{ "id": 5091159, "name": "George C. Kimel v. Chicago, Burlington & Quincy R. R. Co.", "name_abbreviation": "Kimel v. Chicago, Burlington & Quincy R. R.", "decision_date": "1894-10-15", "docket_number": "", "first_page": "244", "last_page": "248", "citations": [ { "type": "official", "cite": "55 Ill. App. 244" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "51 Ill. App. 507", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5116702 ], "opinion_index": -1, "case_paths": [ "/ill-app/51/0507-01" ] }, { "cite": "108 Ill. 288", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 831474 ], "opinion_index": -1, "case_paths": [ "/ill/108/0288-01" ] }, { "cite": "122 Ill. 369", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5391234 ], "opinion_index": -1, "case_paths": [ "/ill/122/0369-01" ] }, { "cite": "52 N. W. Rep. 942", "category": "reporters:state_regional", "reporter": "N.W.", "opinion_index": -1 }, { "cite": "15 S. E. Rep. 162", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": -1 }, { "cite": "146 Ill. 540", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3067671 ], "opinion_index": -1, "case_paths": [ "/ill/146/0540-01" ] }, { "cite": "52 Ill. 183", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5300802 ], "weight": 2, "opinion_index": -1, "case_paths": [ "/ill/52/0183-01" ] }, { "cite": "45 Ill. 197", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 424991 ], "weight": 2, "opinion_index": -1, "case_paths": [ "/ill/45/0197-01" ] }, { "cite": "114 Ill. 57", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2871175 ], "opinion_index": 0, "case_paths": [ "/ill/114/0057-01" ] }, { "cite": "108 Ill. 576", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 831466 ], "opinion_index": 0, "case_paths": [ "/ill/108/0576-01" ] }, { "cite": "44 Ill. App. 535", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5064449 ], "opinion_index": 0, "case_paths": [ "/ill-app/44/0535-01" ] } ], "analysis": { "cardinality": 451, "char_count": 7493, "ocr_confidence": 0.488, "pagerank": { "raw": 4.666970501906556e-08, "percentile": 0.2929686248117168 }, "sha256": "8c06187128197a2efef7ca0e5950ccd5658b21a826496f968dc5979b88f98390", "simhash": "1:a6914ad45b0eaec8", "word_count": 1356 }, "last_updated": "2023-07-14T16:55:31.699098+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "George C. Kimel v. Chicago, Burlington & Quincy R. R. Co." ], "opinions": [ { "text": "Mr. Presiding Justice Shepard\ndelivered the opinion of the Court.\nUpon the trial of this cause which was an action incase for a personal injury received by the plaintiff who was an employe of the defendant, the court at the conclusion of the plaintiff\u2019s case sustained defendant\u2019s motion to exclude the evidence, and instructed the jury to find a verdict for the defendant, which was done and a judgment entered accordingly.\nThe evidence tended to show, and counsel substantially agree, that the car yards of the defendant known as the Hawthorne Yards, in, or adjacent to Chicago, are divided into two divisions known as yard \u201cA\u201d at the western extremity and yard \u201c B \u201d at the eastern extremity, both of which yards are composed of a large number of tracks, and that the two divisions \u201cA\u201d and \u201cB\u201d are connected by a narrow neck where is situated a switch called the \u201c Diamond,\u201d a point where all the tracks from either direction come together. Trains that come in from the road first enter yard \u201cA\u201d where car inspectors are stationed to inspect the cars. If found to be out of repair the cars are either repaired in yard \u201cA,\u201d or sent to the shops as the nature of the case requires. A car marker in yard \u201cA\u201d also indicates by marks on the cars their proper distribution upon tracks in yard \u201cB.\u201d The inspection and order of\u2019 distribution being determined, such cars as are not to be repaired, are marked for appropriate distribution and are started upon what are known as \u201c gravity tracks \u201d inclining downward through the \u201c Diamond \u201d in the direction of and into yard \u201c B,\u201d where they are distributed upon the respective tracks for which they have been designated by the car marker. Cars intended for yard \u201c B \u201d are started on their downward course by a locomotive in yard \u201cA.\u201d\nThe downward inclination of the \u201cgravity tracks\u201d is slight, but is enough so that when cars are properly started eastward or downward they will retain this momentum sufficiently to carry them into their designated position in yard \u201c B.\u201d\nEngaged in the work of distributing cars there were men - and a locomotive in yard \u201cA,\u201d and a crew of catchers and couplers at the \u201cDiamond\u201d and in yard \u201cB.\u201d\nCatchers were men who were stationed at the \u201c Diamond \u201d and had among some other duties that of turning switches, and of mounting the moving cars as they came down the gravity track when they did not come too swiftly, and riding them in and braking them upon the tracks for which they were destined.\nThe plaintiff was a coupler stationed in yard \u201c B,\u201d and his duty was to couple together such cars as were switched upon the same track, from the gravity track, and in that wTay make up trains.