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plain, and as she is satisfied with the decree in this particular we are not called upon to review the question.

[3, 4] Mrs. Dumond does complain, however, that the decree for partition was premature, and that the proceeding should have been stayed until it had been determined in the proper forum whether she was entitled to a widow's award. While the practice of entering a decree for partition or sale before the estate is finally settled is, not approved by this court, we have held that it is not reversible error to do so, but in case a sale is ordered the personal representative should be brought into court, and the court should so control the funds arising from the sale as to protect the interests of creditors of the estate. Hall v. Gabbert, 213 Ill. 208, 72 N. E. 806; Watke v. Stine, 214 Ill. 563, 73 N. E. 793. In this case the widow is a party, and in the event that the commissioners shall find the land to be indivisible and a sale is ordered, she has the right to be heard, before a distribution is made, as to any claim she has to any part of this fund as the widow of Jacob Dumond.

[5] Mrs. Dumond further complains of the construction placed by the court upon the devise of the 40-acre tract to Henry P. Dumond and of the action of the court in dismissing that part of her cross-bill. The court correctly construed this provision of the will. Under our statute the children of Henry P. Dumond stand in his stead as devisees, and by this provision of the will they take title to this. 40-acre tract in fee simple, subject to the payment of $400 to Mrs. Dumond, Mrs. Ellis, and Mrs. Randolph, each. The portions of the original bill and cross-bill which sought relief in reference to this 40-acre tract were properly dismissed for want of equity.

[6] Mrs. Dumond, as administratrix, further complains that the court erred in not finding that she was entitled to a lien upon the interest of the children of Henry P. Dumond in the lands for the payment of the balance due Jacob Dumond, at the time of his death, on a claim which he had filed against the estate of his son, Henry P. Dumond. The estate of Henry P. Dumond The estate of Henry P. Dumond was insolvent. The claim of Jacob Dumond was allowed, but only a portion of it was paid, and it is now contended that the balance should be paid out of the interest of the children of Henry P. Dumond in the estate. Henry P. Dumond, having died prior to the death of his father never had any interest in these lands. The children of Henry P. Dumond are not personally liable for his debts or for any judgment which was secured against his estate. Not being liable for the debts of their father, we know of no theory upon which their interest in these lands can be subjected to the payment of the balance due on this claim.

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A railroad company operating, under a lease, the tracks and rolling stock of a car foundry, which receives shipments from interstate carriers at the gates of the foundry, and yards, is engaged in interstate commerce, and transports them to their proper places in the required by the federal Railway Safety Appliance Act (Act March 2, 1893, c. 196, 27 Stat. 531 [U. S. Comp. St. 1901, p. 3174]), to equip its engines with automatic couplers, even though at the time of the accident the engine was switching cars for the exclusive benefit of the foundry.

Cent. Dig. § 25; Dec. Dig. § 27.* [Ed. Note.-For other cases, see Commerce,

For other definitions, see Words and Phrases, vol. 4, pp. 3724-3731.]


Where the facts are undisputed, and are such that all reasonable minds must reach the same conclusion, the question of the proximate cause of an injury is one of law.

Cent. Dig. §§ 277-353; Dec. Dig. § 136.*] [Ed. Note. For other cases, see Negligence, 3. MASTER AND SERVANT (§ 129*)—INJURIES


A railroad brakeman while riding on the running board of a locomotive in order to ununder the wheels by the derailment of the lococouple cars for a kicking switch was thrown motive caused by the defective condition of its brakes and the track. The locomotive was not equipped, as required by the federal Safety Ap531 [U. S. Comp. St. 1901, p. 3174]), with a pliance Act (Act March 2, 1893, c. 196, 27 Stat. coupler which could be uncoupled without going between the ends of the car, but the testimony showed that, even if it had been, the defendant would have had to ride on the running board to uncouple the cars for a kicking switch. There was also testimony that by the use of a particular make of coupler the necessity of uncould have been avoided. Held, that the failure coupling the cars while they were in motion to comply with the requirements of the Safety Appliance Act was not the proximate cause of the death of the brakeman, since that act did not require use of a coupler which could be uncoupled before the engine was started.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 257-263; Dec. Dig. § 129.*]


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Even though it be assumed that the failure to equip the engine with a lever by which it

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 257-263; Dec. Dig. §


Carter, J., dissenting.

