{
  "id": 5298955,
  "name": "Anna B. O'Day v. Chicago & Alton R. R. Co.",
  "name_abbreviation": "O'Day v. Chicago & Alton R. R.",
  "decision_date": "1901-11-01",
  "docket_number": "",
  "first_page": "632",
  "last_page": "637",
  "citations": [
    {
      "type": "official",
      "cite": "97 Ill. App. 632"
    }
  ],
  "court": {
    "name_abbreviation": "Ill. App. Ct.",
    "id": 8837,
    "name": "Illinois Appellate Court"
  },
  "jurisdiction": {
    "id": 29,
    "name_long": "Illinois",
    "name": "Ill."
  },
  "cites_to": [],
  "analysis": {
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  "last_updated": "2023-07-14T17:10:34.341512+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "Anna B. O\u2019Day v. Chicago & Alton R. R. Co."
    ],
    "opinions": [
      {
        "text": "Mr. Justice Waterman\ndelivered the opinion of the court.\nThe plaintiff, so far as appears, was at no time in the service of the defendant nor did the defendant have notice of her-presence in or about its yards.\nThe only information that the defendant had that cast upon it any duty with respect to her was that car cleaners at times worked in its yard cleaning Pullman cars there left for that purpose; it was not informed that she or any persons were in the train which it moved. Such being the case, she being, as regards the defendant, a licensee only, the duty it owed to her was not to be reckless of the safety of her as one of those who might, in the discharge of duty, be in or coming out of Pullman cars; to do what it did with due regard to the possibility that Pullman cars might be occupied by cleaners. Bolch v. Smith, 7 Hurl. & Norman, 736-743.\nWhether such duty required the defendant before moving such cars to give notice by ringing a bell or sounding a whistle, or whether the defendant was required to move-the cars without \u201c jerk or jar \u201d would, in the absence of any evidence as to rule or custom known to her, seem to be questions of fact.\nThe cars were nofc on a track from which passengers were received or discharged, but on a side or storage track. The plaintiff was engaged in work manifestly hazardous, as is all work in a railroad yard, and she was bound to look out and use as much care and caution for her safety as the manifest hazards, uses and business of the place required.\nFour witnesses testify that the bell was ringing as the engine approached the cars and made connection therewith. The plaintiff and one witness testify that they heard no bell. The plaintiff alone testifies that \u201c engine bumped train and threw her.\u201d Jennie Wilcox testified that she \u201cheard the engine come and bump the train and knew it had moved.\u201d No one, save the plaintiff, and Louis Hartweg, saw the accident. He declares that the bell wras ringing and says: \u201c Saw her when she fell; train was moving south; the train started to move very slow.\u201d\nThe plaintiff testified that she \u201c stepped on platform; had a pail of water and a basket on my arm; took hold of railing with my hand; engine bumped train; threw me and struck back on steps.\u201d It appears to have been snowing at the time of the accident. That there is usually a shock or jar when an engine connects with a train is well known; whether the \u201c bump \u201d in this case was more than is usual or more than was reasonably avoidable was not shown: In what way the failure to ring a bell, if such failure there were, contributed to the accident was not shown. The plaintiff\u2019s witness, Jennie Wilcox, cleaning cars with the \" plaintiff, does not speak of the \u201c bump \u201d as anything severe, unusual, or avoidable. But the plaintiff does say that the \u201c bump \u201d threw her on her back.\nThe rules of the Alton railroad, for which the plaintiff was not working and of which she had not been informed, shodld not have been admitted in evidence. Nor should the thirteenth instruction have been given at the instance of the defendant. Hpon certain persons, as common carriers, the law imposes the highest degree of diligence. Ordinarily the duty or obligation as to care is determined by the circumstances. It can not be said that as a matter of law the presence of danger and impending disaster \u201c involves the exercise of the highest degree of vigilance and care \u201d for one\u2019s own safety. Man is ever in the presence of danger, and ofttimes of disaster, without the danger being very great or his having notice of either, hi or do we regard the following instruction one that should have been given:\n\u201c The court instructs the jury that the requirement of the law that the plaintiff shall prove each and every material allegation in her declaration, or some count thereof, before she can recover, is one of the requirements that is as binding upon you in this case as any other obligation; and even in this case, if you should believe that the testimony is evenly balanced, under the law and your oaths, your verdict should be for the defendant.\u201d\nThe definition of ordinary care \u201c or reasonable care \u201d is that care which \u201c prudent persons usually exercise; \u201d as applied to a particular case, is that care which prudent persons would exercise under like circumstances. v\nThe seventh instruction was faulty in making use of the term \u201c ordinary persons \u201d instead of \u201c prudent persons.\u201d hi or should instructions have been given speaking of risk, assumed by the plaintiff.\nAs the plaintiff was never in the employment of the defendant, neither, with respect to the.other, assumed any risk.\nThe plaintiff knew that she worked in a perilous place, that the cars she cleaned were liable to be moved at any moment, and she was bound to exercise such care for her safety as the obvious dangers of the place required.\nThe plaintiff did not submit any special interrogations to be answered by the jury; the defendant did, but they were not given; the court of its own motion prepared and submitted three, w'hich the jury did not answer.\nThe plaintiff did not ask the court to direct the jury to retire and answer their questions, but merely excepted to the action of \u201cthe jury in failing to answer\u201d the special questions.\nThis action of the jury can not be assigned for error, nor can the action of the court in failing to do what it was never asked.\nNotwithstanding the errors pointed out, we think that the judgment should be affirmed.\nThe plaintiif made no case entitling her to a verdict. The evidence that the defendant was negligent was not such that reasonable men could come to the conclusion that she had established by a preponderance of the evidence the allegations of her declaration. Affirmed.",
        "type": "majority",
        "author": "Mr. Justice Waterman"
      }
    ],
    "attorneys": [
      "W. Clyde Jones and Keene H. Addington, attorneys for plaintiff in error.",
      "Scofield & Brown, attorneys for defendant in error."
