Koepke v. Chicago, Rock Island & Pacific Railway Co. , 200 Ill. App. 247 ( 1916 )

Mr. Justice Niehaus

delivered the opinion of the court.

2. Master and servant, § 337^*—what risks employee does not assume. An employee assumes only the ordinary risks and dangers of his employment and does not assume extraordinary or unusual risks thereof. 3. Master and servant, § 337*—when assistant ear inspector does not assume risk of being struck by cars during switching operations. An assistant railway car inspector, who, after a mail car has been detached from the rest of a passenger train by a road engine and moved from four to six feet from the rest of the cars standing on the track, is working in front of the buffer of the car inspecting it, does not assume the unusual and extraordinary risk of being .struck by the foremost car of the rest of the train which, with other cars, is set in motion as the result of a switch engine working at the other end of the train bumping against the standing cars with unusual violence, as such a risk is an extraordinary one. 4. Negligence, § 74*—when person not bound to anticipate negligence of another. The law does not impose upon one to anticipate the negligence of another, as it is presumed that every person will properly perform the duty which is enjoined upon him by law or imposed by contract. 5. Master and servant, § 716*—when negligence of defendant in cutting off coaches from cars moving against car repairer question for jury. In an action for the alleged negligent death of an assistant car repairer as the' result of being caught between the buffer of a detached mail car and the foremost car of the rest of the train, while inspecting the detached car, as the result of the moving of the string of cars against him, upon their being struck by a switch engine during the operation of cutting off two coaches from the other end of the train, held that it was a question for the jury whether defendant was guilty of negligence. 6. Master and servant, § 759*—when contributory negligence of car repairer standing between mail car and rest of train question for jury. In an action for the negligent death of an assistant car repairer who was killed by being crushed between a detached mail car, which he was inspecting, and the rest of the train, from which two coaches were being “cut off” by a switch engine working at the other end of the train, as the result of the engine striking the cars with such force as to set them all in motion, held that it was a question for the jury whether the deceased was guilty of contributory negligence in being in the position he was at the time of the accident. 7. Master and servant, § 98^*—what is effect of contributory negligence on right of recovery under Federal Employers’ Liability Act. Under the Federal Employer’s Liability Act, contributory negligence does not bar the right of recovery, but affects the amount of damages which may be recovered, and the damages are to be diminished by the jury in proportion to the amount of negligence attributable to the employee. 8. Death, § 63*—when damages for negligent death not excessive. In an action for negligent death under the Federal Employers’ Liability Act, a verdict for $7,200 upon reduction of $800 for the contributory negligence of the plaintiff, held not excessive nor disproportionate.