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plain, and as she is satisfied with the decree For the error above pointed out the decree in this particular we are not called upon to of the circuit court is reversed, and the cause review the question.

remanded to that court, with directions to [3, 4] Mrs. Dumond does complain, how- enter a decree for partition in accordance ever, that the decree for partition was pre- with the views herein expressed. The costs mature, and that the proceeding should have of this appeal will be taxed one-half against been stayed until it had been determined Lydia Dumond, individually and one-half in the proper forum whether she was entitled against her as administratrix with the will to a widow's award. While the practice of annexed. entering a decree for partition or sale be- Reversed and remanded, with directions. fore the estate is finally settled is, not approyed by this court, we have held that it is not reversible error to do so, but in case

(259 Ill. 449) a sale is ordered the personal representative

DEVINE v. CHICAGO & C. R. R. CO. should be brought into court, and the court (Supreme Court of Illinois. June 18, 1913. should so control the funds arising from

Rehearing Denied Oct. 15, 1913.) the sale as to protect the interests of credit- 1. COMMERCE ($ 27*)—OPERATION-STATUTORY ors of the estate. Hall v. Gabbert, 213 Ill.


COMMERCE." 208, 72 N. E. 806; Watke v. Stine, 214 Ill.

A railroad company operating, under a 563, 73 N. E. 793. In this case the widow lease, the tracks and rolling stock of a car is a party, and in the event that the com- foundry, which receives shipments from intermissioners shall find the land to be indivisi- state carriers at the gates of the foundry, and

transports them to their proper places in the ble and a sale is ordered, she has the right yards, is engaged in interstate commerce, and to be heard, before a distribution is made, as required by the federal Railway Safety Applito any claim she has to any part of this ance Act (Act March 2, 1893, c. 196, 27 Stat. fund as the widow of Jacob Dumond.

531 [U. S. Comp. St. 1901, p. 3174]), to equip

its engines with automatic couplers, even though [5] Mrs. Dumond further complains of the at the time of the accident the engine was construction placed by the court upon the switching cars for the exclusive benefit of the devise of the 40-acre tract to Henry P.

foundry. Dumond and of the action of the court in cent. Dig. g 25; Dec. Dig. $ 27.*

[Ed. Note. For other cases, see Commerce, dismissing that part of her cross-bill. The

For other definitions, see Words and Phrases, court correctly construed this provision of vol. 4, pp. 3724-3731.] the will. Under our statute the children 2. NEGLIGENCE (136*) - TAKING QUESTION

8 of Henry P. Dumond stand in his stead as FROM JURY-UNCONTROVERTED FACTS-PROXdevisees, and by this provision of the will


Where the facts are undisputed, and are they take title to this. 40-acre tract in fee such that all reasonable minds must reach the simple, subject to the payment of $400 to same conclusion, the question of the proximate Mrs. Dumond, Mrs. Ellis, and Mrs. Randolph, cause of an injury is one of law. each. The portions of the original bill and Cent. Dig. SS 277-353; Dec. Dig. & 136.*]

[Ed. Note. For other cases, see Negligence, cross-bill which sought relief in reference to this 40-acre tract were properly dismissed 3. MASTER AND SERVANT (8 129*)—INJURIES

TO SERVANT-PROXIMATE CAUSE. for want of equity.

A railroad brakeman while riding on the [6] Mrs. Dumond, as administratrix, fur- running board of a locomotive in order to unther complains that the court erred in not couple cars for a kicking switch was thrown

under the wheels by the derailment of the locofinding that she was entitled to a lien upon motive caused by the defective condition of its the interest of the children of Henry P. brakes and the track. The locomotive was not Dumond in the lands for the payment of the equipped, as required by the federal Safety Apbalance due Jacob Dumond, at the time of 531 JU. S. Comp. St. 1901, p. 3174]), with a

pliance Act (Act March 2, 1893, c. 196, 27 Stat. his death, on a claim which he had filed coupler which could be uncoupled without going against the estate of his son, Henry P. Du between the ends of the car, but the testimony mond. The estate of Henry P. Dumond showed that, even if it had been, the defendant

to was insolvent. The claim of Jacob Dumond to uncouple the cars for a kicking switch. was allowed, but only a portion of it was There was also testimony that by the use of a paid, and it is now contended that the bal- particular make of coupler the necessity of unance should be paid out of the interest of the could have been avoided. Heid, that the failure

coupling the cars while they were in motion children of Henry P. Dumond in the estate. to comply with the requirements of the Safety Henry P. Dumond, having died prior to the Appliance Act was not the proximate cause of death of his father never had any interest the death of the brakeman, since that act did in these lands. The children of Henry p. not require use of a coupler which could

be un.

