O'Day v. Chicago & Alton R. R. , 97 Ill. App. 632 ( 1901 )

Mr. Justice Waterman

delivered the opinion of the court.

The plaintiff, so far as appears, was at no time in the service of the defendant nor did the defendant have notice of her-presence in or about its yards.

The only information that the defendant had that cast upon it any duty with respect to her was that car cleaners at times worked in its yard cleaning Pullman cars there left for that purpose; it was not informed that she or any persons were in the train which it moved. Such being the case, she being, as regards the defendant, a licensee only, the duty it owed to her was not to be reckless of the safety of her as one of those who might, in the discharge of duty, be in or coming out of Pullman cars; to do what it did with due regard to the possibility that Pullman cars might be occupied by cleaners. Bolch v. Smith, 7 Hurl. & Norman, 736-743.

Whether such duty required the defendant before moving such cars to give notice by ringing a bell or sounding a whistle, or whether the defendant was required to move-the cars without “ jerk or jar ” would, in the absence of any evidence as to rule or custom known to her, seem to be questions of fact.

The cars were nofc on a track from which passengers were received or discharged, but on a side or storage track. The plaintiff was engaged in work manifestly hazardous, as is all work in a railroad yard, and she was bound to look out and use as much care and caution for her safety as the manifest hazards, uses and business of the place required.

Four witnesses testify that the bell was ringing as the engine approached the cars and made connection therewith. The plaintiff and one witness testify that they heard no bell. The plaintiff alone testifies that “ engine bumped train and threw her.” Jennie Wilcox testified that she “heard the engine come and bump the train and knew it had moved.” No one, save the plaintiff, and Louis Hartweg, saw the accident. He declares that the bell wras ringing and says: “ Saw her when she fell; train was moving south; the train started to move very slow.”

The plaintiff testified that she “ stepped on platform; had a pail of water and a basket on my arm; took hold of railing with my hand; engine bumped train; threw me and struck back on steps.” It appears to have been snowing at the time of the accident. That there is usually a shock or jar when an engine connects with a train is well known; whether the “ bump ” in this case was more than is usual or more than was reasonably avoidable was not shown: In what way the failure to ring a bell, if such failure there were, contributed to the accident was not shown. The plaintiff’s witness, Jennie Wilcox, cleaning cars with the " plaintiff, does not speak of the “ bump ” as anything severe, unusual, or avoidable. But the plaintiff does say that the “ bump ” threw her on her back.

The rules of the Alton railroad, for which the plaintiff was not working and of which she had not been informed, shodld not have been admitted in evidence. Nor should the thirteenth instruction have been given at the instance of the defendant. Hpon certain persons, as common carriers, the law imposes the highest degree of diligence. Ordinarily the duty or obligation as to care is determined by the circumstances. It can not be said that as a matter of law the presence of danger and impending disaster “ involves the exercise of the highest degree of vigilance and care ” for one’s own safety. Man is ever in the presence of danger, and ofttimes of disaster, without the danger being very great or his having notice of either, hi or do we regard the following instruction one that should have been given:

“ The court instructs the jury that the requirement of the law that the plaintiff shall prove each and every material allegation in her declaration, or some count thereof, before she can recover, is one of the requirements that is as binding upon you in this case as any other obligation; and even in this case, if you should believe that the testimony is evenly balanced, under the law and your oaths, your verdict should be for the defendant.”

The definition of ordinary care “ or reasonable care ” is that care which “ prudent persons usually exercise; ” as applied to a particular case, is that care which prudent persons would exercise under like circumstances. v

The seventh instruction was faulty in making use of the term “ ordinary persons ” instead of “ prudent persons.” hi or should instructions have been given speaking of risk, assumed by the plaintiff.

As the plaintiff was never in the employment of the defendant, neither, with respect to the.other, assumed any risk.

The plaintiff knew that she worked in a perilous place, that the cars she cleaned were liable to be moved at any moment, and she was bound to exercise such care for her safety as the obvious dangers of the place required.

The plaintiff did not submit any special interrogations to be answered by the jury; the defendant did, but they were not given; the court of its own motion prepared and submitted three, w'hich the jury did not answer.

The plaintiff did not ask the court to direct the jury to retire and answer their questions, but merely excepted to the action of “the jury in failing to answer” the special questions.

This action of the jury can not be assigned for error, nor can the action of the court in failing to do what it was never asked.

Notwithstanding the errors pointed out, we think that the judgment should be affirmed.

The plaintiif made no case entitling her to a verdict. The evidence that the defendant was negligent was not such that reasonable men could come to the conclusion that she had established by a preponderance of the evidence the allegations of her declaration. Affirmed.