contributory negligence barred his recovery. It directly contributed to the injury of which he complains. The judgment is therefore reversed with a finding of fact. Reversed with finding of fact.