P. Dumond are not personally liable for his

[Ed. Note.-For other cases, see Master and debts or for any judgment which was se- Servant, Cent. Dig. $S 257–263; Dec. Dig. $ cured against his estate. Not being liable 129.*] for the debts of their father, we know of 4. MASTER AND SERVANT (8 129*)-INJURIES no theory upon which their interest in these


CAUSES INTERVENING. lands can be subjected to the payment of the

Even though it be assumed that the failure balance due on this claim.

to equip the engine with a lever by which it


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*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes 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, [Ed. Note. For other cases, see Master and which were intended for use in handling the Servant, Cent. Dig. 88 257-263; Dec. Dig. $ foundry company products in and out of its 129.*]

factory and from one place to another within Carter, J., dissenting.

its inclosed grounds. All of its railroad Error to Appellate Court, First District, on tracks except that portion of the tracks that Appeal from Superior Court, Cook County ; was inside of its buildings, and all of its William H. McSurely, Judge.

rolling stock and other equipment for the Action by John F. Devine against the Chi-operation of its cars, were at the time of the cago & Calumet River Railroad Company. accident in question in the possession of and Judgment for the plaintiff was affirmed in the being operated by the Chicago and Calumet Appellate Court (174 Ill. App. 324) and de-River Railroad Company, plaintiff in error, fendant brings error. Reversed and re- under a lease from the foundry company. manded.

Plaintiff in error performed two distinct Frank M. Cox and Sheriff, Dent, Dobyns & classes of service. It received car loads of Freeman, all of Chicago (Andrew R. Sheriff material, such as iron, coke, lumber, and and R. J. Fellingham, both of Chicago, of the like, intended for the foundry company, counsel), for plaintiff in error. James C. at the gates or openings in the fence where McShane, of Chicago, for defendant in error. they were delivered by railroad companies,

and moved such cars over its tracks to the VICKERS, J. The defendant in error, as desired point inside the foundry company's administrator of the estate of James H. Pat- grounds. It also hauled finished cars out to ton, deceased, obtained a judgment for $10,- the gate, where they were received by the 000 damages against the Chicago & Calumet railroad companies and carried to their desRiver Railroad Company in an action on the tination. For its services in handling car case for negligently causing the death of loads of material plaintiff in error received defendant in error's intestate. The case its compensation from the railroad company was submitted to the jury upon the fifth and delivering said cars to plaintiff in error by sixth counts of the declaration, one of which some sort of a division of freight charges. charged the violation of the federal Railroad Plaintiff in error also did a class of service Safety Appliance Act (Act March 2, 1893, c. that was paid for by the foundry company 196, 27 Stat. 531 [U. S. Comp. St. 1901, p. which was exclusively for its benefit. 3174]) in using upon its railroad a locomotive work consisted in moving cars loaded with engine that was not equipped with an auto-waste and refuse from the buildings where matic coupler which could be uncoupled from the same accumulated to a dumping point, the side of the engine and without the neces- which was reached by one of the tracks insity of going between the end of the engine side of the inclosure known as the "kindling and the car, from which it was to be un- track.” At the time of the accident in which coupled. The other count charged a like Patton was injured plaintiff in error had its violation of the Safety Appliance Act of the locomotive coupled onto three flat cars which State (Hurd's Rev. St. 1911, c. 114, 88 219-222). were loaded with waste material that had