    ],
    "corrections": "",
    "head_matter": "Anna B. O\u2019Day v. Chicago & Alton R. R. Co.\n1. Railroad Companies \u2014 Duty Owed to Car-cleaners of Other Companies as Mere Licensees. \u2014 The duty owed by a railroad company to a person not in its employ, but engaged in cleaning the cars of another company left upon its track by permission for that purpose, is not to be reckless of the safety of such person.\n2. Ordinary Care \u2014 Defined.\u2014The definition of ordinary or reasonable care is that care which prudent persons usually exercise, or, as applied to a particular case, is that care which a prudent person would exercise under like circumstances.\n3. Same \u2014 Degree of Care to be Exercised by Persons Working in Dangerous Places.\u2014 Persons who work in dangerous places are bound to exercise such care for their safety as the obvious dangers of the place require.\n4. Error \u2014 Not to be Assigned for Failing to do that Which the Court is Not Ashed to do. \u2014 The action of a court can not be assigned for error in failing to do that which it was not asked to do.\nTrespass on the Case, for personal injuries. Error to the Circuit Court of Cook County; the Hon. John Gibbons, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900.\nAffirmed.\nOpinion filed November 1, 1901.\nAnna B. 0\u2019JDa.y, the plaintiff below and plaintiff in error here, entered into the employ of the Pullman Palace Car Company some four or five weeks prior to the date of the injury which she sustained on February 6, 1895, at about ten o\u2019clock a. m. Her services during this period were not continuous, but she served from time to time in a substitute capacity, assisting in the cleaning of sleeping cars owned, by the car company and in use by various railroad companies. At first she was assigned to duty in the \u201cyards\u201d of the Santa Fe Railroad Company, and then, on the seventh day preceding her injury, to those of the Chicago & Alton Railroad Company.\nOn the morning of the day and at about the hour mentioned, plaintiff in error had been engaged in cleaning one of the sleeping cars which were in use by the Chicago & Alton Railroad Company, on what was known as its \u201c St. Louis train.\u201d This entire train, consisting of five, six or seven cars, according to the varying testimony of witnesses, on the morning in question had, in pursuance of the daily custom, been placed on a sidetrack in the \u201cyards\u201d of the Chicago & Alton Railroad Company for the purpose of being cleaned. These \u201c yards,\u201d located at Harrison street and under what is commonly called \u201c the viaduct,\u201d contain a series of ten or more parallel tracks, which are supplemented on the west by four additional ones which are known as the \u201c main tracks.\u201d These yard tracks were used for the purpose of placing cars there to be cleaned, watered and repaired and otherwise put in condition for re-use by the Chicago & Alton Railroad Company. On the day in question these \u201cyard tracks\u201d were crowded with trains which lay so close, one to the other, that \u201c their roofs almost touched.\u201d The plaintiff in error had just stepped from the inside of one of the sleepers on which she had been working to its platform, wLich was the second one from the north, and a distance of about two hundred and forty feet from the extreme platform at the south end of the train. On one arm she carried a basket of rags and carried with the hand of the other, a bucket of water; while she grasped with her hand the hand-rail of the car, the train was moved by a switch engine approaching from the south, and she was thrown and injured. The brief of plaintiff in error says:\n\u201c The theory of plaintiff in error upon which the claim of recovery is based is:\nFirst. That appellee owed to appellant the duty of a warning before it moved the train on which she was employed; if not by sending an employe, at least h)?- the ringing of a bell or the sounding of a whistle; and\nSecond. That irrespective of the duty to warn, the moving of the train should ha.ve been accomplished without unnecessary jar, and that the contest below on the facts narrowed itself to the following issues:\n(1) Was the bell rung?\n(2) Was the train moved without a jerk or a jar ?\n(3) Was the plaintiff in error thrown or did she slip?\n(4) Was plaintiff in error guilty of contributory negligence ? \u201d\nW. Clyde Jones and Keene H. Addington, attorneys for plaintiff in error.\nScofield & Brown, attorneys for defendant in error."
  },
  "file_name": "0632-01",
  "first_page_order": 658,
  "last_page_order": 663
}