Chicago Terminal Transfer Railroad v. Berkowitz

Mr. Presiding Justice Freeman delivered the opinion of the court. It is insisted in behalf of appellant that it was not guilty of negligence in the operation of its railroad, causing the injury complained of; that a railroad company is not an insurer of the safety of its passengers, and that unless the accident might reasonably have been foreseen by a competent and experienced man accustomed to the management of locomotive engines and the construction and management of tracks of a railway, and exercising extraordinary care and prudence, appellant cannot be deemed liable; citing Davis v. C., M. & St. P. Ry. Co., 67 N. W. Rep. 16 and 1132. In this contention we are obliged to concur, in view of what the evidence, as we think, clearly shows to have been the direct and proximate cause of the accident. There can be no room for reasonable doubt, notwithstanding his denial, that the “call boy” whose duty it was to fill the oil cans on the engine, must have undertaken to experiment with the levers when he entered the engine cab with the cans of oil which he had, as he states, refilled. The evidence is too overwhelming to be questioned that the levers of the engine when left by the engineer were so arranged as to cut off the motive power and render it impossible for the engine to start without human interference. Aside from thé undisputed evidence to this effect, is the fact that the engine had remained stationary for more than half an hour before, with the “call boy” in the cab, it started on its career of destruction. Indeed appellee’s attorney concedes in his brief that “the circumstances tend to show that he (the call boy) meddled with this engine.” It is contended, however, in behalf of appellee that appellant was guilty of negligence,first, “in leaving an engine charged with from 80 to 100 pounds of steam in the possession of a dull minded boy nineteen years of age.” Our attention is not called to, nor do we discover, any evidence tending to show that this employe who apparently caused the accident by his meddling with what he had no right to interfere with, was not competent for the work for which he was employed. His sole duty in connection with the engine was to take the oil cans, fill and return them. There is nothing in the testimony of this young man to indicate that he was in any way dull minded. How long he had been doing the work he was employed for does not appear, but evidently long enough to have become entirely familiar with his duties and accustomed to their performance. The evidence is not disputed that it was customary to leave an engine with steam up when it was to be used by the night crew shortly after, as it was the intention this should be. Moreover, the engine was not, according to-the evidence, left “in the possession of” the call boy. It appears from the testimony of the “hostler” at the roundhouse that he had received instructions to get engine 18 ready and was approaching it, when at the door of the roundhouse he saw it start off. He states it was his duty as hostler to take the engine to the coal shed after the crew got off, and unless out of order to “put her on the track to remain there until the night crew comes and takes her.” This he was apparently about to do when the engine was-suddenly started off with the call boy in the cab. Where an accident is caused by the negligent act of an employe which is entirely outside the scope of his employment, the employer is not to be held responsible. In other words, such negligent act is not the negligence of the employer. Ill. Steel Co. v. Zolnowski, 118 Ill. App. 209-215 et seq., and cases there cited; C., M. & St. P. Ry. Co. v. West, 125 Ill. 320-323; Oxford v. Peter, 28 Ill. 434-435; Whipple v. M. C. Ry. Co., 90 N. W. Rep. 287. The other contentions in behalf of appellee are to the effect that the switches between the engine at the roundhouse and the main track upon which the engine when started forced its way and where the collision occurred were not lined up and set for the side tracks and locked. As we have said, the evidence is apparently conclusive and it is undisputed that the engine was left by its engineer at'the conclusion of his day’s work in a safe condition. While it appears that engines when left standing with the levers in a certain position or where the throttles are so defective as to permit steam to leak into the cylinders have been known to start, such automatic start has apparently never been known to happen and is said to be impossible when, as in this case, the levers were in proper position and there was no leak at the throttle. We discover no evidence of negligence in the fact that the switches were in condition so that an engine might run through them or over them on to the main track. It is evidently inconsistent with the practical operation of a railroad that switches should always be kept closed and locked upon side tracks leading from a roundhouse to the main track whenever an engine may be standing at the roundhouse; and we are unable to concur in the contention that the failure to do this, under the circumstances of the present case, was a failure “to do something which human care, vigilance and forethought would have suggested.” It is urged, however, that there was negligence “in the failure of the switchman to close the switches and sidetrack the engine when he saw it making for the main line as he did, and attempting to flag it with his lantern.” There is evidence to the effect that the engine passed this switchman at a rapid rate on its way to the point of collision and that the switchman ¿ ‘kept giving the stop signal with his lantern”; that the switch was “lined for the main and No. 18 ran through it and broke the stand so it could not be turned back for the main without putting a new stand in.” It appears that with switches like those in use at that locality a train can be pushed through if going in the proper direction, as the witness states, with the switches “locked or unlocked,” that “you cannot ditch a train by throwing a split switch. The reason a train cannot run off a split switch is because it goes up either one track or the other. In a split switch there is one permanent rail, so that if the switch is open it allows you to run up another track. A stub switch is where you have two ends of the track come together and you can back a train off that switch, but you cannot with a split switch. Stub switches are not common, but there are hundreds of them in this city.” It would appear from this evidence that the engine could not have been derailed or ditched at the switch, no matter what the switchman might have done, if by any chance he could have anticipated the starting of this engine as it was started and' its unheralded approach. Doubtless had its coming been foreseen, the switch might have been set differently or other precautionary measures might have been taken, but that the occurrence could reasonably have been foreseen at this time and place under conditions such as then existed, there is no evidence tending to show. We are compelled to the conclusion that the collision was not, under the evidence, the result of any failure to exercise the degree of care owing by it to appellee, a passenger upon the train with wnich the engine collided. The switchman can scarcely be deemed negligent for failure to prevent an accident by a wild engine, which passes before he has time to perceive the danger or provide a remedy. The engine which caused the accident was left in a safe condition on the coal track near the roundhouse in the railroad yards of appellant. In this respect the case differs materially from Elgin, Aurora & Southern T. Co. v. Wilson, 217 Ill. 47-52, where the accident occurred by reason of negligence in failing to lock or guard a switch which was exposed so that a boy not in the employ of the railroad company opened it in the absence of the' switchman. In that case it was said: “That a collision was caused by the tortious act of a stranger could have no effect to relieve the common carrier from responsibility to an injured passenger, if the failure of the carrier to do that which human foresight and forethought would have suggested presented the opportunity for the commission of the tortious act. ’ ’ Under the facts in the case at bar it is apparent that human foresight and forethought would not be likely to suggest that this young man of nineteen years, no longer a mere boy, who had been in the employ of the company long enough to become familiar with his duties as such employe, would go out of his way to meddle with the machinery of an engine which he had nothing to do with as an employe, and set in motion, as he did, its immense power, with which he was familiar, at the risk of his own life as well as of injury to other persons and property. For the reasons indicated, the judgment must be reversed, with a finding of facts. Reversed, with finding of facts