Error to Appellate Court, First District, on Appeal from Superior Court, Cook County; William H. McSurely, Judge.

Action by John F. Devine against the Chicago & Calumet River Railroad Company. Judgment for the plaintiff was affirmed in the Appellate Court (174 Ill. App. 324) and defendant brings error. Reversed and re


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Frank M. Cox and Sheriff, Dent, Dobyns & Freeman, all of Chicago (Andrew R. Sheriff and R. J. Fellingham, both of Chicago, of counsel), for plaintiff in error. James C. McShane, of Chicago, for defendant in error.

could be uncoupled without going between the [ laid numerous railroad tracks connecting its cars made it necessary for the brakeman to ride various buildings with the tracks of railroad upon the running board, the failure was not the proximate cause of the death, since the defec- companies outside of its grounds. The fountive condition of the locomotive and track were dry company also owned two locomotives, five independent intervening causes. flat cars, one gondola car, and one box car, which were intended for use in handling the foundry company products in and out of its factory and from one place to another within its inclosed grounds. All of its railroad tracks except that portion of the tracks that was inside of its buildings, and all of its rolling stock and other equipment for the operation of its cars, were at the time of the accident in question in the possession of and being operated by the Chicago and Calumet River Railroad Company, plaintiff in error, under a lease from the foundry company. Plaintiff in error performed two distinct classes of service. It received car loads of material, such as iron, coke, lumber, and the like, intended for the foundry company, at the gates or openings in the fence where they were delivered by railroad companies, and moved such cars over its tracks to the desired point inside the foundry company's grounds. It also hauled finished cars out to the gate, where they were received by the railroad companies and carried to their destination. For its services in handling car loads of material plaintiff in error received its compensation from the railroad company delivering said cars to plaintiff in error by some sort of a division of freight charges. Plaintiff in error also did a class of service that was paid for by the foundry company which was exclusively for its benefit. work consisted in moving cars loaded with waste and refuse from the buildings where the same accumulated to a dumping point, which was reached by one of the tracks inside of the inclosure known as the "kindling track." At the time of the accident in which Patton was injured plaintiff in error had its locomotive coupled onto three flat cars which were loaded with waste material that had accumulated in the factory from the making of new and the repair of old cars. The loads were three or four feet high, and the scrap wood and waste were held in place with sticks set up at the sides of the cars. The object was to run these three cars of waste down on the kindling track, to be there unloaded as waste. In order to accomplish this, a switching movement known as "kicking" was attempted. This movement is accomplished by pushing the cars to be switched in front of the locomotive until they acquire momentum sufficient to carry them to the desired point. They are then uncoupled from the locomotive and allowed to run under the impulse of the acquired motion while the locomotive slackens its speed and is brought to rest. In order to make this switching movement, it was the duty of the deceased to ride on the front running board of the locomotive, so as to be

VICKERS, J. The defendant in error, as administrator of the estate of James H. Patton, deceased, obtained a judgment for $10,000 damages against the Chicago & Calumet River Railroad Company in an action on the case for negligently causing the death of defendant in error's intestate. The case was submitted to the jury upon the fifth and sixth counts of the declaration, one of which charged the violation of the federal Railroad Safety Appliance Act (Act March 2, 1893, c. 196, 27 Stat. 531 [U. S. Comp. St. 1901, p. 3174]) in using upon its railroad a locomotive engine that was not equipped with an automatic coupler which could be uncoupled from the side of the engine and without the necessity of going between the end of the engine and the car, from which it was to be uncoupled. The other count charged a like violation of the Safety Appliance Act of the State (Hurd's Rev. St. 1911, c. 114, §§ 219-222). Both counts alleged that the deceased was required to, and did, ride between the engine and the car for the purpose of uncoupling them, and by reason of the condition of the coupling appliance was thrown from the engine and received the injuries from which he afterwards died. The only negligence charged in either of said counts of the declaration is a failure to comply with the federal and state statutes in regard to the automatic coupler required.

