Chicago & Alton Railroad v. Kerr

Opinion of the Court, the

Hon. Carroll C. Boggs, Judge.

The appellant company was, on the 8th day of May, 1890, improving or repairing the track of its road at a point about three miles south of Jacksonville. We think the evidence establishes the fact that at the close of that day the track at this point was left in an unsafe and dangerous condition. At 9 o’clock of the night of the same day the division superintendent of the appellant company while on one of the appellant’s trains passed over the place in question and his attention was called to the imperfect condition of the track. He so testified, and stated further that the train rolled or rocked to such an extent that he, on arriving at Jackson ville about fifteen minutes after, directed a message tobe sent to the train master at Boodhouse, instructing him to notify those in charge of trains to run slowly over that part of the road.

The appellee was in appellant’s employ as a fireman, and acting in that capacity, left Boodhouse at about one o’clock of the same night on an engine drawing meat train Ho. 75.

The conductor of this train received orders concerning the operation of his train from the operator at Boodhouse, but was not warned of nor did he receive any order relating to the defective or unsafe condition of the track. This train passed over the dangerous point at a high, but not unusual rate of speed, and by reason of the imperfect condition of the track the engine rolled and lurched from side to side so violently that the appellee was thrown with great force from his place in the engine to and upon the ground, and received injuries for which he recovered a judgment in this case, in the Circuit Court, against the appellant company, in the sum of $3,250. This is an appeal from that judgment.

As before said it is abundantly proven that the track was imperfect, rough and unsafe. This appellant’s division superintendent knew, possibly in time to have caused it to be repaired and made safe and certainly in ample time to have warned those in control of other trains of the danger, lie attempted ineffectually to give warning through the train dispatcher. Whether the operator at Jacksonville neglected to send the message as directed by the superintendent, or whether the train dispatcher neglected to obey it, does not appear. The failure and neglect of either was the failure and neglect of the appellant.

Rule No. 35 of the appellant company is as follows: se A stationary red flag by day or red light by night denotes that the track is impassable, and trains must stop at once and not proceed until it is known to be clear. A red flag with a white center by day or a red and white lamp placed close together at night denotes that the track is imperfect, and must be run over with great caution.

This rule was in force at the time of the accident and the division superintendent testified that it was the duty of any officer of the road to display the signals required by the rule whenever the condition of the track was such as to make that course necessary. Compliance with this rule was easy and convenient of accomplishment and would, beyond any reasonable doubt, have secured the appellee from injury.

We think that in the exercise of ordinary prudence and diligence the signals required by this rule should have been displayed.

The appellant company owed to the appellee as one of its employes, the duty of using the uttermost care and vigilance consistent with the practical operation of the road, in keeping its tracks in safe condition. P. C. & St. L. R. R. Co. v. Thompson, 56 Ill. 138; T. P. & W. R. R. v. Conroy, 61 Ill. 163; same v. same, 68 Ill. 560; C. & A. R. R. v. Platt, 89 Ill. 141.

In T. P. & W. R. R. v. Conroy, 68 111. 560, which was an action by an employe against the railroad company, it is said: “ The duty owing by a railroad company to the public as well as those m their employment is that the road and its appurtenances shall be constructed of the best materia^ having in view the business to be done upon it. In their construction they should equal those of the best roads doing an equal amount oí business, and the utmost care and vigilance should be bestowed upon them in keeping them in safe condition.”

“ The law will not allow them to be out of repair an hour longer than the highest degree of diligence requires. And further, it is their duty to keep a sufficient force at command and of capacity sufficient to discover defects and apply the remedy.”

The instructions given for the appellee are in harmony with the views thus expressed and are not open to the objection sought to be preferred against them. Tested by these rules the appellant failed to discharge its duty in leaving the track in such a dangerous condition, and failed again in not taking steps to put it in safe condition when its division superintendent received actual knowledge of its defects, and failed further in not giving warning by the signals required by its own rules.

We do not feel as well satisfied as we would like to be as to the extent or permanency of the injuries of the appellee The testimony of the medical experts is conflicting and not entirely satisfactory; but we are not warranted in saying that upon this point the jury were manifestly wrong or that there is not sufficient evidence in the record to support the finding. The judgment must be and is affirmed.