Joliet, Aurora & Northern Railway Co. v. Velie

Smith, J.,

dissenting. I can not give my consent to this judgment, for three reasons:

First. From the appellee’s own statement, he was guilty of gross negligence in stepping between the engine and the car while it was in motion to uncouple them, and that, too, upon a road which was unballasted, and when he could not walk without stepping upon or between the railroad ties that had no filling between them. It would be difficult to imagine a more dangerous or reckless act than stepping before a moving engine to uncouple the car to which it was attached. It was also an act of negligence on the part of appellee in not looking to see whether there was a hand-rail attached to the freight car before reaching for such rail. If he had given the slightest attention to his protection, he would have seen the rail was out of order and that he could not get hold of it.

The Supreme Court and this court have held, in a multitude of cases, that an attempt to get off a moving train is such an act of negligence as will prevent a recovery when accident follows such attempt, and how much greater was the ncgligence on the part of appellee to step before a moving engine when the slightest misstep would involve him in almost certain death. It is hard to imagine a more reckless act of an intelligent human being. The law does not require railroad companies to send or keep a guard or watchman over its employes to guard them from getting hurt. Every person in the employ of a railroad company, from the highest to the lowest, are but servants in the service of an intangible lifeless thing, called a corporation, and, therefore, from very necessity, every servant must be watchful and careful for his own safety, and must not expose himself recklessly to any kind of danger. The enforcement of this rule is of the highest importance to employes in railroad companies, and also to the public, whose lives and property so largely depend upon the watchfulness and care of those operating the railways of the country.

In this case, appellee was the master of his own train. He had a right to require the engineer to stop his engine before going before it. Ho one had a right to command him to go into a place of danger, nor was there the least possible necessity of his going. before a moving engine to do this work he was doing. It was purely voluntary on his part and wholly unnecessary. The danger was apparent to the most thoughtless, and in the presence of this known danger he did not so much as raise his eyes to see whether there was any guard rail on the car which he could reach or hold to while uncoupling the car. I can not imagine any greater degree of negligence, short of throwing one’s self headlong before a moving train.

Second. If the methods adopted for running appellant’s train were dangerous and hazardous to its employes, either from a want of sufficient help or from a new or bad road track, or from dangerous machinery, and with a full knowledge of these dangers and hazards the appellee remained in the service of the company, then, under the settled and repeated decisions of this and the Supreme Court, he could not recover for an injury resulting from such dangerous methods of operating the road, or from an insufficient road or defective machinery.

If he saw fit to continue in the service of the company with insufficient help, a defective road or machinery, and under methods of operating his train that were manifestly dangerous and hazardous, then he must be held to have assumed the risks of continuing in such place of danger. This rule is so well settled that it needs no citation of authorities.

Third. I hold the damages are excessive in the extreme. While there is no doubt that the injury to appellee was very severe and lasting in its character, and that he has suffered very greatly and is maimed for life, still, I am constrained to believe that the verdict is largely the product of sympathy on the part of the jury for the appellee. The amount only lacks one hundred dollars of being three times as much as the law allows to be recovered for the death of the most useful or exalted citizen of the State. The interest on this amount at the current rate of eight per cent per annum, amounts to $1,120, and leaves the principal untouched. This is $220-more per annum than appellee was earning at the time of this injury. It seems to me that sympathy for this worthy and unfortunate man has blinded both the court and jury to plainest principles of law, rightly applicable to and governing the case, and that this verdict has no support either in the evidence or the law.