{ "id": 3255551, "name": "Anya Carpenter, Administratrix of the Estate of John J. Carpenter, Deceased, Appellee, v. Grand Trunk Western Railway Company, Appellant", "name_abbreviation": "Carpenter v. Grand Trunk Western Railway Co.", "decision_date": "1931-11-24", "docket_number": "Gen. No. 35,066", "first_page": "462", "last_page": "470", "citations": [ { "type": "official", "cite": "263 Ill. App. 462" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "252 U. S. 18", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 551432 ], "pin_cites": [ { "page": "22" } ], "opinion_index": 0, "case_paths": [ "/us/252/0018-01" ] }, { "cite": "241 U. S. 310", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 8287399 ], "pin_cites": [ { "page": "315" } ], "opinion_index": 0, "case_paths": [ "/us/241/0310-01" ] } ], "analysis": { "cardinality": 656, "char_count": 15252, "ocr_confidence": 0.51, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.09170167836039862 }, "sha256": "ff802e0c71ac1fad6fa8de1f29dc4018f40e3be5842aecdcd605f4d36d3998f9", "simhash": "1:e1e7acc22234ec9a", "word_count": 2654 }, "last_updated": "2023-07-14T19:54:13.137776+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Anya Carpenter, Administratrix of the Estate of John J. Carpenter, Deceased, Appellee, v. Grand Trunk Western Railway Company, Appellant." ], "opinions": [ { "text": "Mr. Presiding Justice - Gridley\ndelivered the opinion of the court.\nOn October 30, 1929, plaintiff, as administratrix, commenced in the circuit court an action for damages against defendant, based upon the Federal Employers\u2019 Liability Act, Cahill\u2019s St. ch. 114, If 321 et seq., for the negligent killing of John J. Carpenter on the afternoon of August 31, 1929, in defendant\u2019s 12th street yards in Chicago, where he then was employed and acting as a switchman. A trial was had before a jury in December, 1930, resulting in a verdict finding defendant guilty and \"assessing plaintiff\u2019s damages at $20,000. Judgment on the finding was entered against defendant and the present appeal followed.\nThe declaration consisted of three counts, but the third was withdrawn on the trial at the close of plaintiff\u2019s evidence. In both the first and second counts it is alleged that on and prior to the day of the accident defendant was a common carrier by railroad, engaged in interstate commerce in the City of Chicago and State of Illinois and other States; that deceased was employed by defendant in interstate commerce as a switchman, and was in the due course of his employment in a certain yard used by defendant in said city and State; that he then was engaged with other of defendant\u2019s servants in switching and assembling certain freight cars along and upon divers tracks and crossovers, which cars were then and there being used and moved in interstate transportation; and that it was defendant\u2019s duty to furnish the deceased with a reasonably safe place in which to perform his work and to exercise reasonable care in the management of all cars and engines, while being operated upon and over the premises, so as not to injure him and not to expose him to unusual and extraordinary hazards. In the first count it is also alleged that, while deceased was engaged in the due course of his employment with defendant\u2019s other servants, and while he was then \u201cstanding or walking between certain of said tracks,\u201d and while \u201che was in an obviously dangerous position in the event that any locomotive engine or car should be propelled toward him from the rear,\u201d the defendant, not regarding its said duty, so negligently \u201coperated, controlled and bached\u201d a locomotive engine toward and up to the place where deceased was working that, as the proximate result, the engine struck and ran over him, whereby he received severe bodily injuries causing his death, etc.\nIn the second count it is alleged that on the day of the accident deceased was engaged, as a member of a switching crew which included an engineer and fireman of a locomotive engine, in switching and assembling cars along and upon certain tracks \u201cextending in a general northerly and southerly direction at said place,\u201d and upon and over \u201ccertain crossovers extending respectively from the centermost track to certain adjacent tracks in a northeasterly and northwesterly direction\u201d; that the tracks and crossovers were also then being used by the members of another switching crew of defendant, who were then moving cars by means of another locomotive engine; that in the course of his employment deceased was required to be upon and near the crossovers and \u201cto operate and turn a certain ground switch by means of a switch-handle thereto attached, in order that a locomotive engine or cars could be moved along, and upon said centermost track\u201d; that the switch-handle was in such close proximity to one of the adjacent parallel tracks that an employee engaged in operating the same would, of necessity, be compelled to stand close to or upon said adjacent parallel track, and that, while so engaged, engines or cars could not safely be moved upon or along said adjacent parallel track and past the place where such employee was at work; and that all of these facts defendant knew or should have known in the exercise gf reasonable care for the safety of deceased. And it is charged that on said day, while deceased was engaged in operating said switch, defendant, \u201cthrough its other servants in charge of said other locomotive engine,\u201d so carelessly and negligently \u201cdrove, operated and bached said locomotive engine in a southerly direction along and upon said adjacent parallel track, and up to, toward and past the place where deceased was so engaged,\u201d that, as the proximate result thereof, said\" engine struck, ran against and over said deceased, causing his death, etc.