Chicago & Alton Railroad v. Matthews

Opinion of the Court.

This case was heard at a former term, 39 Ill. App. 541. It is unnecessary to restate the facts as they are substantially the same as before.

The plaintiff recovered, and the most important question is whether the evidence supports the verdict.

The rules of the company require the Brakeman to be on top of the train when approaching a station so as to keep the train under control, and they also forbid brakemen from being on the top of unusually high cars when approaching bridges or viaducts.

The court, at the instance of the defendant (instruction 14), advised the jury that these rules were not in conflict and the jury were thus given to understand that they must be construed together. It happened that the viaduct was near the station in this instance and while the plaintiff was, under one rule, required to be on top of the train to set the brakes, it was his duty to avoid the high car as he neared the viaduct.

There were no whipping straps or lights to advise him of the exact location of the viaduct and the night was very dark, but he knew he was not far from it, and in doing what he regarded as necessary in setting the brakes he was not unmindful of the viaduct, but was mistaken either as to its exact location or as to the speed of the train, and thus received the injury.

There was a narroiv line between his duty to his employer and a proper regard for his own safety.

He felt bound to use all practicable effort to set the brakes and at the same time he was compelled to use reasonable care for his own protection. If the master so arranged matters, by allowing a viaduct at a point where the brakeman was required to be on top of the train, and by admitting into the train a car too high to pass safely with a brakeman standing upon it, and by providing no light or other warning, that it became necessary for the brakeman to incur some risk in performing his duty, and if the brakeman in this seeming conflict between his duty and his safety used reasonable care and judgment, exercising such caution as a reasonably prudent man would, ordinarily, under like circumstances, then the master ought to compensate him for the injury. As we understand the case this is all there is of it and the issue was for the jury under proper instructions.

Without discussing the evidence in detail we are disposed to say that there is no such want of proof either in respect to plaintiff’s care or the defendant’s negligence as to require us to set aside the judgment.

Was there any substantial error in giving or refusing instructions ?

For the plaintiff the court gave nine instructions, covering four pages of the printed abstract; for the defendant fifteen, covering six pages. The court also modified and gave as modified four other instructions for defendant and refused to give eight others. It would be singular if in all these there appears no ground for criticism, and doubtless there is some want of accuracy amounting to technical error.

But after carefully considering the whole we are of opinion that the rights of appellant were not prejudiced in any appreciable degree by the action of the court in this regard.

We shall not follow seriatim the objections suggested in the brief, and will notice only such as seem to us the more important.

1st. It is urged that the court left it to the jury to construe the rules offered in evidence. To this it may be answered that while it was for the court to construe the rules if a construction was necessary, still the real question was whether the apparently conflicting rules were to be construed together, or rather, when, by reason of the peculiar situation they seemed to conflict, whether they were to be so construed. The court advised the jury that these rules were not in conflict and must be construed together, thus placing the matter before the jury to determine whether, in complying with all the rules as far as the situation would permit, the plaintiff used proper care for his own safety. Of this we think the defendant could make no- just complaint.

2d. It is urged that the court erred in refusing instructions to the effect that if the plaintiff knew of the proximity of the viaduct the want of signals was not important. The substance of this proposition is involved in the 2d and 3d, and perhaps by implication in other instructions which were given. These refused instructions were somewhat loose and misleading. If the plaintiff knew accurately where he was he could not complain that there were no signals; but it is apparent that he only knew he was approaching the viaduct and that he was not forgetful of it. Hence the question recurs whether, in what he did, he was unduly careless of himself in his effort to perform his duty of setting the brakes; and so it appears that from whatever standpoint the case is considered, this was the controlling question, it being, as we think, not a matter of doubt that he was not responsible for the height of the viaduct or of the foreign car, and that he was only bound to use reasonable care in view of a situation for which the master was responsible.

3d. The 2d refused instruction is in substance the same as the 2d given for defendant.

4th. All that was material-in the 3d refused, is found substantially in the 14th and 15th given, and in the 4th of the modified instructions.

5th. The 4th and 5th refused, were imperfect in their attempted application of the rule of fellow-servants, and there was no error in refusing them.

6th. The 7th and 8th were properly refused because they undertook to say that the position of the foreign car in the train was immaterial. Whether this was so or- not was for consideration of the jury, in connection with the other circumstances in proof.

Two objections to the rulings of the court in admitting testimony are specified in the brief, but they are not noticed in the argument, and it may be assumed they are abandoned.

Finding no substantial error prejudicial to the appellant, we are of opinion the judgment should be affirmed.