{ "id": 5083311, "name": "Illinois Central Railroad Company v. Frank Pummill, Administrator, etc.", "name_abbreviation": "Illinois Central Railroad v. Pummill", "decision_date": "1895-03-23", "docket_number": "", "first_page": "83", "last_page": "87", "citations": [ { "type": "official", "cite": "58 Ill. App. 83" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "55 Ill. 493", "category": "reporters:state", "reporter": "Ill.", "opinion_index": 0 }, { "cite": "58 Ill. 272", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5235507 ], "opinion_index": 0, "case_paths": [ "/ill/58/0272-01" ] }, { "cite": "107 Ill. 48", "category": "reporters:state", "reporter": "Ill.", "opinion_index": 0 }, { "cite": "36 Ill. App. Rep. 128", "category": "reporters:state", "reporter": "Ill. App.", "opinion_index": 0 }, { "cite": "119 Ill. 51", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2900689 ], "opinion_index": 0, "case_paths": [ "/ill/119/0051-01" ] }, { "cite": "72 Ill. 138", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2710939 ], "opinion_index": 0, "case_paths": [ "/ill/72/0138-01" ] }, { "cite": "46 Ill. 99", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5297083 ], "opinion_index": 0, "case_paths": [ "/ill/46/0099-01" ] }, { "cite": "148 Ill. 34", "category": "reporters:state", "reporter": "Ill.", "opinion_index": 0 }, { "cite": "108 Ill. 117", "category": "reporters:state", "reporter": "Ill.", "opinion_index": 0 } ], "analysis": { "cardinality": 528, "char_count": 10375, "ocr_confidence": 0.508, "pagerank": { "raw": 6.173274113081918e-08, "percentile": 0.38319280390478366 }, "sha256": "cb11e482a2035da25bb61a67a14ecdc6451cef51df5489a6bf812d5ebc67259a", "simhash": "1:7ef16e5a5e1a8641", "word_count": 1812 }, "last_updated": "2023-07-14T20:52:30.003237+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Illinois Central Railroad Company v. Frank Pummill, Administrator, etc." ], "opinions": [ { "text": "Hr Justice Green\ndelivered the opinion oe the Court.\nPlaintiff\u2019s intestate was a brakeman in the employ of appellant at the time of his death, which occurred in January, 1893. He was then acting as head brakeman on appellant\u2019s freight train which loft Centralia about 11 o\u2019clock p. m., January 30th, and on its way north stopped at Vandalia about 1 o\u2019clock a. m. of January 31st. At that point the deceased was ordered by the conductor in charge of the train, to assist in switching the car next the engine, from the main track to a side track west of it, by the method known as a \u201c drop \u201d or \u201c running switch.\u201d Deceased was on the engine, and obeying the direction given him, it became his duty to pull the coupling pin out of the link holding the car and engine together, then signal the engineer that the car was uncoupled, which he did, and get on top of the car to be set out, set the brake on it, and stop it on the side track. In attempting to get on the car, as there is evidence to show, he fell from it with his head close to the rail, and the top of his skull was crushed and his instant death, resulted. This suit was brought by the administrator of his estate, under the statute, to recover damages for his death, averred in the declaration to have been caused by the negligence of appellant in placing the said freight car in the train, with the ladder, upon which brakemen could climb with feet and hands upon and off said car, so out of repair, and the rungs thereof so mashed in, that no foot or hand hold was afforded its servants, handling said car to climb upon or off said car. Avers defendant\u2019s knowledge, and want of knowledge of deceased of such defective condition of the ladder; the order of conductor to deceased to assist in setting out said car; that deceased in obedience to said order uncoupled said car from the engine, and while in the exercise of due care for his own safety, attempted to climb upon said car, and that by reason of the defective condition of said ladder, he slipped and fell and was run over by said car and killed. The jury found defendant guilty and assessed plaintiff\u2019s damages at $2,000. Defendant\u2019s motion for a new trial was overruled and judgment was entered on the verdict for the damages assessed and costs of suit, and defendant took this appeal.\nIn the view we take of this case, we deem it unnecessary to notice all the points set forth as grounds for reversal, but will confine ourselves to the consideration of those most material. One of these is, that the court erred in admitting improper testimony on behalf of appellee to show that deceased was an industrious, sober and prudent man. In this kind of case, where no one actually saw how the accident occurred, and the cause and manner of it is established by surrounding circumstances proven on the trial, evidence that deceased was habitually prudent, cautious and temperate, is admissible for the jury to consider, together with the instinct of self-preservation which a sane person is presumed to possess, in determining whether he was exercising care for his personal safety. C., R. I. & P. Ry. Co. v. Clark, 108 Ill. 117; I. C. R. R. Co. v. Nowicki, 148 Ill. 34. In the latter case it is said: \u201c Proof that deceased was a sober, industrious man is admissible, where there was no eye witness to the killing, as tending to show he was in the exercise of due care. The court did not err in admitting the evidence objected to. The evidence to show that plaintiff and the family of deceased were dependent upon the labor of defendant for support, objected to by defendant, was excluded by the court, and the jury were told to pay no attention to it. The error, if any, was thus cured.\u201d\nIt is also urged that the court erred in making some remarks, while passing upon an objection made to a question asked on behalf of appellant. We have examined the record and discover no serious objection to the remarks complained of. It is also insisted that the evidence fails to show the death of plaintiff\u2019s intestate resulted from the negligence of defendant, as charged in either count of the declaration, or that deceased was in the exercise of due care for his personal safety, as therein averred. As this case is to be again tried, we refrain from commenting upon the evidence, further than to say there was direct and circumstantial evidence tending to prove the cause of action as averred in the declaration, and as to the material fact that deceased was exercising reasonable care as averred, the evidence was conflicting. But in our judgment the court erred in giving the jury certain instructions on behalf of plaintiff, calculated to mislead the jury, to the prejudice of defendant.