Chicago, R.I.&P. Ry. Co. v. Rathneau

• Decision Date: 21 February 1907
• Court: Illinois Supreme Court
• Parties: CHICAGO, R. I. & P. RY. CO. v. RATHNEAU.

225 Ill. 278

80 N.E. 119

CHICAGO, R. I. & P. RY. CO.

v.RATHNEAU.

Supreme Court of Illinois.

Feb. 21, 1907.

Appeal from Appellate Court, First District.

Action by Joseph Rathneau against the Chicago, Rock Island & Pacific Railway Company. There was a judgment of the Appellate Court affirming a judgment for plaintiff, and defendant appeals. Affirmed.

Benjamin S. Cable, for appellant.

James C. McShane, for appellee.

VICKERS, J.

This was an action on the case begun in the superior court of Cook county. The declaration consisted of one count, in which it was averred, in substance, that the plaintiff, April 18, 1902, was employed by the defendant as a laborer to work with a certain gang engaged in loading iron rails on a flat car at Blue Island; that the defendant had a foreman in charge of plaintiff and said other laborers engaged as aforesaid, whose orders it was their duty to obey, and who was not plaintiff's fellow servant, but was a vice principal of the defendant; that plaintiff and his co-laborers, by the direction of said foreman, placed two long iron rails with one end of each on the flat car and the other ends thereof on the ground, said rails to be used as skids in skidding rails from the ground onto the car and loading the car; that after said rails to be so used were placed, said foreman negligently so placed a stake in the side and at one end of said car so high that it would strike and tip the rails while being skidded from the ground onto the car, thereby rendering the work extraordinarily dangerous; that, while said stake was so placed said foreman negligently ordered plaintiff and his co-laborers to skid said rails onto the car, and while, in obedience to said order, they were skidding a rail from the ground onto the car, and while plaintiff was exercising ordinary care for his safety, one end of the said rail came in contact with the stake, and the rail was turned over, slid down the skid, and caught and crushed so severely the plaintiff's ankles that they have become and are permanently crippled and their usefulness is permanently impaired, etc. The appellant company filed a plea of not guilty. Upon a hearing the jury found the issues for the appellee. A motion for new trial was overruled, and judgment in the sum of $12,500 was entered on the verdict. An appeal was prosecuted to the Appellate Court for the First District, where the judgment was affirmed, and the record is before us by a further appeal prosecuted by the appellant.

At the close of all the evidence the appellant company filed a motion for a peremptory instruction to take the case from the jury, which was overruled, and it is here urged the court erred in such ruling. It is insisted by the appellant company that, if the appellee ‘was injured by the act of some other person or by the negligence of any one than himself, this other person was either O'Rourke or some other member of the gang, and in either event a fellow servant.’

The injury occurred on the 18th day of April, 1902. The appellee, at the time of the injury, had only been in the employ of the appellant company for nine days. The evidence shows that on the first eight days of his employment he was engaged in other work. On the day of the injury appellee was directed to help in loading rails upon a flat car, and he had never been engaged in such work before that time. The car onto which the rails were being loaded stood north and south. The rails were old ones which had been taken up from the track and weighed from nine to eleven pounds per foot, some of them being thirty feet long and others shorter, and they were piled on the ground a short distance west of the car and were loaded onto the car from its west side. There were two long, perpendicular stakes driven into holes or pockets on the east side of the car to keep the rails in when loaded onto it from the west side, and there were two men on the car to receive and pile the rails when they came onto the car. Two greased rails were placed about seven feet apart about the middle part of the west side of the car, their upper ends resting on the side of the car, or on rails at that side, and their lower ends on the ground a short distance from the pile of rails to be loaded. These rails were used as skids on which to shove the rails onto the car. The farther or east side of the car was first loaded to the required height, the loading gradually approaching the west side of the car, and when the loading reached to within a short distance from the west side of the car it became necessary to drive two short stakes into the pockets on the west side of the car to prevent the rail or rails then placed under the upper ends of the skids from being crowded off the car by the rails already loaded. The flat part of the rail, when being shoved up, was next to the skids. The rails were shoved up by the men by means of round sticks about one and three-quarters inches in diameter, with a block end. There was danger that if a rail being shoved up should come in contact with anything and turn over, the men shoving it would lose their hold on it by their sticks being thrown out of place and it would slide down the skids. The man alleged to have been in charge of the gang of workmen was Peter O'Rourke, and the evidence not only tends to show, but does show, that O'Rourke was directing the men in the work and gave orders as to the means to be adopted in performing the same. The two stakes above referred to were put in by O'Rourke. The evidence clearly shows that the stake at the south end of the car was higher than the skids upon which the rails were being raised and put on the car. The proof shows that the attention of O'Rourke was called to the fact that the stake extended above the skids, and when his attention was so called he made no effort to drive the stake further into the slot on the side of the car or to chop or saw off the stake, but called to the gang on the ground to proceed with the work of pushing the rails up. The men obeyed the direction, and the evidence tends to show that when the rail reached the top of the skids it caught or hit on the stake, causing the rail to turn, whereby the gang pushing the rail lost control of it, and it slid back down the skids, and caught the appellee, and injured him.

The evidence, we think, tends strongly to show that O'Rourke was the foreman in charge of the gang, and the giving of the order to push the rails up caused the injury to appellee, and that he gave the order to the men to push up the rail when he knew the stake was too high. The witnesses, when speaking of O'Rourke, called him the ‘foreman’ or ‘boss.’ The evidence of O'Rourke himself shows that he was directing the men, for he testified that he kept telling the men ‘to be careful.’ It was shown O'Rourke's attention was called to the fact that the stake was too high, and that, instead of attempting to lower it, he directed the men to proceed to load the rail. O'Rourke testified he knew the stake was too high, but that he had no ax or saw with which to reduce its height, and that he used the shortest stake he had there. It was not necessary for appellee to show, in order to prove O'Rourke was a vice principal, that O'Rourke had the power and authority to employ and discharge the men under him. ‘The mere fact that he [the foreman] had no power to...