{ "id": 2602546, "name": "Chicago & Western Indiana R. R. Co. v. Theodore Ketchem", "name_abbreviation": "Chicago & Western Indiana R. R. Co. v. Ketchem", "decision_date": "1902-01-21", "docket_number": "", "first_page": "660", "last_page": "664", "citations": [ { "type": "official", "cite": "99 Ill. App. 660" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "103 Ill. 550", "category": "reporters:state", "reporter": "Ill.", "pin_cites": [ { "page": "551" } ], "opinion_index": 0 }, { "cite": "56 Fed. Rep. 1014", "category": "reporters:federal", "reporter": "F.", "case_ids": [ 6723638 ], "opinion_index": 0, "case_paths": [ "/f/56/1014-01" ] }, { "cite": "116 Mo. 81", "category": "reporters:state", "reporter": "Mo.", "case_ids": [ 991926 ], "opinion_index": 0, "case_paths": [ "/mo/116/0081-01" ] }, { "cite": "78 Ill. App. 141", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5792159 ], "opinion_index": 0, "case_paths": [ "/ill-app/78/0141-01" ] }, { "cite": "179 Ill. 91", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5546442 ], "opinion_index": 0, "case_paths": [ "/ill/179/0091-01" ] } ], "analysis": { "cardinality": 555, "char_count": 10059, "ocr_confidence": 0.543, "pagerank": { "raw": 1.0389509854784974e-07, "percentile": 0.550250999189528 }, "sha256": "82949b4b3b2a2785b800df4dd4fb0156639cb435abb53c6db41be470baa23a97", "simhash": "1:a3211ea22b8772b2", "word_count": 1792 }, "last_updated": "2023-07-14T18:49:57.366340+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Chicago & Western Indiana R. R. Co. v. Theodore Ketchem." ], "opinions": [ { "text": "Mr. Justice Adams\ndelivered the opinion of the court.\nIt is not claimed by appellee\u2019s counsel, and in view of the evidence can not be claimed, that the brakeman, O\u2019Brien, had express authority to remove trespassers from the train, but counsel claim that the brakeman\u2019s authority so to do was within the scope of his employment as brakeman, and that the jury were warranted in so finding, and cites decisions of other States to that effect. But, whatever may be the law in other States, we think it conclusively settled in this State, that such authority can not be assumed to be possessed by a brakeman, and that in the absence of proof, it can not be inferred or implied from the nature of his employment. Ill. Cen. R. R. Co. v. King, 179 Ill. 91; C., R. I. & P. Ry. Co. v. Brackman, 78 Ill. App. 141.\nIn the first of the cases cited, a trespasser on a freight train was injured by the willful and apparent malicious conduct of a brakeman in pulling him from the train. The following instruction was given by the trial court:\n\u201c The court instructs you that if you believe, from the evidence, that the injury complained of was wantonly and willfully inflicted, as charged in the declaration, then the plaintiff will be entitled to recover, although you may believe, from the evidence, that plaintiff was guilty of some negligence.\u201d\nCommenting on this instruction, the court say:\n\u201c This instruction is objected to because it purported to state to the jury the conditions under which plaintiff would be entitled to recover and under which they should return a verdict for him, and omitted the requirement of proof that the brakeman was acting within the line of his duty or within the scope of his employment. The law can not assume, at least as to a subordinate employe on a train, who is not intrusted with the general management and control of it, that he has control over passengers or persons attempting to ride, or that he is intrusted by his employer with authority in respect to them or to eject them, and it was necessary to make the proof. (3 Elliott on Railroads, Sec. 1255; Farber v. Missouri Pacific Railroad Co., 116 Mo. 81; Corcoran, v. Concord and M. Railroad Co., 56 Fed. Rep. 1014.)\u201d\n\u201d The authorities cited by the court fully sustain the text of the opinion.\n\u00a1Numerous authorities are cited by appellant\u2019s counsel in line with the opinion of the Supreme Court quoted supra, to which we think it unnecessary to refer. The case in 78 Ill. App., cited supra, is similar to the present, and directly in point. O\u2019Brien not having been expressly authorized to remove trespassers from the train, and this not having been within the scope of his employment as brakeman, neither the operating railway company nor appellant is liable for his acts in the premises. For what one does not, either himself or by another, he is not responsible. Decisions in cases of assaults by railway employes on passengers riding on passenger trains have no application to such case as the present. 2 Wood on Railroads, 2d Ed., by Minor, Sec. 316; C. & E. R. R. Co. v. Flexman, 103 Ill. 550, 551.\nWe do not find it necessary to pass on the contention of appellant\u2019s counsel that if there is any liability of either railroad company, the Louisville, \u00a1New Albany & Chicago Railway Company is solely liable. Authority of O\u2019Brien to remove appellee from the train being an element essential to recovery, and there being no evidence tending to prove such authority, but, on the contrary, the evidence being that he had no such authority, it was error to submit the cause to the jury.\nThe judgment will be reversed.", "type": "majority", "author": "Mr. Justice Adams" } ], "attorneys": [ "G. W. Kretzinger and L. L. Smith, attorneys for appellant.", "Ritchie, Esher & Knobel, attorneys for appellee." ], "corrections": "", "head_matter": "Chicago & Western Indiana R. R. Co. v. Theodore Ketchem.\n1. Railroads \u2014 Liability for the Unauthorized Acts of Bralcemen.\u2014 It can not be assumed that a brakeman has authority to remove trespassers from cars from the mere fact of his employment as such, and a trespasser who sues for injuries received while being ejected by a brakeman must, in order to recover, show that the brakeman had authority from the company to remove him and do the act which caused the injury.\nTrespass on the Case, for personal injuries. Appeal from the Circuit Court of Cook County; the Hon. Edward F. Dunne, Judge, presiding. Heard in this court at the March term, 1901.