The Chicago v. Sullivan

• Decision Date: 31 January 1872
• Citation: 63 Ill. 293,1872 WL 8178
• Parties: THE CHICAGO AND ALTON RAILROAD COMPANYv.MARY SULLIVAN, Admx.
• Court: Illinois Supreme Court

63 Ill. 293

1872 WL 8178 (Ill.)

THE CHICAGO AND ALTON RAILROAD COMPANY

v.MARY SULLIVAN, Admx.

Supreme Court of Illinois.

January Term, 1872.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Menard county; the Hon. CHARLES TURNER, Judge, presiding.

Mr. N. W. BRANSON, for the appellant.

Messrs. LACEY & WALLACE, for the appellee.

Mr. JUSTICE SCOTT delivered the opinion of the Court:

This action was brought by the appellee, under the statute, against the appellants, for wrongfully causing the death of William Sullivan. The deceased was an employee of the company, and was, at the time he received the injuries from which he afterwards died, engaged at work on a gravel or dirt train. The accident occurred on the 13th day of May, 1870.

The train on that day was cut in two, so that the dirt could be thrown off on either side of the bridge over Caviness Creek. The train was cut in two some distance before reaching the bridge where the dirt was to be deposited. From that point to the bridge there was a descending grade, and it was the intention of the parties having the train in charge to allow the detached portion to move by its own momentum across the bridge. This it did not do, and for the purpose of moving it across to the desired point, O'Keefe signalled the conductor to move up that portion of the train to which the engine was attached, which he did.

The deceased, Sullivan, was on a flat car loaded with dirt, which stood over the bridge, sitting with his feet hanging between two cars. When the two parts of the train came together it produced a violent shock, which threw Sullivan off the car on to the bridge, and from there he fell to the bottom on some ties, and received injuries from which he subsequently died. The facts most relied on to charge the company with negligence was the unfitness of O'Keefe for the position he occupied, and in his negligence in the conduct of the train on the day the casualty happened, and in keeping him in their service after his unfitness for the position was known or could have been known to them by the exercise of reasonable diligence.

The appellant, however, insists that, if the negligence of any employee of the company produced the injury to the intestate, it was that of a fellow-servant in the same line of employment, and therefore the appellee can not recover.

The doctrine that a servant can not recover from a common master for an injury resulting from carelessness or negligence of a fellow servant in the same line of employment, if the company has used due diligence in the selection of competent agents and servants, and in providing safe and suitable machinery and road bed, has been fully established by cases determined in this court: Honner v. Ill. Cen. R. R. Co. 15 Ill. 550; Ill. Cen. R. R. Co. v. Cox, 21 Ill. 25; C. and A. R. R. v. Murphy, 53 Ill. 336.

There are some duties that the company itself can not delegate to servants so as to avoid responsibility. It is the imperative duty of the company to provide suitable and safe machinery for the use of their employees, and a safe and secure road bed. C. and A. R. R. Co. v. Shannon, 43 Ill. 338; C. and N. W. R. R. Co. v. Swett, 45 Ill. 197.

In the latter case cited, it was held that the doctrine, an action will not lie by a servant against his principal for an injury sustained through the fault of a fellow servant, applies only to cases where the injury complained of occurs without the fault of the principal, either in the act which caused the injury, or the employment of the person who caused it.

It will be conceded that, if the employees in charge of the train were incompetent and unskillful, and that it was through their negligence or unskillfulness that Sullivan was injured, and that the company was guilty of negligence in the employment or retention of such agents, that then the company is liable.

Through whose fault, then, did the accident happen, and was the company in any manner guilty of carelessness or negligence in regard to the cause that produced the injury, or in the employment or retention in their service of the person who caused it?

It appears from the evidence that O'Keefe was in charge and had control of the hands employed on the train. It was his duty to hire and discharge them, and to direct their movements. In a certain sense he had charge of the entire train and its management; and, as Morse, the superintendent of the Jacksonville division of appellant's road, states, “In fact, the conductor and engineer were to some extent under his charge.” It was through his instruction that the train was separated, and when the detached portion failed to reach the desired point, it was through his direction to the conductor that the engine moved up that caused the fatal injury.

It is true, as the witnesses state, that the engineer was not bound to and would not obey...