Chicago & Alton Railroad v. Kelly

Citations

• 127 Ill. 637
• 21 N.E. 203

Syllabus

<p>1. Negligence—what will constitute. A construction train on a railroad, in approaching a station, made a flying switch, whereby a collision occurred between the tender of the engine and the caboose car, after which the engine moved forward and struck one of the cars standing on a side-track, throwing it forward against a car upon which iron was being loaded by men under a section-boss, without any notice to them. One of the men, in attempting to reach the platform, was struck and killed by the train coming down the track at the rate of eight miles an horn-: Held, that the jury might well infer negligence on the part of the railway company from these facts, and that it could not be said there was no evidence tending to show negligence.</p> <p>2. Same—fellow-servants—whether the relation exists. A section-hand, whose duty it was to repair tracks, etc., under the direction of his section-boss was required to go upon a construction train and assist in unloading rock for ballasting the road. After this was done, the section-hand returned to his station and resumed his labors as such in loading iron on a car on the side-track, and while so engaged was killed by the construction train: Held, that when the accident occurred the section-hand was not a fellow-servant with those in charge of the construction train, and owed no duty to them.</p> <p>3. Appeal'—reviewing facts—negligence as a question of fact. Whether the death of a person was caused by his own negligence or that of the defendant, is a question of fact, not reviewable by this court in an action by the personal representative of the deceased.</p> <p>4. Same—fellow-servants—question of fact—not reviewahle. Whether a servant of a railroad company killed by a construction train is a fellow-servant of those in charge of the train at the time of the accident, is a question of fact, and not one of law for the court, and the finding of the Appellate Court as to such fact is conclusive.</p> <p>5. So in an action agains