Illinois Central Railroad v. Campbell , 58 Ill. App. 275 ( 1895 )

Mr. Justice Gary

delivered tub opinion of the Court.

This is a case in ivhich the court must rest upon the rule that the jury determines the facts.

The appellee was a switchman in the service of the appellant, working in a yard of several tracks, and in the night of May 5, 1891, his foot was caught in an unblocked frog and he lost his foot and a part of the fingers of his right hand.

The original declaration, filed June 24, 1892, went only upon the charge that an unblocked frog was a danger to which a switchman ought not to be exposed; but on the trial that ground of action was abandoned, as the appellee knew the construction.

March 3, 1894, an additional count was filed, and April 20, 1894, another, both of which alleged that the appellant wrongfully permitted a pile of cinders and like material to be and remain near to the frog, the appellee being unaware of the pile, and that he stumbled upon it, and his foot was thereby thrown into the frog.

To these counts the appellant pleaded that the cause of action did not accrue within two years next before they were filed, to which plea a demurrer was sustained, and rightly, for th.ey were but another way of telling the original story. Stearns v. Reidy, 133 Ill. App. 246.

If the pile was there, nothing in the case explains how it got there further than that such piles came from cleaning out fires and ash-pans of engines. Bor is there any evidence of how long it had been there, except the testimony of the appellee that it was cold, and his testimony, corroborated by other that such a pile, in the absence of any water upon it, will smoulder twelve to eighteen hours.

Whether the pile was there, and if there its condition, was testified to only by the appellee.

Bow, assuming that such a pile was there, and had been there during the whole or the larger part of the working hours of the previous day, and that its presence increased the perils of a service—switching in the night—necessarily dangerous, it was a question for the jury whether the appellant was negligent. And passing the question of pleading, the real question is whether an instruction offered by the appellant that the appellee was not entitled to recover should have been given. . Eleven instructions for the appellee, and ten unmodified and four modified for the appellant were given. Six asked by the appellant were refused.

To go over all that the appellant urges upon the subject of instructions would take too much space, and we must briefly state that in our judgment no error of law is in the record, and the judgment is affirmed.