Ohio & Mississippi Railway Co. v. Bass

Appellate Court of Illinois

Ohio & Mississippi Railway Co. v. Bass

36 Ill. App. 126, 1890 Ill. App. LEXIS 80

DecidedAugust 27, 1890

StatusPublished

This text of 36 Ill. App. 126 (Ohio & Mississippi Railway Co. v. Bass) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Ohio & Mississippi Railway Co. v. Bass, 36 Ill. App. 126, 1890 Ill. App. LEXIS 80 (Ill. Ct. App. 1890).

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Opinion

Phillips, J.

Errors aro assigned as to the rulings of the court in the admission and exclusion of evidence and in instructions given by plaintiffs which, with the view we take of this case, we deem it unnecessary to consider at this time.

The evidence of the plaintiff conclusively shows that just previous to the injury he had knowledge of the fact that there was no handhold on the car, and in the absence of such handhold he states it was very unsafe to attempt to uncouple when in motion, and in their absence, an attempt to uncouple subjects the brakeman to unsual danger, great danger, as testified to by him. He was in control of the train and had a right to stop it, when the uncoupling could have been performed with safety.

The manner of performing the duty of uncoupling, he states, was left to his judgment, and the rule of the company with which he was familiar, required in cases of doubt to take the safe side. He had no right to act with recklessness, and for the injury resulting from his carelessness and recklessness hold the company responsible. The T. W. & W. Ry. Co. v. Eddy, 72 Ill. 138; The U. Ry. & T. Co. v. Leahy, 9 Ill. App. 353; City of Bloomington v. Read, 2 Ill. App. 542; The I. C. R. R. Co. v. Jewell, 46 Ill. 99; The C. & A. R. R. Co. v. Monroe, 85 Ill. 25; The C., B. & Q. R. R. Co. v. Dewey, 26 Ill. 255; The C. & N. W. R. R. Co. v. Cass, 73 Ill. 394.

The absence of handholds on the car was known to him; he knew it was dangerous and unsafe to make a running switch under the circumstances, and having control and exercising his own judgment of the manner of performing the duty, the injury received must be viewed as the result of his own want of proper care, disentitling him to any action therefor. C. & A. R. R. Co. v. Rush, 84 Ill. 570. The motion for a newtrial should have been allowed. The judgment is reversed and the cause will not be remanded.

Judgment reversed.

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Phillips, J.

Errors aro assigned as to the rulings of the court in the admission and exclusion of evidence and in instructions given by plaintiffs which, with the view we take of this case, we deem it unnecessary to consider at this time.

The evidence of the plaintiff conclusively shows that just previous to the injury he had knowledge of the fact that there was no handhold on the car, and in the absence of such handhold he states it was very unsafe to attempt to uncouple when in motion, and in their absence, an attempt to uncouple subjects the brakeman to unsual danger, great danger, as testified to by him. He was in control of the train and had a right to stop it, when the uncoupling could have been performed with safety.

The manner of performing the duty of uncoupling, he states, was left to his judgment, and the rule of the company with which he was familiar, required in cases of doubt to take the safe side. He had no right to act with recklessness, and for the injury resulting from his carelessness and recklessness hold the company responsible. The T. W. & W. Ry. Co. v. Eddy, 72 Ill. 138; The U. Ry. & T. Co. v. Leahy, 9 Ill. App. 353; City of Bloomington v. Read, 2 Ill. App. 542; The I. C. R. R. Co. v. Jewell, 46 Ill. 99; The C. & A. R. R. Co. v. Monroe, 85 Ill. 25; The C., B. & Q. R. R. Co. v. Dewey, 26 Ill. 255; The C. & N. W. R. R. Co. v. Cass, 73 Ill. 394.

The absence of handholds on the car was known to him; he knew it was dangerous and unsafe to make a running switch under the circumstances, and having control and exercising his own judgment of the manner of performing the duty, the injury received must be viewed as the result of his own want of proper care, disentitling him to any action therefor. C. & A. R. R. Co. v. Rush, 84 Ill. 570. The motion for a newtrial should have been allowed. The judgment is reversed and the cause will not be remanded.

Judgment reversed.

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