Lake Shore & M. S. Ry. Co. v. Conway , 1896 Ill. App. LEXIS 43 ( 1896 )

Mr. Justice Waterman

delivered the opinion of the Court.

We think that the jury was warranted in finding that the injury to appellant was caused by the negligence charged in the declaration, viz., in permitting the track, off which the car ran, to be and remain out of repair and dangerous for the running of trains thereon. The statement in the declaration, “ said train was insufficiently and improperly manned and lighted,” was but a mere recital; whether proof of the same was made, is, after verdict, immaterial. B. & O. S. W. Ry. Co. v. Then, 159 Ill. 535.

The plaintiff was not bound to prove that the defendant had notice of the defective condition of the track. Neither the track nor the car was an appliance or instrumentality with which the plaintiff discharged his duties. He was injured, not because of a defect in anything supplied to him by his employer, but because appellant drove a car against the tower in which he was working.

Doubtless the obligations of a railroad in respect to side tracks are not as onerous as in regard to the main line; and had appellee been working upon the car which ran off, and thus been injured, a question very different from the one at bar would be presented. The declaration does not, in terms, allege that the plaintiff was, when injured, in the exercise of ordinary care, but it sets forth that he wTas in the usual and ordinary course of his employment in the tower house; this amounts to a charge that he was in the exercise of ordinary care. Gerke v. Fancher, 158 Ill. 375.

Moreover, a failure to allege that a plaintiff was in the exercise of ordinary care is cured by a verdict against the defendant. A., T. & S. F. Ry. Co. v. Feehan, 149 Ill. 202; Ill. Cent. Ry. Co. v. Simmons, 38 Ill. 242; B. & O. Ry. Co. v. Then, 159 Ill. 535.

It was not necessary that the plaintiff should show more than that the defendant, by the exercise of reasonable diligence, might have known of the defective condition of the track which caused the accident. As to this, a defective condition caused by an accumulation of frozen snow and mud, is very different from a defect arising from a flaw in a rail, a thing which might not be discoverable save upon a minute and, before the passage of each train, impracticable examination. Wood on Master and Servant, Sec. 329, 389, 411.

While not entirely approving of the instructions, we do not think that the defendant was unduly prejudiced thereby.

The damages recovered seem large, but are not so great as to shock our sense of right.

The judgment of the Circuit Court is therefore affirmed.