Kuetemeyer v. Illinois Central Railroad , 197 Ill. App. 616 ( 1916 )

Mr. Justice Holdom

delivered the opinion of the court.

3. Master and servant, § 763^*—when verdict properly directed for defendant in action by railroad employee for personal injuries. In an action to recover for personal injuries sustained by a painter by being struck by an engine alleged to have been owned or controlled by defendant, while engaged in painting a train shed within a short distance of the track on which such engine was running, the question of plaintiff’s contributory negligence is one of law requiring a peremptory instruction for defendant, where it appears from plaintiff’s testimony that the engine which struck him was in plain sight as it approached, and that his injury was caused by his failure to look for engines and cars approaching from that direction, there being no allegation of wilful negligence or evidence that any one on the engine knew of plaintiff’s presence in time to have avoided the accident in the exercise of ordinary care. 4. Master and servant, § 681^*—when evidence sufficient to establish that defendant did not own or operate engine. In an action against the Michigan Central Railroad Company to recover for personal injuries sustained by being struck by an engine alleged to be owned or controlled and operated by defendant, where defendant pleaded specially denying such ownership or control, and where plaintiff testified that the engine which struck him was marked “M. C. 8172,” evidence held sufficient to support the plea, where it appeared conclusively that the engine of defendant marked as testified by plaintiff was not on or near the place of the accident at the time of such accident, but was in fact being operated on another division of defendant’s road, and running between Windsor, Canada, and Buffalo, New York.