\nIn the second, third, eighth, ninth, tenth, eleventh and fourteenth instructions given for plaintiff, and in each of them, the jury are informed the plaintiff had the right to recover if deceased was a brakeman on defendant\u2019s freight train, in which defendant put a box freight car that had a defective rung in the ladder, by which deceased, in the discharge of his duty, would have to ascend said car, and if, by reason of said defect, while performing such duty and in the exercise of due care and caution for his own safety, deceased attempted to climb upon said car by means of said defective ladder, and by reason of such defect fell from said car and was run over and killed, provided defendant had notice of said defect, or might have known it by the exercise of a reasonable degree of diligence, and further believe that deceased did not know of the defect in the ladder. In each of these instructions, the duty of deceased to exercise reasonable diligence to inform himself of the condition of the ladder is ignored, and that of defendant is fully set forth. The jury would therefore have understood the law to be that a servant was not required , to exercise any care or diligence to ascertain the condition of machinery, tools or appliances he was necessarily required to use, in performing the work he contracted to perform. This is not the law. The relative and reciprocal duties of master and servant have been defined and announced in repeated decisions of our Supreme Court in cases like this, and are quite well known to the profession.\nA railroad company will not be held liable for injury to its servant in the course of his employment, when such injury resulted from his neglect to perform his duty, the performance of which might have avoided the accident. I. C. R. R. Co. v. Jewel, Adm\u2019x, 46 Ill. 99.\nIf an employe is in constant use of an appliance, with an opportunity to know, by the exercise pf reasonable diligence, its defective condition, he is bound to use that diligence and not use the defective appliance, but report its condition to the company. T. W. & W. Ry. Co. v. Eddy, 72 Ill. 138; C. & A. R. R. Co. v. Bragonier, 119 Ill. 51; O. & M. Ry. Co. v. Bass, 36 Ill. App. Rep. 128.\nThe law does not require positive proof of the exercise of due care and diligence in this regard by the servant, but that may be inferred from certain circumstances in evidence where no one saw the accident. Mo. Furnace Co. v. Abend, 107 Ill. 48; C., B. & Q. R. R. Co. v. Gregory, 58 Ill. 272; C. & N. W. R. R. Co. v. Jackson, 55 Ill. 493. There was evidence, direct and circumstantial, tending to show that deceased did not exercise a reasonable care and diligence to ascertain the defective condition of the ladder he was required to use, but if the jury followed the rule announced in the instructions criticised, this omission by deceased to perform an imperative duty, and the evidence tending to prov\u00e9 such negligence would be regarded by them as wholly immaterial to the great prejudice of defendant.- The giving of said instructions ivas an error, which requires us to reverse the judgment. The modification of defendant\u2019s ninth instruction and refusing to give the eighteenth and nineteenth instructions on its behalf was proper.\nFor the reasons given above the judgment is reversed and the cause remanded,", "type": "majority", "author": "Hr Justice Green" } ], "attorneys": [ "Farmer, Brown & Turner, attorneys for appellant; James Fentress, of counsel.", "Henry & Guinn, attorneys for appellee." ], "corrections": "", "head_matter": "Illinois Central Railroad Company v. Frank Pummill, Administrator, etc.\n1. Evidence\u2014Where No One Witnessed the Death.\u2014In action for damages sustained by the death of a kinsman from negligence where no one saw the accident causing the death occur, and the cause and manner of such death is established by surrounding circumstances on the trial, evidence that the deceased was habitually prudent, cautious and temperate is admissible for the jury to consider, together with the instinct of self-preservation which a sane person is presumed to possess, in determining whether the deceased was exercising care for his personal safety. ^\n2. Instructions\u2014Diligence by Deceased to be Informed as to Condition of Appliances.\u2014In an action for damages occasioned by the death of a kinsman from negligence in failing to keep appliances in safe repair, an instruction which ignores the duty of the deceased to exercise reasonable diligence to inform himself of the condition of such appliances, is erroneous.\n3. Railroad Companies\u2014 When Not Liable for Personal Injuries.\u2014 A railroad company will not' be held liable for injury to its servant in the course of his employment when such injury results from his neglect to perform his duty, the performance of which might have avoided the accident.\n4 Same \u2014Employes to Use Diligence\u2014Defective Appliances.\u2014If an employe is in constant use of an appliance, with an opportunity to know by the exercise of reasonable diligence of its defective condition, he is bound to use that diligence and not use the defective appliance but report its condition to the company.\n5. Due Care\u2014Evidence of the Exercise of\u2014-Deceased Persons.\u2014The law does not require positive proof of the exercise of due care and diligence in ascertaining the condition of appliances by the servant. In case of death, the fact may be inferred from circumstances in evidence, where no one saw the accident.\nTrespass on Ihe Case.\u2014Death from negligence. In the Circuit Court of Fayette County; the Hon. Jacob Fauke, Judge, presiding. Declaration incase; plea of not guilty; trial by jury; verdict for plaintiff; appeal by defendant. Heard in this court at the August term, 1894.\nReversed and remanded.\nOpinion filed March 23, 1895.\nFarmer, Brown & Turner, attorneys for appellant; James Fentress, of counsel.\nHenry & Guinn, attorneys for appellee." }, "file_name": "0083-01", "first_page_order": 79, "last_page_order": 83 }