\nIn both counts it is alleged that deceased left him surviving Anya Carpenter, his widow (administratrix herein), and a minor daughter, as his only next of kin, each of whom was dependent upon deceased for support, etc. To both counts defendant filed a plea of the general issue and a special plea not necessary now to be considered.\nOn the trial the evidence disclosed the following: South of 12th street there are three tracks, running north and south, called respectively the \u201chouse,\u201d the \u201cwash\u201d and the \u201clong\u201d tracks. The wash track is the center track, and the two others (\u201chouse\u201d and \u201clong\u201d) are respectively to the west and east of it. North of 12th street the \u201clong\u201d track is called the \u201cSullivan\u201d track. About 160 feet south of 12th street is the commencement of a crossover track, leading-northwesterly from the wash track to the house track. There is a \u201cjack-knife\u201d switch there, which is operated by throwing a handle crosswise between the wash track and the long track. About 30 feet south of this switch, and in the wash track, is the commencement of another crossover track (having a length of about 180 feet) leading northeasterly from the wash track into the long track and to the Sullivan track beyond. This switch is a \u201cball switch,\u201d which is operated lengthwise between the tracks. On the afternoon of August 31, 1929, and prior to the accident, there were as usual two crews of five men each, working in the yard, called respectively \u201cFox\u2019s\u201d crew and \u201cVan Vlack\u2019s\u201d crew. Each crew had a locomotive engine to move and switch cars. Fox was the \u201cconductor\u201d of his crew, which included himself, the engineer and fireman of one locomotive, a head switch-man (Carpenter, the deceased), and another switchman (Faunier). Van Vlack was the \u201cconductor\u201d of his crew, which included himself, the engineer (Spars) and fireman (Patterson) of the other locomotive, No. 7524, a head switchman (McCotter) and another switchman (Hart). Fox and Van Vlack, as well as all others of the latter\u2019s crew, were called as witnesses, some by plaintiff and some by defendant. Van Vlack\u2019s crew began work about 3 o\u2019clock p. m. and thereafter and until -about 4:30 o\u2019clock p. m., were engaged in switching divers freight cars, when Fox\u2019s crew came up the wash track from the south into the yards, with their engine-, headed north and pulling two or three cars and a caboose. Cars had been and were then being switched by Van Vlack\u2019s crew for the purpose of assembling them in the yards, as usual, into two trains which were afterwards to be moved south to Elsdon, near 51st street. Each train was to be made up of an engine, cars and a caboose. Fox\u2019s crew, of which deceased was head switchman, was, however, to move its train, after it had been assembled, out of the yards and to Elsdon, ahead of Van Vlack\u2019s train. The situations and movements of cars and the actions of the crews, just prior to the accident, were: A section of the Fox train was standing north of 12th street on the wash, or center, track. It was necessary for certain switching of other cars to be made, requiring the throwing of the switches of the crossover tracks. Van Vlack\u2019s crew coupled their engine, which was headed north, onto the two cabooses, standing on the wash track south of said switches and pushed them over the north easterly crossover track and on to the Sullivan track, north of 12th street, out of the way of other switching of cars then about to be done by Fox\u2019s crew. Hart, plaintiff\u2019s witness and a switchman on Van Vlack\u2019s crew, testified that just before this movement was made he had a conversation with Carpenter and gave him directions as to \u201clining the switches#\u201d told him of the proposed movement of Van Vlack\u2019s engine and the two cabooses, and further told him that \u201cafter we get through he could line up the switches,\u201d and that \u201cwe were going in on the long track to stay there.\u201d Following this conversation and movement, Van Vlack\u2019s engine was uncoupled from the cabooses, then on the Sullivan track, and it started backing south and into and on the long track. None of the crew was on the footboard of the tender (then front) of the moving engine, keeping a lookout. McC\u00f3tter and Hart were riding on the footboard at the head (then rear) of the engine. While this backing movement was in progress, Carpenter went to the \u201cjack-knife\u201d switch, lying crosswise between the wash and long tracks and close to the long track, for the purpose of throwing the handle thereof. To do this it was necessary for him to stand very near or over ithe west rail of the long track, and while in the act Of throwing the switch he was struck and run over by the engine and killed. No witness actually saw the engine strike and run over him. Patterson, the fireman and who was' on the west side of the engine, testified that he did not see the happening of the accident, but saw Carpenter\u2019s body immediately thereafter. Carpenter was lying on his back with head to the west about four' feet south of the switch. The hook was out of the switch and the handle in a position to throw, but it was not thrown. Hart testified that, after Carpenter\u2019s death \u201chis feet were inside the west rail of the long track towards the wash track and his body was cut in two.