Belt Railway Co. v. Manthei , 116 Ill. App. 330 ( 1904 )

Mr. Justice Adams

delivered the opinion of the court.

The only circumstance relied on by appellee as negligence is the omission of appellant’s servants to warn or notify him that the cars were about to be moved. The only necessity which he can possibly claim for such warning or notice, is the position of the plank on the ground, a few feet north of where he was working. He stepped over this plank only a few moments before the accident, and evidently did not apprehend any danger from it, but only from the cars. He knew the cars were about to be moved, because he was sent to clear the track, so that they could be moved, and he says: “ I went about three feet from the car, so that it could not strike me. I was far enough from the car all the time, so that it could not touch me.” He also testified, “ I was working to clear the track, so the engine could take the car out.” If he knew that the cars were about to be taken out, and was clearing the track for that purpose. and if one end of the plank was on the rail, as he testified, why did he not remove it ? The fact that he did not change the position of the plank, is corroborative of the evidence of Johnson that the nearest.part of it to the rail was eighteen inches away from it, and is also evidence that appellee did not apprehend any danger from the plank. Appellee knew just where the plank was, and it is neither averred in the declaration nor shown by the evidence that Farley, the foreman of the switching crew, or any of the crew, knew this. The track was in the private yard of the Stockham Co., and owned by that company, as counsel for appellee admit, and it was maintained by that company. The omission of the appellant or its servants to notify appellee before the cars were' moved that they were about to be moved, was not the cause of the accident, because appellee, without such notification, knew this, and took a position which he considered safe, and which, apparently, was safe. If the plank was negligently placed where it was at the time of the accident, the negligence was that of the servants of the Stockham Co., and that company, if any one, is liable, and not appellant.

McInerney v. Delaware & Hudson Canal Co., 151 N. Y. 411, is a case very similar to this. In that case, a,s in this, the defendant company was moving cars from the private yard of a company, which were on tracks in the yard. The plaintiff was between two of the cars, when the engine crew of the defendant company backed down the engine, by reason of which the cars were forced together, and the plaintiff was caught between the bumpers of the cars and injured. The owner of the yard had been notified by the engine crew that they were ready to move the cars, but there was no notice by the owner of the 3rard, or by any one, to the plaintiff. There was no evidence that any of the engine crew even knew that the plaintiff was at work between the cars. The trial court non suited the plaintiff, and the Court of Appeals affirmed the judgment.

See also L. E. & W. R. R. Co. v. Gaughan, 26 Ind. App. Ct. R. 1.

The judgment will be reversed. Reversed.