Chicago & Eastern Illinois Railroad v. Pittman ( 1907 )

Mr. Justice Dibell

delivered the opinion of the court.

Three feet of the west rail of this switch track had been gone, and the space vacant, for a period of from twenty to thirty days. This vacant space was in' a track graded three or four feet above the natural level of the adjacent ground, so that if a car was pushed over this space where no rail was it would naturally go off the track and down the bank to the west. About three or four feet west from the side of a car when on the. track at that place was a water tank resting on numerous posts. If a car went off this track and down this bank where the three feet of rail were missing, such car would be likely to strike the tank or its supporting posts. Not only had this dangerous condition of its track continued so long that the jury could hardly fail to find that defendant had notice thereof, but also the proof showed that defendant had actual notice long before this accident, for the agent or someone else having authority to act for defendant at that station had ordered the necessary rails to supply the defect, and they had been sent, and at the time Pittman was killed they had been at the station a week or ten days, ready to be put in place. This proof warranted a finding that defendant had been negligent, that this negligence caused the death of Pittman, and that his death did not arise from a risk assumed by him from the nature of his employment. The proof had some tendency to show that the engineer kept the force applied to the cars longer than he should, but if this was negligence of a fellow-servant contributing to the injury, yet it was also negligence by defendant to permit a track to be used by its trains with three feet of rail on one side missing; and if Pittman was killed as the result both of the negligence of a fellow-servant and of the negligence of the master, the latter is liable. C. & A. R. R. Co. v. House, 172 Ill. 601; Pullman Palace Car Co. v. Laack, 143 Ill. 242; C. & N. W. Ry. Co. v. Gillison, 173 Ill. 264. The conductor’s duties did not necessarily take him upon the switches on all occasions. Three witnesses who were in position to know testified that they had no recollection of seeing Pittman upon that switch track for a month before the accident. One of them said on cross-examination that “he” was there every day, but a reading of the passage from the record convinces us that he meant that he, the witness, was on that track every day, and that he did not refer then to Pittman. Defendant introduced two witnesses who testified to a conversation with Pittman several days before he was killed, wherein his language implied that he knew that the bumping posts were out of repair. There was rebuttal which tended to overcome the evidence of one of these witnesses as to-this conversation. But if Pittman did know that the bumping post was out of repair, he may have learned it by report or hearsay and not by personal observation, and information from others that the post was out of repair would not necessarily imply knowledge that three feet of the railroad track was out. It was very improbable that he would have ordered a car shoved over a place where he knew three feet of rail were gone, and would have placed himself at the head of a ear which was to pass over such a place and between two structures, each close to the track. This bumping post had not been knocked out of place by Pittman’s train, but by a switch engine which came there to do some work. Defendant asked a special verdict on this question and obtained an answer that deceased did not know of the condition of the track and bumping post before he started to place these cars at the boiler room. The proof permitted that special verdict. The court therefore properly refused to direct a verdict for defendant as there was proof tending to establish every element of a case for plaintiff.

While a plaintiff may dismiss his suit as to any count of his declaration, defendant is not entitled to compel him to do so upon the trial because of any supposed lack of proof. If plaintiff was entitled to have any direction from the court as to any count of the declaration, which we do not decide, it could only obtain such action by presenting instructions on the subject, as the court below properly held. Defendant did not choose to present the instructions which the court suggested. If plaintiff made a case entitling her to recover under the amended sixth count and under the fifth and seventh counts, then it is unimportant whether or not plaintiff was entitled to recover under either of the first four counts. The fifth and seventh counts were like the amended sixth, but more general. The seventh was defective in not averring notice to defendant, but it was good after verdict. City of East Dubuque v. Burhyte, 173 Ill. 553; Boyce v. Tallerman, 183 Ill. 115; Sargent Co. v. Baublis, 215 Ill. 428.

The instruction given at plaintiff’s request was very carefully guarded. It is argued that it should have submitted the questions whether deceased could have known of the condition of the track by the exercise of diligence, whether deceased had equal means with defendant of knowing that the track was defective, and whether defendant knew of the defective condition of the track for a sufficient length of time before the accident to enable it to notify the deceased or to make repairs. We think these suggestions are not applicable to the case made by the proofs. It was not deceased’s duty to inspect the tracks. Defendant had other servants upon whom that duty rested, who were not fellow-servants with Pittman. Pittman was not required to exercise diligence to learn if the rails were in place upon the track. He had a right to rely upon the master to furnish him a safe switch track upon which' to do his work. As defendant had known of the defect long-enough to actually obtain the necessary rails with which to make the repairs, and had had them lying at its station, a few hundred feet from the defect, a week or ten days, the jury could not have found that defendant had not known of the defect long enough to enable it to notify Pittman or to make the repairs. No error was committed in omitting those elements, under the facts in this case. It is argued that the instruction did not tell the jury that the burden was upon plaintiff to establish the elements therein named as essential to a recovery by plaintiff, and did not require the jury to find these elements from a preponderance of the evidence. At the outset the instruction says: “if you believe from a preponderance of the evidence in this case.” Later on it uses the expression “if you further believe from the evidence,” “provided you further find from the evidence,” and the like. In I. C. R. R. Co. v. Warriner, 132 Ill. App. 301, we held that to find or believe from the evidence means to find or believe from a consideration of all the evidence, and therefore calls for a finding from the preponderance of the evidence. To the same effect is Donk Bros. Coal Co. v. Thil, 228 Ill. 233, published since this opinion was written. 'Several of the instructions given at the request of defendant stated that plaintiff must prove her case by a preponderance of the evidence, and it was not essential that the rule should also be stated in the instructions given at plaintiff’s request. Mitchell v. Hindman, 150 Ill. 538; Central Ry. Co. v. Bannister, 195 Ill. 48. We are of opinion that the instructions are not subject to the other criticisms made upon them, and that the record is free from reversible error.

The judgment is therefore affirmed.

Affirmed.