The facts are, in substance, as follows: The Western Steel Car & Foundry Company, at Hegewisch, Ill., was an incorporated company engaged in the manufacture of steel freight cars and in the repair of the same. It used in connection with its plant about 100 acres of land, which was inclosed by a high board fence, except on the west side, which was bounded by the Calumet river. Inside of its inclosure the foundry company had

in a position to pull the pin and detach the cars when the required speed had been attained. The deceased was upon the running board of the locomotive, as described, when the locomotive started to kick the cars down on the kindling track. The locomotive had moved these cars a distance of approximately 1,500 feet before they were uncoupled. The uncoupling is done and the locomotive slackened at a signal, which is usually given by the conductor or the head switchman. There was a frog connecting the kindling track with another track at or near the place where the locomotive was uncoupled from the cars on the day of the accident. The evidence is uncontradicted that the steam brake on the locomotive was out of repair, and had been for two or three weeks, so that it could not be used. The only way the locomotive could be stopped was by reversing the lever, which would cause a rocking or swaying motion of the locomotive. At the time of the accident, and at the proper time, the deceased drew the pin and the cars were kicked down on the kindling track. After they were separated from the locomotive the engineer reversed his lever and the locomotive was derailed. It ran 65 feet on the ties, and then one set of drivers got down upon the ground and it ran some distance, sinking the wheels into the ground, and was finally brought to rest by striking a water plug some 2 or 3 feet from the rail. The deceased was thrown from the running board, and his feet were caught under the locomotive, and he received injuries from which he died five or six months later. The evidence shows that the tracks at the place where the derailment

occurred were not well ballasted. The evi

dence also tends to show that the track was poorly constructed. The deceased had work

ed for a considerable length of time around

these yards, and for several months had been a switchman for plaintiff in error.

The Appellate Court for the First District The Appellate Court for the First District affirmed the judgment below, and the record has been brought to this court by a certio


At the close of the evidence for defend

ant in error, and again at the close of all the evidence, plaintiff in error asked the court to instruct the jury to find it not guilty and submitted instructions for that purpose, which were refused. Plaintiff in error contends that there was error committed in re

the statutes complained of. If either of these contentions is sustained, it will necessarily result in a reversal of the judgment.

[1] Upon the first proposition, plaintiff in error argues that neither of the statutes has any application to such a movement of cars as the one here in question. It is not necessary, to create a liability under the federal statute, that the car or locomotive in question should be actually engaged in interstate commerce at the precise time when an injury occurs. The Supreme Court of the United States, in Southern Railway Co. v. United States, 222 U. S. 20, 32 Sup. Ct. 2, 56 L. Ed. 72, has given a construction to the federal act and its amendment, and it is there held that the test is the use of the vehicle on a railroad which is a highway of interstate commerce, and not the particular use that is being made of it at the moment of the accident. The evidence in the case at bar shows that cars loaded with freight billed to the foundry company came to the point where plaintiff in error's tracks connected with interstate roads and were there received by plaintiff in error and hauled over its tracks In handling both to their final destination. incoming and outgoing cars as a connecting line with interstate railroads plaintiff in error was engaged in interstate commerce. Every part of the transportation of goods in a continuous passage from one state to a designated point in another state is interstate commerce, and every common carrier that participates in the transportation of such goods is engaged in interstate commerce, even though the particular part of the transportation of a given carrier is wholly

within one state. United States v. Colorado & Northwestern Railroad Co., 157 Fed. 321,

85 C. C. A. 27, 15 L. R. A. (N. S.) 167, 13 Ann. Cas. 893. We are of the opinion that the court properly held that plaintiff in error was engaged in interstate commerce, and,

handled by plaintiff in error from and to applying the same line of reasoning to freight points within the state, it might well be held that plaintiff in error was amenable to the state law in reference to safety appliances.

[2, 3] Plaintiff in error's second proposition, that conceding it owed the duty, under either or both of these statutes, to equip its locomotive with an automatic coupler and that it failed to discharge that duty, still its failure in that regard was not the proximate cause of the injury, presents a more serious fusing its request for a directed verdict (1) question. While the general rule is that the because it was not engaged in either inter- question of proximate cause of an injury is state or intrastate commerce at the time of one of fact for the jury, still, where there is the accident, and consequently neither the no dispute as to the facts and the facts are federal nor state statute declared upon has such that all reasonable minds must reach any application to its locomotive at the time the same conclusion in regard thereto, it of the injury; (2) that if it be conceded that may become a question of law to determine the locomotive was being operated at the whether a given injury is the proximate retime of the accident, contrary to the provi-sult of a given cause. The locomotive in sions of both the federal and state acts, it question was equipped with an automatic is earnestly contended that the accident was coupler. As we understand the evidence, it