, . Both counts alleged that the deceased was accumulated in the factory from the making required to, and did, ride between the engine of new and the repair of old cars. The and the car for the purpose of uncoupling loads were three or four feet high, and the them, and by reason of the condition of the scrap wood and waste were held in place coupling appliance was thrown from the en- with sticks set up at the sides of the cars. gine and received the injuries from which he The object was to run these three cars afterwards died. The only negligence charg- of waste down on the kindling track, to be ed in either of said counts of the declaration there unloaded as waste. In order to accomis a failure to comply with the federal and plish this, a switching movement known as state statutes in regard to the automatic “kicking” was attempted. This movement coupler required.

is accomplished by pushing the cars to be The facts are, in substance, as follows: switched in front of the locomotive until The Western Steel Car & Foundry Company, they acquire momentum sufficient to carry at Hegewisch, Ill., was an incorporated com- them to the desired point. They are then pany engaged in the manufacture of steel uncoupled from the locomotive and allowed freight cars and in the repair of the same. to run under the impulse of the acquired It used in connection with its plant about 100 motion while the locomotive slackens its acres of land, which was inclosed by a high speed and is brought to rest. In order to board fence, except on the west side, which make this switching movement, it was the was bounded by the Calumet river. Inside duty, of the deceased to ride on the front of its inclosure the foundry company had running board of the locomotive, so as to be in a position to pull the pin and detach the the statutes complained of. If either of these cars when the required speed had been at-contentions is sustained, it will necessarily tained. The deceased was upon the running result in a reversal of the judgment. board of the locomotive, as described, when [1] Upon the first proposition, plaintiff in the locomotive started to kick the cars down error argues that neither of the statutes has on the kindling track. The locomotive had any application to such a movement of cars moved these cars a distance of approximately as the one here in question. It is not neces1,500 feet before they were uncoupled. The sary, to create a liability under the federal uncoupling is done and the locomotive slack- statute that the car or locomotive in quesened at a signal, which is usually given by tion should be actually engaged in interstate the conductor or the head switchman. There commerce at the precise time when an injury was a frog connecting the kindling track with occurs. The Supreme Court of the United another track at or near the place where States, in Southern Railway Co. v. United the locomotive was uncoupled from the cars States, 222 U. S. 20, 32 Sup. Ct. 2, 56 L. Ed. on the day of the accident. The evidence 72, has given a construction to the federal is uncontradicted that the steam brake on act and its amendment, and it is there held the locomotive was out of repair, and had that the test is the use of the vehicle on a been for two or three weeks, so that it could railroad which is a highway of interstate not be used. The only way the locomotive commerce, and not the particular use that is could be stopped was by reversing the lever, being made of it at the moment of the acciwhich would cause a rocking or swaying mo- dent. The evidence in the case at bar shows tion of the locomotive. At the time of the that cars loaded with freight billed to the accident, and at the proper time, the de- foundry company came to the point where ceased drew the pin and the cars were kicked plaintiff in error's tracks connected with indown on the kindling track. After they were terstate roads and were there received by separated from the locomotive the engineer plaintiff in error and hauled over its tracks reversed his lever and the locomotive was to their final destination. In handling both derailed. It ran 65 feet on the ties, and incoming and outgoing cars as a connecting then one set of drivers got down upon the line with interstate railroads plaintiff in erground and it ran some distance, sinking the ror was engaged in interstate commerce. wheels into the ground, and was finally Every part of the transportation of goods in brought to rest by striking a water plug some

a continuous passage from one state to a 2 or 3 feet from the rail. The deceased was designated point in another state is interthrown from the running board, and his feet

state commerce, and every common carrier were caught under the locomotive, and he that participates in the transportation of received injuries from which he died five or

such goods is engaged in interstate comsix months later. The evidence shows that merce, even though the particular part of the the tracks at the place where the derailment transportation of a given carrier is wholly occurred were not well ballasted.

within one state: United States v. Colorado &

The evidence also tends to show that the track was 85 C. C. A. 27, 15 L. R. A. (N. S.) 167, 13

Northwestern Railroad Co., 157 Fed. 321, poorly constructed. The deceased had worked for a considerable length of time around the court properly held that plaintiff in er

Ann. Cas. 893. We are of the opinion that these yards, and for several months had been a switchman for plaintiff in error.

ror was engaged in interstate commerce, and, The Appellate Court for the First District applying the same line of reasoning to freight

handled by plaintiff in error from and to affirmed the judgment below, and the record has been brought to this court by a certio- points within the state, it might well be held has been brought to this court by a certio- that plaintiff in error was amenable to the rari. At the close of the evidence for defend-state law in reference to safety appliances.