\u201d The engine came to a stop on the long track about 20 feet south of the jack-knife switch. The evidence was conflicting on the question of the necessity of backing said engine at all, or as far south on the long track as the switch in order not to interfere with the intended future switching movements of cars to be made by Fox\u2019s crew. Carpenter was 32 years old at the time of his death, had been regularly employed as a switchman, had received for his work from $140 to $200 per month, and left him surviving his widow and a daughter, four years old, who were dependent upon him for support.\nThree points, and only three, are made and argued by defendant\u2019s counsel as grounds for a reversal of the judgment. One is that there is no. showing of negligence on the part of defendant, or any of its employees, which proximately caused the death of deceased. We cannot agree with the contention. In our opinion there was evidence showing that the members of Van Vlack\u2019s crew were guilty of negligence in .backing the engine, at the time and as far as they did, without having a proper lookout thereon to warn employees, including deceased, in the yards of its approach. There was also evidence tending to show that this backing movement, at the particular time and after the cabooses had been pushed onto the Sullivan track, was unnecessary and unusual. And we think that the questions whether said crew or the members thereof were guilty of negligence, and whether their negligence was the proximate cause of the deceased\u2019s death, were questions which were peculiarly within the province of a jury to determine, under all the facts and circumstances in evidence.\nCounsel also contend that the evidence discloses that the death of the deceased was caused solely by his own negligence in not looking and seeing the approaching engine. And counsel argue, in substance, that, when Hart told him that he might \u201cline up the switches\u201d and that \u201cwe were going in on the long track to stay there,\u201d deceased was warned in advance that the engine, after pushing the cabooses onto the Sullivan track, would immediately back onto the long track and go as far south as to pass the switches. We do not think that there is any substantial merit in the contention or argument. In our opinion it was for the jury to say, under all the facts and circumstances in evidence, whether or not the deceased at and immediately before the time of his death was in the exercise of ordinary care for his own safety. By their verdict, after being properly instructed by the court, they determined that he was not guilty of contributory negligence at said time, and we are not disposed to disturb the verdict upon the ground urged.\nCounsel further contend that \u201cunder the undisputed evidence, viewed in the light most favorable to plaintiff, the death of decedent is shown to have been the result of a risk which he 'must be held to have assumed as a matter of law.\u201d And counsel argue in their brief that, \u201cif the approaching engine constituted a risk, it was a risk which Carpenter himself created by choosing the moment when the engine was nearest to the switch as the time for throwing it, and by failing to heed Hart\u2019s warning to wait until \u2018after we get through, \u2019 and by failing to use his senses of sight and hearing or by placing himself in a position where he could not use them.\u201d We do not think there is any merit in the contention or argument. There was no evidence that Carpenter had knowledge that the engine, after having put the cabooses on the Sullivan track, would then immediately back so far south on the long track as to pass the switches and the place where he properly was at work. And there was evidence tending to show that the backing of the engine for so great a distance at the particular time was an unusual and unnecessary movement. In Davis v. Crane, 12 Fed. (2d) 355, 356, it is said: \u201cAn employe assumes the ordinary risks incident to the business in which he engages, but does not assume extraordinary risks arising from the employer\u2019s negligence unless and until he is aware of the same and appreciates the danger therefrom, or unless, under the circumstances, they are so plainly observable that he is presumed to know them and to appreciate the danger.\u201d And in Chesapeake & Ohio Ry. Co. v. De Atley, 241 U. S. 310, 315, it is said: \u201cAccording to our decisions, the settled rule is not that it is the duty of an employee to exercise care to discover extraordinary dangers that may arise from the negligence of the employer or of those for whose conduct the employer is responsible, but that the employee may assume that the employer or his agents have exercised proper care with respect to his safety until notified to the contrary, unless the want of care and the danger arising from it are so obvious that an ordinarily careful person, under the circumstances, would observe and appreciate them.\u201d (See, also, Chicago, R. I. & P. Ry. Co. v. Ward, 252 U. S. 18, 22.)\nNo complaint is made of the amount' of the verdict and judgment or that the court erred in giving any instruction offered by plaintiff or in refusing to give any instruction offered by defendant.\nIn our opinion the judgment appealed from should be affirmed and such will be the order.\nAffirmed.\nKeener and Scanlan, JJ., concur.", "type": "majority", "author": "Mr. Presiding Justice - Gridley" } ], "attorneys": [ "McCordic, Dent & Freeman, for appellant.", "Joseph D. R\u00edan, for appellee; Frank Johnston, Jr., of counsel." ], "corrections": "", "head_matter": "Anya Carpenter, Administratrix of the Estate of John J. Carpenter, Deceased, Appellee, v. Grand Trunk Western Railway Company, Appellant.\nGen. No. 35,066.\nOpinion filed November 24, 1931.\nMcCordic, Dent & Freeman, for appellant.\nJoseph D. R\u00edan, for appellee; Frank Johnston, Jr., of counsel." }, "file_name": "0462-01", "first_page_order": 492, "last_page_order": 500 }