and that it was not necessary to go between | a switching movement. It must be rememthe cars in order to make a coupling. It bered that the pin or block in the coupler did not, however, have the lever extending from the coupler to the side, which would permit a switchman to uncouple it without the necessity of going between the cars, and hence the coupling device did not literally comply with the requirements of either the federal or state statute. Four witnesses who are experienced railroad men testify that, in order to make a kicking switch of cars, it is necessary for the brakeman to ride on the running board of the locomotive for the purpose of pulling the pin at the proper time. In other words, it is contended that the deceased would have been exactly at the place he was if the coupler had been provided with the necessary lever so that it could have been uncoupled or coupled without the necessity of going between the cars. It is absurd to suppose that, had this coupler been provided with the lever extending to the side of the car, it would have been practicable for the deceased to have remained on the ground and followed the car so as to have been at the place to pull the lever when the proper time arrived. The distance traveled and the speed of the train preclude the possibility of any such performance as that. There is no dispute that the only practicable method of performing this sort of a switching movement is for a man to ride the engine so that he may pull the pin when the required momentum is reached, and this is so reasonable that we are forced to the conclusion that the undisputed evidence of these four witnesses must be accepted as true. If, as these witnesses say, it would have been necessary for the deceased to be on the running board even if the locomotive had been equipped with the character of coupler required by law, then how can it be said that his presence upon the running board was due to the absence of such coupler?

that drops down and locks the knuckle of the coupler, when it is elevated above its socket must be released by impact in order to effect the coupling. It is no doubt true, as contended by defendant in error, that the pins or blocks in most standard automatic couplers have a slight shoulder or dog that will hold them in position above the socket after the lever has been pulled in an uncoupling operation. The pulling of the lever raises the pin or block, and releases the knuckle, and thus effects an uncoupling. If the pin drops back to position in the socket, the car will not couple automatically until the pin is again raised. All automatic couplers are supposed to have a small shoulder or dog that will hold the pin or block above the socket until there is some jar or impact or movement of the car which will jar it off the shoulder or dog and permit it to drop of its own weight into its socket. It seems, as a mechanical proposition, that any cocking device that would hold the pin in position for a switching movement such as was made in the case at bar would prevent the contrivance from coupling by impact. Whether this is true or not, the evidence in this case fails to show that there is any automatic coupler in use, or known, with a cocking device which will hold the pin in suspension above its socket while the cars are being shoved or pushed about by the locomotive, and, if such a device is known, neither the federal nor state statute requires its use. If the locomotive in question had been equipped with the lever to operate the coupler from the side of the car, it would still have been necessary for the deceased to have adopted one of three methods in order to uncouple the car in making this switch. If he was able to run along by the side of the locomotive until the time to uncouple, he might have remained on the ground and unDefendant in error suggests that there is a coupled by simply reaching in and pulling particular kind of automatic coupler that the lever. Whether this was possible would will enable the operator to raise the pin so have depended on the speed of the engine as to permit the car to uncouple and will and the distance traveled before the unhold the pin above the coupler until it is coupling was made. If there was a stirrup jarred into place by impact. It is suggested on the car next to the locomotive, it is that, if this cocking device had been in use possible that he might have stood on the on this locomotive, the deceased might have stirrup and supported himself by holding to raised the pin before the movement com- one of the sticks that held the load on the menced, and that the cars could thus have car with his left hand and reached in and been uncoupled while the locomotive was uncoupled the car with his right. All cars standing still. Even if it be conceded that there is such a coupler known among railroad men, still the statute declared on does not require all railroads to adopt and use that particular device. Any standard coupler which will couple automatically by impact, and which can be uncoupled without requiring men to go between the ends of cars, would satisfy the statute. These statutes do not require automatic couplers with a cock ing device so rigid that it will hold the pin

other than flat top cars, such as these were, are required to be equipped with such stirrups and grabirons above, so that the switchman may stand on the stirrup and support himself with the handholds above, to operate the coupler. The third method was the one adopted by the deceased; that is, to ride upon the foot board of the locomotive and from his position reach down in front of him to lift the crank of the lever and thus uncouple the car. Considering the distance trav

character of the car that was to be kicked, it seems to us the witnesses who testify that under the circumstances of this movement it was necessary for the deceased to ride upon the foot board of the locomotive in order to uncouple these cars state an incontrovertible proposition of fact. The presence of the deceased upon the foot board of this locomotive was not, therefore, due to the absence of a lever or handle upon the coupler, but was due to the fact that there was no other practicable way in which the operation could be performed.

