The Chicago v. May

Citation1883 WL 14102,108 Ill. 288
PartiesTHE CHICAGO AND ALTON RAILROAD COMPANYv.CAROLINE MAY, Admx.
Decision Date31 January 1884
CourtSupreme Court of Illinois

OPINION TEXT STARTS HERE

APPEAL from the Appellate Court for the Third District;--heard in that court on appeal from the Circuit Court of McLean county; the Hon. OWEN T. REEVES, Judge, presiding.

Messrs. WILLIAMS, BURR & CAPEN, for the appellant:

The admission of evidence tending to show the poverty of the deceased was error, the only question in this regard being what is the actual pecuniary damage resulting to the widow and next of kin. Chicago and Northwestern R. R. Co. v. Moranda, 93 Ill. 302; Chicago v. O'Brennan, 65 Id. 160; Pittsburg, Ft. Wayne and Chicago Ry. Co. v. Powers, 74 Id. 341.

The common master is not responsible for an injury to one employee caused by the negligence of a fellow-employee in the same line of employment. Chicago and Alton R. R. Co. v. Murphy, 53 Ill. 336; Valtez v. Ohio and Mississippi R. R. Co. 85 Id. 500; Illinois Central R. R. Co. v. Keen, 72 Id. 512; Honner v. Illinois Central R. R. Co. 15 Id. 550; Illinois Central R. R. Co. v. Cox, 21 Id. 20; Lalor v. Chicago, Burlington and Quincy R. R. Co. 52 Id. 401; Chicago and Alton R. R. Co. v. Keefe, 47 Id. 108.

Under the undisputed facts of this case, Fricke and the deceased were fellow-servants; the former was, in no sense, the alter ego of the master, so as to render it liable for his mere personal negligence. Hart v. Peters, 14 Wis. 542; State v. Malster, 26 Md. 176; Crispin v. Babbitt, 81 N. Y. 516; Howells v. Landore Steel Co. 11 Moak, 153; Peterson v. W. C. and M. Co. 50 Iowa, 673; Corcoran v. Holbrook, 59 N. Y. 517; Lehigh Valley Coal Co. v. Jones,86 Pa. St. 432; Delaware and Hudson Canal Co. v. Carroll, 89 Id. 374; McAndrews v. Burns, 39 N. J. 117; Beanlieu v. Portland Co. 48 Maine, 291; Feltham v. England,L. R. 2 Q. B. 33; Blake v. M. C. R. R. Co. 70 Maine, 60; K. P. Ry. Co. v. Salmon, 11 Kan. 83; Murphy v. Smith, 115 E. C. L. 361; Hard, Admr. v. V. and C. R. R. Co. 32 Vt. 472; Wigmore v. Jay, 5 Exch. 354; Gallagher v. Piper, 111 E. C. L. 668; William v. Carlter, 52 Mo. 372; Albro v. Agawam Canal Co. 6 Cush. 75; Lawler v. A. R. R. Co. 62 Maine, 463; Marshall v. Schrieker, 63 Mo. 308; O'Connell v. Baltimore and Ohio R. R. Co. 20 Md. 21; Schauch v. N. R. R. Co. 25 Id. 462; O'Connor v. Roberts, 120 Mass. 227; Zeigler v. Day, 123 Id. 152; Wilson v. Merry,L. R. 1 H. L. 321.

No distinction as to the liability of the common master arises from the different grades or ranks of the servants employed. See all the above cases, and, also, Faulkner v. E. R. R. Co. 49 Barb. 324; Weger v. Pennsylvania R. R. Co. 55 Pa. 460; Sherman v. R. and S. R. R. Co. 17 N. Y. 153; Wright v. New York Central R. R. Co. 25 Id. 562; Searle v. Lindsay, 103 E. C. L. 429; Collier v. Steinhart, 51 Cal. 116; Summersell v. Fish, 117 Mass. 312; Holden v. Fitchburg R. R. Co. 129 Id. 268; Cooley on Torts, 544, 561-563.

It would seem that the law could go no further than to hold the corporation liable for the acts and negligence of the officer exercising the powers and authority of general superintendent. Cooley on Torts, 562; Wharton on Negligence, secs. 229, 240, 241; Moak's Underhill on Torts, 50.

When the facts are not controverted, the question as to what is a fellow-servant is a pure question of law. This is elementary. Crispin v. Babbitt, 81 N. Y. 516; Marshall v. Schrieker, 63 Mo. 308; Albro v. Agawam Canal Co. 6 Cush. 75; Farwell v. B. and W. R. R. Co. 4 Metc. 49.

Messrs. FIFER & PHILLIPS, and Mr. WM. E. HUGHES, for the appellee:

The question what were Fricke's powers, and how far he stood in the company's place and represented it to the men, is one of fact only, that is conclusively settled by the verdict. Mullen v. Steamship Co.78 Pa. St. 25; Lehigh Valley Coal Co. v. Jones, 86 Id. 432; Delaware and Hudson Canal Co. v. Carroll, 89 Id. 374; Toledo, Wabash and Western Ry. Co. v. Moore, 77 Ill. 217; Chicago, Burlington and Quincy R. R. Co. v. Gregory, 58 Id. 284.

