South Side Elevated Railroad v. Nesvig , 114 Ill. App. 355 ( 1904 )

Mr. Justice Baker

delivered the opinion of the court.

It is insisted that the plaintiff was guilty of contributory negligence. It is said that it was no part of his duty to put his head so far over the gate while the train was in motion; that if he heard a noise that indicated that a shoe was loose he should have stopped the train. This contention is without merit. It was plaintiff’s duty to exercise great care for the safety of the passengers upon his train, and to that end to be vigilant, alert and watchful against signs and indications of danger, and in case he heard a noise that indicated to him danger to his train, it was his duty promptly to investigate and ascertain whether there was such danger and whether there was cause for stopping the train.

The evidence warranted the jury in finding that it was in discharging this duty that plaintiff was injured, and the question whether in doing what he did in the discharge of that duty, he exercised ordinary care for his own safety was, upon the evidence in the case, a question of fact for the jury, upon which their verdict is conclusive.

There are many cases in which judgments in favor of an employee of a railroad company against the company for injuries sustained by such employee when upon a car in the discharge of his duty by coming in contact with a telegraph pole, wire, or other obstruction on the right of way of the railroad company, have been sustained. C. & I. R. R. Co. v. Russell, 91 Ill. 298; C. B. & Q. R. R. Co. v. Gregory, 58 Ill. 273; 1 Thompson on Negligence, 2nd ed., sec. 1239; I. C. R. R. Co. v. Welch, 52 Ill. 183; Erslew v. N. O. & N. E. R. R. Co., 21 So. Rep. 153.

It is insisted by the railroad company that as the pole stood, not upon the right of way of the railroad company but in a public alley, over which, the company had no control, the railroad company cannot be held liable. The duty of the railroad company was to use reasonable care to furnish to those in its service a reasonably safe place to work, and when a pole was erected so near to its tracks as to endanger the safety of those employed on its trains it was its duty to use reasonable diligence to cause the removal of such pole to a safe distance from the track. The evidence shows that the superintendent of the railroad company knew of the erection of the pole two years before the accident; that three days before the accident its train master was told that the pole was liable to hurt some one if it was not moved, and no effort was made to effect the removal of the pole until after the accident. The pole was no less dangerous standing in an alley than it would have been had it stood upon the right of way at the same distance from the track. It is a general rule that for every legal wrong the law affords a remedy, and we cannot doubt that the law can prevent the placing of an obstruction in a street, alley or elsewhere so near to the tracks of a railroad company as to endanger the safety of the employees of the company in the discharge of their duties.

We think the evidence abundant to support the finding of the jury that the pole in question was erected and maintained by the Cosmopolitan Electric Company. It was the duty of that company, in erecting the pole, to use ordinary care to see that the pole was placed at such a distance from the tracks of the railroad company as not to endanger the employees of that company in the discharge of their duties. The finding of the jury that the electric company was guilty of negligence in placing the pole so near to the railroad track and that such negligence contributed to the injury of plaintiff, cannot be said to be against the evidence.

The jury were fully instructed in twenty-five instructions given for the defendants as to the law of the case and we find no error in the refusal to give either of the two instructions which were refused.

It is contended that the damages are excessive. From the evidence the jury were warranted in finding that the plaintiff sustained severe and permanent injuries to bis head, causing deafness in one ear; that by reason of such injuries he has been unable to control himself, to work or to study, and that the pain in his head from the time of his injury, August 2, 1900, to the time of the trial, October 2, 1902, had been constant and severe. We cannot say that upon the evidence the damages awarded the plaintiff are excessive.

The judgment will be affirmed as to both of the ap- _ pellants.

Affirmed.

Mr. Presiding Justice Freeman concurs in the conclusion as to the Cosmopolitan Electric Company, but dissents from the conclusion apd judgment as to the South Side Elevated Eailroad Company.