Wabash, St. L.&P. Ry. Co. v. Hawk

• Decision Date: 17 June 1887
• Citation: 12 N.E. 253,121 Ill. 259
• Parties: WABASH, ST. L. & P. RY. CO. v. HAWK.
• Court: Illinois Supreme Court

121 Ill. 259

12 N.E. 253

WABASH, ST. L. & P. RY. CO.

v.HAWK.

Supreme Court of Illinois.

June 17, 1887.

Error to appellate court, Second district.

Case by Hawk, defendant in error, against the Wabash, St. Louis & Pacific Railway Company, plaintiff in error, to recover damages for a crushed ankle. The facts appear in the opinion.

The following instructions were given for the plaintiff:

‘(1) The court instructs the jury that if you believe from the evidence that the plaintiff, William Hawk, was employed by the defendant to assist in the removal of cars wrecked on its said road, it then and there became the duty of the defendant to provide and use such machinery, apparatus, and appliances, and other necessary means and material, suitable and proper to the prosecution of the said business in which the plaintiff was so employed, so as to insure a reasonable degree of safety to life and security against injury, and if you further believe, from the evidence, that the said defendant failed and neglected to furnish and use such machinery, apparatus, and appliances, and other necessary means and material, suitable and proper for the safe performance of such work, and that, in consequence of such failure and neglect on the part of defendant, the plaintiff, while in the discharge of his duty as such servant, in the work aforesaid, and in the exercise of all due care and caution on his part, received the injury in question, then you should find the defendant guilty.

‘(2) The court instructs the jury that if you believe from the evidence that plaintiff was employed by an agent or servant of the defendant to assist in removing wrecked cars from its said road, and that such servant had such authority to employ and direct plaintiff, and that said plaintiff entered upon such work under such employment, and received the injury in question while acting under and obeying the special instructions and orders of such servant, and in consequence thereof, then such injury, if proven, was not received by the plaintiff through the negligence or acts of a fellow-servant in the same line of employment; and provided you further believe from the evidence that such injury was solely in consequence of the negligence of such servant, as representative of the defendant, in ordering the plaintiff, with others, to remove said wreck by hand, if you believe from the evidence that Button gave the order to so remove the car, and that mode of removing the car was not a reasonable and prudent mode of so removing, and that the plaintiff was in the exercise of ordinary care in obeying said order, and while at the work.

‘(3) The court instructs the jury that one servant of a corporation, to whom the corporation delegates the power of hiring other servants, and in whom the corporation invests the sole control and direction of such other servants in and about the work which they may be ordinarily required to do, is, as to such servants he so hires and controls, the representative of the master when exercising such power of control, and is not a fellow-servant, and is not, under such state of facts, if proven by the evidence, in the same line of employment as the servant whom he so controls.

‘(4) The court instructs the jury that if you believe from the evidence that the plaintiff, William Hawk, was employed by the defendant to assist in the removal of cars wrecked on its said road, it then and there became the duty of the defendant to provide such machinery, apparatus, and appliances, and other necessary means, suitable and proper to the prosecution of the said business in which the plaintiff was so employed, so as to insure a reasonable degree of safety to life and security against injury, so far as could be reasonably done in that line of employment; and although you may believe from the evidence that said defendant had such machinery and appliances near at hand, but carelessly and negligently failed to use the same, and ordered said plaintiff and others to take hold of said car and remove the same; and that the means ordered to be used in removing the car was not a reasonably prudent mode, under the circumstances; and that, in consequence of such neglect on the part of defendant, the plaintiff, while in the discharge of his duty as such servant in the work aforesaid, and in the exercise of all due care and caution on his part, received the injury in question,-then you should find the defendant guilty, and assess the plaintiff's damages to such an amount as you may believe, from all the evidence and circumstances proven in the case, he has sustained, not exceeding fifteen thousand dollars, the amount claimed in the declaration.

‘(5) The court instructs the jury that if you believe from the evidence, under the instructions of the court, that the plaintiff is entitled to recover, then, in fixing the amount of damages which he ought to recover, the jury should take into consideration all the circumstances surrounding the case, so far as these are shown by the evidence,-such as the circumstances attending the injury; the loss of time of the plaintiff, if any, occasioned by the injury; the bodily pain he has suffered, if any; the money he has expended, if any, to be cured of such injury; the business he was engaged in, if any, at the time he was injured; and the extent and duration of the injury,-and give the plaintiff such damages as the jury believe, from the evidence, he has sustained, not exceeding the amount claimed in the declaration.’

The following instructions were asked by the defendant:

‘The substantial grounds of complaint, as stated in plaintiff's declaration, are- First, that it was the duty of defendant to furnish suitable and safe appliances to be used in doing the work in question, and that it negligently failed to furnish such suitable and safe appliances, whereby plaintiff was injured; second, that plaintiff was injured by reason of the negligence of an agent of the defendant in giving the order to raise the car in question, such agent then and there having the power and authority to give orders and directions for the performance of the work in question, and was then and there exercising such power and authority, and then and there had full control and superintendence of said work, and the details thereof. As to the first ground of complaint: If the jury believe from the evidence that the defendant, at the time in question, had furnished suitable and safe appliances for the doing of the work in question, and that the same were upon the ground to be used in doing the work, and that the servant of defendant, having charge of and controlling and directing said work, instead of using the appliances, advised or directed the use of other means to lift the car in question, in consequence of which plaintiff was injured, then the court instructs you that the plaintiff cannot recover in this action upon the ground that defendant failed to furnish suitable and safe appliances for doing said work.

‘(2) To render the defendant liable for an...