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I understand it, that the knowledge on the part of the plaintiff, which will prevent him from alleging negligence against a defendant, must be a knowledge under such circumstances as leads necessarily to the conclusion that the whole risk was voluntarily incurred or encountered by him; and I am wholly unable to see how this can be the case where there is only imputed knowledge, if even so much as this, and not knowl. edge in fact of the danger.

In addition to what I have said, I agree with the view of the evidence taken by the chancellor bearing upon this element of this case ; and I am of the opinion that it has not been shown that there is in fact ground for this defense; and besides it was not left to the jury, and there is no finding upon the subject. I do not know that anything was urged against the amount of damages awarded by the jury, and I am of the opinion that the verdict and the judgment entered thereon should be sustained.

Injuries to Employes-Construction of Statutes—"Any Person.”-A statute which gives a right of action against a railroad company “whenever any person shall die from any injury resulting from or occasioned by the negligence, unskillfulness, or criminal intent of any officer, agent, servant or employe, whilst running, conducting, or managing any locomotive, car, or train of cars," does not give a right of action for death happening through the negligence of a fellow-servant, if the master has not been negligent in employing unskillful or improper servants. The court in this case declared that the legislature did not intend to include under the term “any person" a fellow-servant injured by the negligence of a co-employe without any fault of the master. Proctor v. Hannibal & St. J. R. Co., 64 Mo. 112, overruling Schultz v. Pacific R. Co., 36 Mo. 13. See also Connor v. Chicago, R. I. & P. R. Co., 59 Mo. 185. A similar decision was rendered by the supreme judicial court of Maine in Carle v. Bangor & P. R. & C. Co., 43 Me. 269, the court deeming the purpose of the statute in that case to be to fix and establish the rights and obligations of railroad companies as between themselves and third persons, not their servants. In Sullivan v. Mississippi & M. R. Co., 11 Iowa 421, a statute entitled “ An act granting to railroad companies the right of way," which provided that “every railroad corporation shall be liable for all damages sustained by any person in consequence of any neglect of the provisions of this act, or of any other neglect of any of their agents, or by any mismanagement of their engineers, by the persons sustaining such damages” was construed not to extend the liability of the employer to cases where the injury was caused by the negligence of a coemploye.

Construction of Statute-Right of Employe to Recover—"Any Person.”A statute of Missouri provides that “whenever any person shall die from any injury resulting from or occasioned by the negligence servant or employe, while running, conducting or managing any locomotive, car or train of cars," etc., and a subsequent clause provides that “when any passenger shall die from injury resulting from or occasioned by any defect or insufficiency in any railroad or machinery thereof." Held, that the provision of the first clause conferred a right of action upon employes injured by the negligence of those in charge of the train so long as such persons were not fellow-servants. Sullivan v. Missouri Pac. R. Co., 97 Mo.

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113. BLACK, J., said :-“ The further point is made that, this being an action by the representative of an employe, the court erred in fixing the damages at $5,000. In other words, the contention is that the case is not within the second section of the damage act. The case of Proctor v. Hannibal & St. J. R. Co., 64 Mo. 112, decides, and decides only, that the words 'any person' do not include the case of a servant whose death is occasioned by the negligence of a fellow-servant. Considering the second, third and fourth sections together, it was held that it was not the object, purpose, or intent of the legislature to destroy or interfere with the rule that prohibits a servant from sustaining an action against the master for the negligence of a fellow-servant. The master himself not being in fault,' says the court, 'the face of the section is at war with any other idea than that the right to sue was intended to be a transmitted right, and not an original right.' That case has been followed to the present time, and we still adhere to the ruling there ade. But if we are right in the conclusion that Sullivan was not a fellow-servant with the servants of the defendant, running the train which ran over and killed him, then the Proctor Case is without any application here. The statute reads: Whenever any person shall die from any injury resulting from or occasioned by the negligence * servant or employe, while running, conducting, or managing any locomotive, car, or train of cars,' etc.; and a subsequent clause goes on to say : “ And when any passenger shall die from any injury resulting from or occasioned by any defect or insufficiency in any railroad, or machinery thereof,' etc. It will be seen that, in case of death resulting from defective road or machinery, this section extends to passengers only, and not to servants, though they may have a cause of action under the third section, but not even under that section, if the death be the result of the negligence of a fellow-servant. But the first clause of the second section is not limited to passengers. Under that clause, if the person die from the negligence of the servant, while running any locomotive, car, or train of cars, then his representatives will be entitled to recover $5,000 damages; provided the person would have had a cause of action had death not followed. Sullivan, therefore, not being a fellow-servant with the train men, the plaintiff's cause of action comes vithin the said second section of the damage act.”