There was no error in proving who May's family were, and that in his lifetime he supported them. Chicago and Northwestern R. R. Co. v. Moranda, 93 Ill. 302. When the master gives over the whole charge of his business to another, the person to whom such power is delegated stands in the master's place to all subordinates, and his negligence is chargeable to the master. Wood's Law of Master and Servant, p. 764, sec. 390.

The master is liable for an injury to a servant resulting from the orders of a superintendent or other employee or agent having the supervision of the work, and power to employ, direct and discharge the laborers. Lalor v. Chicago, Burlington and Quincy R. R. Co. 52 Ill. 401; Gormly v. Vulcan Iron Works, 61 Mo. 492.

Negligence by a representative of the master, arising in the form of improper orders and directions given about the work and in the control of operatives, will render the master liable. Lalor v. Chicago, Burlington and Quincy R. R. Co. 52 Ill. 401; Chicago, Burlington and Quincy R. R. Co. v. McLallen, 84 Id. 116; Dowling v. Allen, 74 Mo. 13; Railroad Co. v. Fort, 17 Wall. 553; Chicago Ry. Co. v. Bayfield, 37 Mich. 205; Frost v. Union Pacific Ry. Co. 11 Am. L. R. 101; Mann v. Oriental Print Works, 11 R. I. 153; Keegan v. Cavanaugh, 62 Mo. 230; Borea Stone Co. v. Krafts, 31 Ohio St. 287; Murphy v. Smith, 115 E. C. L. 361; Crispin v. Babbitt, 81 N. Y. 516; Thompson on Negligence, p. 975, sec. 5; Mullen v. Steamship Co.78 Pa. St. 25; Corcoran v. Holbrook, 59 N. Y. 517; Laning v. New York Central R. R. Co. 49 Id. 521; Little Miami R. R. Co. v. Stevens, 20 Ohio, 415; L. and N. R. R. Co. v. Collins, 2 Duvall, 114; Malone v. Hathaway, 64 N. Y. 5; Shearman & Redfield on Negligence, (3d ed.) secs. 102, 103; Wharton on Negligence, sec. 229; 2 Thompson on Negligence, pp. 1028, 1031, secs. 34, 35; Cooley on Torts, 562.

The question whether servants are in the same line of employment is properly left to the jury. Toledo, Wabash and Western Ry. Co. v. Moore, 77 Ill. 217; Chicago, Burlington and Quincy R. R. Co. v. Gregory, 58 Id. 284. Mr. JUSTICE MULKEY delivered the opinion of the Court:

This action was brought in the McLean circuit court, by Caroline May, the appellee, as administratrix of her late husband, Christian May, against the Chicago and Alton Railroad Company, for negligently and wrongfully causing his death. There was a trial upon the merits in the circuit court, resulting in a judgment for the plaintiff for $3250, which, on appeal to the Appellate Court for the Third District, was affirmed, and the company brings the case here for review.

In view of the legal questions presented by the record and discussed by counsel, we deem it proper to state the circumstances immediately connected with the death of the deceased with some particularity. They are in substance as follows: The deceased, at the time of his death, was one of a number of hands in the employment of the railroad company in a lumber yard connected with its work shops, at Bloomington, under the immediate control and charge of one Frederick Fricke, who was also in the employment of the company, as foreman of the lumber yard. Immediately before the death of May, we find Fricke, together with a squad of these hands, including the deceased, engaged in removing a lot of lumber from the yard to the car shops. The lumber in question consisted of a pile of heavy oak plank, some sixteen feet long. For the purpose of removal it had already been placed upon a small, light car, some six or eight feet long, called a “rubble car,” which was used in handling lumber in the yard and in removing it to the shops. The lumber, as well as the car, was at the time sheeted with ice and snow. The car thus loaded stood on the track north of the shops, and immediately south of it, on the same track, stood a large box car which had to be got out of the way before the lumber could be run down into the shops. To get this car out of the way it was necessary that both cars should be pushed some distance north, beyond a switch, so the box car could be switched off to one side, and by that means let the rubble car, so loaded, pass back south into the shops. To accomplish this object Fricke ordered the men to push the box car against the rubble car, which shoved the lumber so far over on the north end of it that the small car, thus loaded, would have tipped up and thrown the lumber out, but for the fact the bumper of the box car held it down. The two cars were pushed in this manner till they passed the switch, when Fricke ordered the men to leave the small car where it was, and push the large one south, out of the way. Two of the men, Grenz and Schmekel, went to the north end of the planks, as they lay projected on the rubble car, and held them up, while the other hands commenced pushing the large car, as directed by Fricke, and as soon as the cars were sufficiently separated, some of the men, including May, went in between the two cars, to enable them to push with more effect. While matters were in this situation, Fricke called Grenz and Schmekel to also come and help push the large car, whereupon they told him the plank would fall and some one would get hurt. Notwithstanding this admonition and warning, Fricke repeated his order with emphasis, saying, “Let the lumber go to the devil.” The order was obeyed, and instantly the north end of the lumber fell to the ground, tilting up the south end of the little car and driving it forward with great force against the end of the car being thus shoved. The action of the car was so instantaneous the parties pushing at the end of the box car had no time to escape, and the deceased was caught between the bumper of the large car and the rubble car, thereby inflicting injuries from which he subsequently died.

The material portion of the declaration, wherein the cause of action is formally set forth, charges that the...

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