[2, 3] Plaintiff in error's second proposiant in error, and again at the close of all tion, that conceding it owed the duty, under the evidence, plaintiff in error asked the either or both of these statutes, to equip its court to instruct the jury to find it not guilty locomotive with an automatic coupler and and submitted instructions for that purpose, that it failed to discharge that duty, still its which were refused. Plaintiff in error con- failure in that regard was not the proximate tends that there was error committed in re-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 not the proximate result of the violation of was a coupler that would couple by impact, 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 that drops down and locks the knuckle of the from the coupler to the side, which would coupler, when it is elevated above its socket permit a switchman to uncouple it without the must be released by impact in order to effect necessity of going between the cars, and the coupling. It is no doubt true, as conhence the coupling device did not literally tended by defendant in error, that the pins or comply with the requirements of either the blocks in most standard automatic couplers federal or state statute. Four witnesses who have a slight shoulder or dog that will hold are experienced railroad men testify that, in them in position above the socket after the order to make a kicking switch of cars, it is lever has been pulled in an uncoupling operanecessary for the brakeman to ride on the tion. The pulling of the lever raises the pin running board of the locomotive for the pur- or block, and releases the knuckle, and thus pose of pulling the pin at the proper time. effects an uncoupling. If the pin drops back In other words, it is contended that the de- to position in the socket, the car will not ceased would have been exactly at the place couple automatically until the pin is again he was if the coupler had been provided raised. All automatic couplers are supposed with the necessary lever so that it could have to have a small shoulder or dog that will been uncoupled or coupled without the neces- hold the pin or block above the socket untii sity of going between the cars. It is absurd there is some jar or impact or movement of the to suppose that, had this coupler been provid- car which will jar it off the shoulder or dog ed with the lever extending to the side of the and permit it to drop of its own weight into car, it would have been practicable for the its socket. It seems, as a mechanical propodeceased to have remained on the ground sition, that any cocking device that would and followed the car so as to have been at hold the pin in position for a switching movethe place to pull the lever when the proper ment such as was made in the case at bar time arrived. The distance traveled and would prevent the contrivance from coupling the speed of the train preclude the possibility by impact. Whether this is true or not, the of any such performance as that. There is evidence in this case fails to show that there no dispute that the only practicable method is any automatic coupler in use, or known, of performing this sort of a switching move with a cocking device which will hold the pin ment is for a man to ride the engine so that in suspension above its socket while the cars he may pull the pin when the required are being shoved or pushed about by the locomomentum is reached, and this is so reason- motive, and, if such a device is known, able that we are forced to the conclusion neither the federal nor state statute requires that the undisputed evidence of these four its use. If the locomotive in question had witnesses must be accepted as true. If, as been equipped with the lever to operate the these witnesses say, it would have been coupler from the side of the car, it would necessary for the deceased to be on the run- still have been necessary for the deceased to ning board even if the locomotive had been have adopted one of three methods in order equipped with the character of coupler re- to uncouple the car in making this switch. quired by law, then how can it be said that If he was able to run along by the side of the his presence upon the running board was locomotive until the time to uncouple, he due to the absence of such coupler?

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 other than flat top cars, such as these were, there is such a coupler known among rail- are required to be equipped with such stirroad men, still the statute declared on does rups and grabirons above, so that the switchnot require all railroads to adopt and use man may stand on the stirrup and support that particular device. Any standard cou- himself with the handholds above, to operate pler which will couple automatically by im- the coupler. The third method was the one pact, and which can be uncoupled without adopted by the deceased; that is, to ride requiring men to go between the ends of cars, upon the foot board of the locomotive and would satisfy the statute. These statutes do from his position reach down in front of him not require automatic couplers with a cock to lift the crank of the lever and thus uncouing device so rigid that it will hold the pin ple the car. Considering the distance travcharacter of the car that was to be kicked,, motion for a directed verdict, and that the it seems to us the witnesses who testify that Appellate Court erred in affirming that judgunder the circumstances of this movement it ment. was necessary for the deceased to ride upon The judgments of the superior court of the foot board of the locomotive in order to Cook county and the Appellate Court for the uncouple these cars state an incontrovertible First District are reversed and the cause is proposition of fact. The presence of the de- remanded to the superior court. ceased upon the foot board of this locomotive Reversed and remanded. was not, therefore, due to the absence of a lever or handle upon the coupler, but was CARTER, J. (dissenting). I cannot agree due to the fact that there was no other with the conclusion stated in the opinion that practicable way in which the operation could the defective coupler was not the proximate be performed.