\nReversed.\nOpinion filed January 21, 1902.\nStatement. \u2014 This is an appeal from a judgment rendered against appellant and the Louisville, New Albany & Chicago Ry. Co., now called the Mo non. Appellant\u2019s railway, consisting of four tracks, ran south from Twelfth street in the city of Chicago, to Forty-ninth street, but it did not itself operate the railway or control its operation. By agreement between appellant and the Louisville, New Albany & Chicago Railway Co., the latter company operated the railway. July 11, 1896, between four and five o\u2019clock p. m., a freight train of the last named company was running south on the rail way mentioned. The train consisted of twenty freight cars and the engine. The crew were the engineer and fireman, two brakemen and the conductor. Appellee testified that about Twenty-third Place, where the train stopped at a crossing, he climbed the ladder to the top of a car, about the middle of the train; that he was on the side of the car facing west, with his feet hanging down by the side of the car. Appellee testified that after he got on the car the train commenced running pretty fast, and that about Twenty-sixth or Twenty-seventh street he saw a man coming along; that he guessed there were a lot of boys on top, back of him, and the man was running them off; that the man came to him and said, \u201cYou get off here,\u201d and he said, \u201cI will not do it,\u201d when the man, applying to him an opprobrious epithet, said, \u201c I will show you whether you will get off or not,\u201d and kicked him, appellee, in the face and cut his lip, and he fell off, hit against a fence, bounded under the train and was injured. He testified that he heard that the name of the man who kicked him was Danger O\u2019Brien; that he had a jumper and a straw hat on, and that, since the alleged injury, he had seen him on the train acting as brakeman, and had seen him in the court room that morning. Conrad Hildebrand\u2019s evidence tended to corroborate the testimony of appellee about his being kicked off, but he did not know who kicked him. Eobert Gunn, the conductor of the train, died before the trial. There is no claim by appellee that any other than O\u2019Brien, who was rear brakeman of the train, interfered with appellee. His counsel affirmatively claims that O\u2019Brien caused the injury. Appellee was a trespasser on the train. This is not disputed. He himself testified that before getting on the train his intention was to goto Went-worth avenue and catch a street car. but he thought he would save five cents, and so he got on the train. O\u2019Brien testified that it was not his duty to put trespassers off the train unless directed so to do by the conductor, and that he never put a man off or ordered one off in his life. The trial took place October, 1900, and O\u2019Brien had quit the service of the L. N. A. & C. Ry. Co. in February, 1900. John O\u2019Halleran testified that he was head brakeman and O\u2019Brien hind or rear brakeman of the train; that he was sitting in the door on the east side of the train, second car from the engine, and O\u2019Brien was also on top on the same side of the train in the rear, on the car next in front of the calaboose, when the train reached Twenty-first street; that he never saw appellee before he saw him in the court, and that south of Twenty-first street no accident occurred of which he had any knowledge. Joseph Poole, towerman for the Ft. Wayne E. E. Co., testified that he saw O\u2019Brien on the northeast end of the last car in the train as it passed Twenty-eighth street, and that when the train reached Twenty-ninth street O\u2019Brien was sitting in the same place. The rules of the L. N. A. & C. Ry. Co. applicable to freight conductors and brakemen of freight trains were put in evidence, and among the duties of brakemen, the removal of trespassers from trains is not mentioned. In other words, this duty is not imposed on brakemen by the rules. J. S. McGarr, yardmaster of the operating company, testified ' that each member of the train crew had a copy of these rules; that it was his, McGarr\u2019s, duty to instruct as to the removal of trespassers from the trains; that he instructed the conductor to stop his train and put people off, when riding on the train, and that no instruction on the subject was given to brakemen. The witness, on cross-examination, testified as follows:\nQ. \u201c How many brakemen were in assistance to the conductor of that train?\u201d A. \u201cAlways two.\u201d\nQ. \u201cAnd it is their duty to assist the conductor in the operating of that train, of course, was it not?\u201d A. \u201cYes, sir.\u201d\nMr. Esher: \u201cYou mean to tell this jury and court that if a trespasser gets upon a passenger or freight train, there is no authority given to the train crew to eject that passenger or trespasser? \u201d\nA. \u201cHot while the train is in motion \u2014 they have no authority; the train must be stopped; our book of rules will show that.\u201d\nQ. \u201c You have stated the rule is the train must be stopped and the trespasser put off?\u201d A. \u201cYes, sir, of course.\u201d\nQ. \u201c Whose duty is it to put them off ? \u201d A. \u201c The conductor\u2019s.\u201d\nMr. Esher: \u201cHas the conductor any authority to instruct the brakemen to assist him in that regard ? \u201d A. \u201c He can call on his brakemen for assistance.\u201d\nAt the close of the evidence for the plaintiff, appellant\u2019s attorney moved the court to instruct the jury to find for the appellant, which motion the court overruled, and, at the close of all the evidence, moved the court to instruct the jury to find appellant not guilty, and tendered an instruction in writing to that effect, and the court overruled the motion, and refused to give the instruction. The jury found the defendants guilty and assessed the damages at the sum of $8,000, for which judgment was rendered.\nG. W. Kretzinger and L. L. Smith, attorneys for appellant.\nRitchie, Esher & Knobel, attorneys for appellee." }, "file_name": "0660-01", "first_page_order": 686, "last_page_order": 690 }