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LAKE SHORE & MICHIGAN SOUTHERN R. Co.

V.

PARKER.

(Illinois Supreme Court, January 21, 1890.) Contributory Negligence- Excessive Speed-View of Switch Obscured. Where an engineer operating a train which was behind time, approached a switch at the usual speed of 14 to 18 miles an hour with his engine under control, while his view was obstructed by smoke so that he could not see the switch target, the question whether he was guilty of contributory negligence precluding a recovery for his death, is one of fact for the jury.

Same-Violation of Rules—Province of Jury. ---Rules requiring the engineer when his view is obstructed to control his train so as to be able to stop within the range of his vision; to run delayed trains with great caution and at all times under full control; to approach stations with reduced speed and with care, simply call attention specifically to the exercise of that care

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which the law imposes upon every engineer, and the question whether an engineer who approached a switch, his view of which was obscured, at a speed of 14 miles, was guilty of a violation of the rules, is one of fact for the jury.

Same-Limit of Speed Prescribed by Ordinance-Cause of Injury.-Although the train was running at a speed exceeding the limit established by municipal ordinance, and the engineer was therefore guilty of negligence per se, the engineer or his representatives are entitled to recover if the excessive speed did not contribute to the injury.

Same - Consideration of Engineer's Conduct-Instructions. An instruction that in determining whether an engineer “at the time of the accident made use of all the care, exertion and skill” expected of a locomotive engineer, the jury may take into consideration, etc., is not open to the objection that it confines the attention of the jury to the moment of the occurrence of the accident, and excludes from its consideration negligence of the conductor or engineer leading up to, or causing the accident.

Damages-Instruction-Statutory Limit.-An instruction that if the jury find for the plaintiff “they may assess the plaintiff's damages at such sum as will be a fair compensation with reference to pecuniary injuries resulting from such death to the widow and next of kin to the deceased, not exceeding the sum of $5,000,” is not open to the objection that it authorizes a recovery of the sum of $5,000 whether the pecuniary loss of the plaintiff equals that amount or not.

Contributory Negligence-Duty of Engineer-Speed of Train.-An instruction that the deceased was under the obligation to run his train so as to be absolutely able to stop it in time to avoid a coilision on a side track in case the switch should have been left open, is properly refused.

APPEAL from Appellate Court, First District.
Pliny B. Smith for appellant.
John McGaffey and John T. Richards for appellee.

WILKIN, J.--This is an action on the case, brought by appellee against appellant, for negligently causing the death of

her husband, John C. Parker. There are two counts Case stated.

in the declaration, both in the usual form, except that the second fails to allege that the deceased left surviving him next of kin. The negligent act by which death was caused is in both counts charged to be leaving a certain switch open, whereby the engine, then driven by deceased, was diverted from its track, and caused to collide with another engine on a side track. A trial in the circuit court of Cook county, the Honorable FRANK BAKER, J., presiding, resulted in a verdict and judgment for appellee for the sum of $5,000, and costs of suit. On appeal to the appellate court of the first district, that judgment was affirmed, and appellant now prosecutes this further appeal.

