Devine v. Chicago City Railway Co. , 1911 Ill. App. LEXIS 149 ( 1911 )

Mr. Justice Smith

delivered the opinion of the court.

The main question presented by the record under review is whether or not the trial court erred in directing a verdict at the close of the testimony offered by the plaintiff. The solution of this question involves, among other questions, a consideration of the evidence offered for the purpose of determining whether it supports or tends to support the averments of negligence made in the declaration or any count thereof.

The declaration contained ten counts, but the first,fifth, sixth and seventh were withdrawn. The negligence averred in the remaining counts is that the defendant permitted the switch to be and remain open and unlocked, whereby a south-bound car was propelled against a north-bound car; that the defendant provided an unfit and unsuitable switch; that the switch was permitted to be and remain in bad repair so that it did not lock; that the switch was defective in its operation so that it did not lock; and that the defendant failed to properly inspect the switch:

Upon an examination and consideration of the evidence and testimony offered, including the deposition of deceased in another case, we are of the opinion that it does not tend to support the allegations of negligence made in any of the counts of the declaration. The testimony does not tend to prove that the switch was unfit or unsuitable, or that it was in bad repair, or that it was defective in its operation, or that the defendant railway company failed to properly inspect it, or that the defendant permitted it to remain open and unlocked. As stated by counsel for plaintiff in error in their brief and argument filed in this proceeding, the evidence shows as the probable cause of the displacement of the tongue of the automatic switch a piece of bagging or gunny sack which appeared to be wedged into the switch. This was dug out of the switch after the accident by one of the defendant’s inspectors by means of an iron rod. It further appears from the evidence that when the piece of bagging was removed the switch worked perfectly. The switch worked perfectly a few seconds before the accident. The car just preceding the one which caused the collision passed over the switch, and continued on the west or south-bound track about ten seconds before the accident. This shows that the switch worked perfectly at that time. The only legitimate inference from these facts shown by the plaintiff’s evidence is that in some way the piece of bagging became wedged into the switch within about ten seconds of the time of the accident, and prevented the switch from closing automatically, and that the switch did not fail to act because of any defect or because of disrepair. By the testimony of the deceased taken in another case, and introduced by the plaintiff in error in the case under review, it appeared that he had been working as fender man at this place for a year "before this occurrence, and that the cars had “been going along there every few seconds about that hour, passing over the switch; there was never anything the matter with it before that time;” and that he did not remember of any accident before the one here in question on that switch. Plaintiff’s witness Conlon, the motorman on the car on which plaintiff was injured, testified that cars were dispatched from the pockets north of the switch and proceeded south about every ten seconds, and, “I had seen a car going south across the switch just before the car came that hit mine, and went out apparently without any hitch or difficulty at all,” and that he had not at any time prior to that trip on that day noticed anything amiss with the switch; and as far as he had observed it worked all right up to the time of the accident. He had no trouble with it, and saw no one else have any. This witness also testified that supervisor Jones was there to see that there were no blockades and to pass the cars out of the pockets as quickly as possible; also, to see that every man did his work, and that the traffic was kept moving. The witness testified that Jones would clean out the switches and see if anything was wrong with them. The witness said he saw another employe of the company working from Thirty-first street to "Washington street, who carried an oil can and a hook for lifting and cleaning switches and oiling them, but he could not say how often he worked over the territory. This witness also spoke of another man who carried a broom with a spear on the end of it with which he cleaned out the dirt that lodged in the switch. This man came generally in the forenoon and the afternoon. This testimony was corroborated by plaintiff’s witnesses Curtin, Foley and Wagner.

It thus affirmatively appears from the testimony of the plaintiff’s witnesses (and of course their testimony was not disputed by the defense) that the track and switches of the defendant were in perfect condition and working order within a few seconds of the accident, and that the track and switches were inspected and cleaned two or three times each day; and that, therefore, instead of establishing the negligence of the defendant alleged in the declaration, the evidence established without controversy that the defendant was not guilty of the alleged negligence. The trial judge was thus afforded justifiable ground for directing a verdict. Belt Ry. Co. v. Skszypsczak, 225 Ill. 242; Libby v. Cook, 222 id. 209.

Having reached the conclusion indicated above on the main question of liability, it is unnecessary for us to discuss the question whether the evidence shows that the deceased was in the exercise of ordinary care for his own safety, or the question whether the injuries complained of were the cause of the death of Beter Gentleman.

The judgment is aErmed.

Affirmed.