\nWhile he was standing between a stationary car and a slowly approaching one for the purpose of coupling them together, another car came rapidly down upon the same track and struck with much force against the car which plaintiff was in the act of coupling Lo the stationary car, and his hand became crushed.\nThe car which was the occasion of the injury came down one of the gravity tracks in the usual manner, and when it reached the \u201c Diamond,\u201d it was boarded by one of the catchers, who, after climbing up on the car, found the brake was out of order, the chain to the brake being absent, and he then climbed down and jumped off, leaving the car to proceed by its own momentum until it struck against the car which plaintiff was about to couple to the stationary one.\nUnder such circumstances, we think, it was error to instruct the jury to find for the defendant.\nWhether the yardmaster, inspectors and other men who worked in yard \u201c A,\u201d and operated the locomotive in that yard were fellow-servants with the plaintiff, was a question of fact for the jury to find.\nIt was within the province of the court to define to the jury what constitutes the relation of fellow-servants, but not to determine the fact. C. & N. W. Ry. Co. v. Tuitte, 44 Ill. App. 535; C. & N. W. Ry. Co. v. Moranda, 108 Ill. 576; Rolling Mill Co. v. Johnson, 114 Ill. 57.\nThere is also a rule of law that a railroad company may not conduct its business in negligent disregard of the safety of its employes, and it was a question of fact whether the absence of the brake chain was known to the company, or might have been known, by the exercise of reasonable diligence in inspecting the car, and if known, or might have been known, whether what was done was a negligent handling or managing of the car in its defective condition; and it was also a question of \"fact for the jury whether the plaintiff was in the exercise of requisite care on his part.\nWhat the verdict of a jury should be upon' the state of facts shown, we purposely intimate no opinion concerning. We only decide that under the pleadings the case as made by the plaintiff was one that ought to have gone to the jury. Ee versed and remanded.", "type": "majority", "author": "Mr. Presiding Justice Shepard" } ], "attorneys": [ "Brief fob Plaintiff in Error, King & Gross, Attorneys; Andrew J. Hirsohl, of Counsel.", "Chester M. Dawes and Frank O. Lowden, attorneys for the defendant in error." ], "corrections": "", "head_matter": "George C. Kimel v. Chicago, Burlington & Quincy R. R. Co.\n1. Fellow-Servants\u2014Who Are\u2014A Question of Fact.\u2014Whether a yardmaster, inspectors or other men in the employ of a railroad company are fellow-servants with another person in the same employ, is a question for a jury.\n2. Same\u2014Province of the Court to Define What Is.\u2014It is within the province of the court to define to the jury what constitutes the relation of fellow-servants, but not to determine the fact.\n3. Negligence\u2014What Acts Are\u2014Questions for the Jury.\u2014A railroad company can not legally conduct its business in negligent disregard of the safety of its employes. It is a question of fact whether a certain defect in a car was known to it or might have been known by the exercise of reasonable diligence in inspecting the car, and if so, whether what was done was a negligent handling or managing of the car in its defective condition.\nIMeinorandmn.\u2014Action for personal injuries. In the Superior Court of Cook County; the Hon. John Barton Patne, Judge, presiding. Declaration in case; plea, not guilty; trial by jury; verdict for the defendant by instruction of the court; error by plaintiff. Heard in this court at the October term, 1894,\nEeversed and remanded.\nOpinion filed October 15, 1894.\nBrief fob Plaintiff in Error, King & Gross, Attorneys; Andrew J. Hirsohl, of Counsel.\nA railroad company is bound to furnish a safe road, and sufficient and safe machinery and cars, and whoever sees or should see to this, is a representative of the company. C. & N. W. R. R. v. Swett, 45 Ill. 197. And this includes the obligation to keep in repair. I. C. R. R. Co. v. Welch, 52 Ill. 183. This duty can not be delegated. Libby v. Sherman, 146 Ill. 540.\nA brakeman who has been but two months on the road is not presumed to know the defects. Illinois C. R. R. Co. v. Welch, 52 Ill. 183.\nThe question of fellow-servant, vel non, should be left to the jury, and where the courts have seen fit to give expression to their views as matters of law they have held that in the following relations the parties concerned were not fellow-servants:\nYard boss and brakeman. Daniel v. C. & O. R. R. (W. Va.) 15 S. E. Rep. 162. Inspector and baggageman. Dewey v. Detroit (Mich.), 52 N. W. Rep. 942; U. P. R. R. Co. v. Snyder, 14 U. S. S. C. R. 756. Engineer and car inspector. C. & A. R. R. v. Hoyt, 122 Ill. 369. Foreman at lumber, pile and man under him. C. & A. R. R. v. May, 108 Ill. 288. Repairer and fireman. C. & N. W. R. R. Co. v. Swett, 45 Ill. 197. Car switchers and car loaders. Wenona v. Holmquist, 51 Ill. App. 507.\nChester M. Dawes and Frank O. Lowden, attorneys for the defendant in error." }, "file_name": "0244-01", "first_page_order": 240, "last_page_order": 244 }