It appears that at the time of his death deceased was employed as a locomotive engineer on the railway of the Chicago,

Rock Island & Pacific Railway Company. Running

into the city of Chicago from the switch between Englewood and the city depot, a distance of some six miles, this

Facts.

company and appellant used the same main tracks, along which, at frequent intervals, were switches under the exclusive control of appellant. These were supplied with targets, which served as signals to indicate whether the switch was open or closed. One of these switches was at Forty-Fourth street, at which place appellant maintained extensive yards on either side of the main track. This switch was on the west side of the west track, and, when open, would divert a train from the east main track to a side track in the east yard. On the 7th of November, 1883, as Parker, in charge of a locomotive attached to a train of passenger cars, approached this switch from the south, he discovered that it was open, but too late to stop his train before being thrown on the side track, and in collision with a locomotive and train belonging to appellant, thereby causing his death.

The theory of appellee's case is that the employes of appellant had negligently left the switch open, and in a condition dangerous to trains approaching from the south; that deceased was in the exercise of reasonable care as he approached the same, and therefore appellant is liable. The first of these positions is not controverted by appellant. The second is strenuously denied, and upon its determination the result of the case rests. It presents a controverted issue of fact, and the finding of the jury, affirmed by the judgment of the appellate court, is conclusive against appellant's contention, and cannot be retried in this court. Appellant seeks to avoid this result upon the theory that there is no evidence tending to support that finding, but, on the contrary, the undisputed facts show that deceased was himself guilty of gross negligence contributing to his death, and therefore the question of his negligence becomes one of law, and not of fact.

The conclusion is not warranted by the evidence. It shows that deceased approached the switch at the “usual speed,” and that he was at his proper place on the engine, and had it under control; that he remained at Contributory

negligencehis post to the last moment. In short, the evidence

Rate of speed. at least tends to show that he did everything which it was his duty to do under the circumstances, unless it can be said that the rate of speed at which he approached the switch should be held conclusive proof of negligence; or, as is argued by counsel, that, whether he could see the switch target or not, he was bound to know its position, and so reg. ulate the speed of his train as to be able to stop it before running into the open switch, and, if he did not, he was guilty of negligence as a matter of law. The testimony of the fireman shows that for some distance south of the switch the target was so obscured by smoke and steam from an engine on a side track near by that it could not be seen from the cab of Parker's engine. To say that, notwithstanding this fact, the deceased was bound to assume, or even suspect, that the switch might be open, and stop his train, or put it so under control that he could stop it before reaching the switch, and that a failure to do so is conclusive proof of negligence, seems so unreasonable as to refute itself. In such case Parker would certainly have the right to suppose that others had done their duty by closing the switch. Little progress could be made by trains if any other rule should be adopted. Chicago & N. W. R. Co. v. Snyder, 117 Ill. 376, 28 Am. & Eng. Ř. Cas. 611, is supposed to support appellant's position. It was not claimed in that case that Snyder, the deceased, could not, or that he did not, see the signal. The contention by his administrator was that the signal was given for him to pass the crossing, which he was attempting to obey, when the signal changed, but too late for him to stop his train and avoid the collision. On the other hand, it was insisted that the signal was not given for him to cross, but for the train with which he collided. The instruction referred to by counsel, and which we held should have been given, simply announced that, if the jury found from the evidence that the signal was for the train with which Snyder collided, and not for him, his administrator could not recover. In Lombard v. Chicago R. R. Co., 47 Iowa 497, it is expressly stated that the signal was seen, and so in the other cases cited it was seen, or could have been seen by looking:

It was unquestionably the duty of the deceased, taking into consideration all the facts and circumstances, obscurity of the

vision, with others, to approach the switch with Rules of com.

care. He was not bound to suppose or suspect

that defendant's servants had been guilty of a reck: less omission of duty in leaving it open. Whether he used due care to observe the target, and, in approaching, the train, was therefore clearly a question of fact. The jury found that, as the train in charge of deceased approached the switch, it was running between 14 and 18 miles an hour. This, it is said, under the circumstances and rules of the two companies offered in evidence, was gross negligence on the part of de ceased, and absolutely precludes a recovery by his administratrix. It is not pretended that this rate of speed is ordinarily dangerous, but the contention is that, the view of the target of the switch being obscured, the train being behind time, the fact that a switch was known to be at that place, and that it was near a station, made it imperative upon deceased, under the rules of his own and the defendant company, to run at a less rate of speed. Such of the rules referred to as are ma

pany.

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