cause of the injury. The evidence of at least [4] There is another view which may be two witnesses shows that in making such a suggested. Assuming, for the sake of argu- switch or movement as was going on at the ment, that the absence of the lever upon the time of the accident there was no reason coupler in question made it necessary for the why the coupling pin could not be raised

helt deceased to ride upon the running board of either before or at the time the cars were the locomotive, and while so riding there he started, provided the appliances were such was injured by another independent cause that the pin could be held up when once or agency not in any way connected with the raised. It also shows that there were differnegligence complained of, can it be said that ent kinds of couplers in general use which the defective coupling appliances were the would hold the pin up under such circumproximate cause of the injury? It is perfect-stances, and thereby render it unnecessary ly plain that this man was thrown from the and useless for a switchman to ride berunning board by a defect in the brake upon tween the engine and car in making a kickthe locomotive, or by that defect in conjunc-ing switch. The uncontradicted evidence tion with the bad condition of the track. At shows there was no way to keep the coupling the time deceased was thrown from the runs on the engine here in question up, when once ning board the purpose for which he had raised, except by holding it up by the hand; gotten upon it had been accomplished-the that, if it was not thus held up, it would cars had been uncoupled. If, after the un- immediately drop back into place and there. coupling had been effected in safety and the by lock the coupler. The federal and state locomotive separated from the cars, there acts that bear on this subject make it unhad been a good and sufficient brake upon the lawful for any common carrier subject to the locomotive and a good, solid track below the provisions of the acts to haul or use on wheels, there would have been no difficulty its line any engine or car "not equipped with in stopping the locomotive by the application couplers coupling automatically by impact of the brake without throwing the deceased and which can be uncoupled without the from the foot board. But the locomotive had necessity of a man going between the ends no brake. It could only be stopped by revers of the cars.” This necessarily means, also, ing the lever. This imparted a swaying mo- between the end of the engine and a car. tion to it, which, in connection with the de- It was contrary to both of these statutes to fective track, caused the derailment, and the use the engine in question with a coupler deceased was jostled from the foot board in such condition that it was necessary for after the locomotive got off of the rails. Un a switchman to go between the engine and der these facts, the direct and proximate cause the car to uncouple them in making a switch. of the injury was the derailment of the loco- These statutes leave it to the carriers to motive, and the derailment was an independ-adopt whatever particular kind of coupler ent cause, not in any way connected with the they prefer, provided that the coupler used defect in the coupling appliances, that caused be such as will couple automatically and the injury. If the failure to have the locomo- can be uncoupled without the necessity of a tive equipped with an automatic coupler such man going between the engine and the cars. as is required by the statutes does no more If there were no couplers which would perthan to bring about a condition which makes mit an engine and car to be uncoupled withthe injury possible by the intervention of out the necessity of a man going between some other disconnected cause, then the negli- them to make a kicking switch like the one gence complained of is not the proximate in question, it might be claimed that the statcause of the injury. It seems to us that the utes were unreasonable, but the evidence in most that can possibly be said of the negli- this record is that such couplers are in use. gence charged in the declaration is that it If the exercise of reasonable care in mainproduced a condition which, being operated taining the statutory standard of equipment upon by other disconnected acts of negligence, will not exempt a car movement as being becaused the injury complained of.

yond the spirit of the statute, much less will It results from the views which we have mere convenience be accepted as an excuse. expressed that in our opinion the trial court Chicago Junction Railway Co. v. King, 169 erred in not sustaining plaintiff in error's Fed. 372, 94 C. C. A. 657.

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