[4] There is another view which may be suggested. Assuming, for the sake of argument, that the absence of the lever upon the coupler in question made it necessary for the deceased to ride upon the running board of the locomotive, and while so riding there he was injured by another independent cause or agency not in any way connected with the negligence complained of, can it be said that the defective coupling appliances were the proximate cause of the injury? It is perfectly plain that this man was thrown from the running board by a defect in the brake upon the locomotive, or by that defect in conjunction with the bad condition of the track. At the time deceased was thrown from the running board the purpose for which he had gotten upon it had been accomplished-the cars had been uncoupled. If, after the uncoupling had been effected in safety and the locomotive separated from the cars, there had been a good and sufficient brake upon the locomotive and a good, solid track below the wheels, there would have been no difficulty in stopping the locomotive by the application of the brake without throwing the deceased from the foot board. But the locomotive had no brake. It could only be stopped by reversing the lever. This imparted a swaying motion to it, which, in connection with the defective track, caused the derailment, and the deceased was jostled from the foot board after the locomotive got off of the rails. Under these facts, the direct and proximate cause of the injury was the derailment of the locomotive, and the derailment was an independent cause, not in any way connected with the defect in the coupling appliances, that caused the injury. If the failure to have the locomotive equipped with an automatic coupler such as is required by the statutes does no more than to bring about a condition which makes the injury possible by the intervention of some other disconnected cause, then the negligence complained of is not the proximate cause of the injury. It seems to us that the most that can possibly be said of the negligence charged in the declaration is that it produced a condition which, being operated upon by other disconnected acts of negligence, caused the injury complained of.

It results from the views which we have expressed that in our opinion the trial court

motion for a directed verdict, and that the Appellate Court erred in affirming that judgment.

The judgments of the superior court of Cook county and the Appellate Court for the First District are reversed and the cause is remanded to the superior court. Reversed and remanded.

CARTER, J. (dissenting). I cannot agree with the conclusion stated in the opinion that the defective coupler was not the proximate cause of the injury. The evidence of at least two witnesses shows that in making such a switch or movement as was going on at the time of the accident there was no reason why the coupling pin could not be raised either before or at the time the cars were started, provided the appliances were such that the pin could be held up when once raised. It also shows that there were different kinds of couplers in general use which would hold the pin up under such circumstances, and thereby render it unnecessary and useless for a switchman to ride between the engine and car in making a kicking switch. The uncontradicted evidence shows there was no way to keep the coupling on the engine here in question up, when once raised, except by holding it up by the hand; that, if it was not thus held up, it would immediately drop back into place and thereby lock the coupler. The federal and state acts that bear on this subject make it unlawful for any common carrier subject to the provisions of the acts to haul or use on its line any engine or car "not equipped with couplers coupling automatically by impact and which can be uncoupled without the necessity of a man going between the ends of the cars." This necessarily means, also, between the end of the engine and a car. It was contrary to both of these statutes to use the engine in question with a coupler in such condition that it was necessary for a switchman to go between the engine and the car to uncouple them in making a switch. These statutes leave it to the carriers to adopt whatever particular kind of coupler they prefer, provided that the coupler used be such as will couple automatically and can be uncoupled without the necessity of a man going between the engine and the cars. If there were no couplers which would permit an engine and car to be uncoupled without the necessity of a man going between them to make a kicking switch like the one in question, it might be claimed that the statutes were unreasonable, but the evidence in this record is that such couplers are in use. If the exercise of reasonable care in maintaining the statutory standard of equipment will not exempt a car movement as being beyond the spirit of the statute, much less will mere convenience be accepted as an excuse. Chicago Junction Railway Co. v. King, 169

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