Offner v. Erie Railroad ( 1908 )

Mr. Justice Smith

delivered the opinion of the court.

The peremptory instruction of the court and the errors assigned thereon present the question whether there was any evidence before the court and jury tending to prove the declaration or any count thereof.

The conclusion we have reached in this case is that the judgment must be reversed and the cause remanded for a new trial. In view of this conclusion we refrain from any discussion of the evidence, and from a consideration of the evidence for any other purpose than to determine the question above stated.

In our opinion, the evidence tends to show that the injury and death of the plaintiff’s intestate was caused by an extraordinary danger not ordinarily incident to the business of his employer, the Chicago & Erie Railroad Company; that the plaintiff’s intestate, at the time of the accident, was exercising all the care and caution required of him, and that he in no way contributed to the injury by any negligence on his part; that he was employed by the Chicago & Erie Railroad Company, which was negligent in failing to furnish him with a reasonably safe place to work in, considering that the business it was conducting and the work he was doing was more hazardous than other lines of employment; that the locomotive was operated by men working for the Chicago & Western Indiana Railroad Company, the owner of the yards and track where the injury occurred; and that the locomotive and crew were the property and servants of the Chicago & Western Indiana Railroad Company or its lessee (Pennsylvania Co. v. Ellett, 132 Ill. 654; Chicago & Erie R. R. Co. v. Meech, 163 Ill. 305; Chicago & Western Ind. R. R. Co. v. Newell, 212 Ill. 332); and that the locomotive and crew ran upon the same track on which plaintiff’s intestate was working, repairing a freight car, without giving any warning or signal, and collided with said freight car, causing the injury; that the Hue flag put up hy the deceased was a signal used in the yard where deceased was working, and was provided for that purpose; and that deceased left him surviving his widow and daughter, and that plaintiff in error had been duly appointed administratrix of thé estate of the deceased.

The evidence in the record tended to prove, in our opinion, the case laid in the declaration, and should have been submitted to the jury. It was therefore error to give the peremptory instruction. The issues in án action at law should be submitted to the jury where the evidence in favor of the plaintiff, standing alone and uncontradicted, is sufficient to authorize a verdict in his favor. McCann v. Mayer, 232 Ill. 507.

The witness Heinz testified that the deceased obtained a blue flag from a shanty where the men kept their clothes in the yard, and put it in a knuckle on the south end of the south car on the track on which the car stood which he was repairing. He was then asked by plaintiff’s counsel: “Q. Did you ever see Mr. Offner use a blue flag before that ? ’ ’ Obj ection was made by defendants to this question, and plaintiff’s counsel stated that he wished to show who used it and what it was used for. The court sustained the objection. Plaintiff’s counsel then asked the witness: “Q. Did you ever see the men who worked about those yards use a blue flag in the yards there?” The court sustained an objection to this question. Counsel then asked the witness: “Q. Did you ever use a blue flag yourself? A. Tes, sir.” The court struck out the answer.

We think this evidence was competent and that it was material error to exclude it. The evidence sought to be introduced bore upon the usual and ordinary method of conducting the business in the yard and what notice the flag gave, if any, and upon what were the ordinary hazards in that business as conducted, upon the care of the deceased for his own safety, and what risks were not ordinarily incident to the employment in which the deceased was engaged, and the question as to whether the deceased assumed the risk of injury. These questions were in the case and were for the jury to determine. Colson v. Graver, 80 Ill. App. 99.

For the errors named the judgment is reversed and the cause is remanded.

Reversed and remanded.