Abend v. Haute

• Decision Date: 27 September 1884
• Citation: 111 Ill. 202,53 Am.Rep. 616,1884 WL 9949
• Parties: EDWARD ABENDv.TERRE HAUTE AND INDIANAPOLIS RAILROAD COMPANY.
• Court: Illinois Supreme Court

111 Ill. 202

1884 WL 9949 (Ill.)

53 Am.Rep. 616

EDWARD ABEND

v.TERRE HAUTE AND INDIANAPOLIS RAILROAD COMPANY.

Supreme Court of Illinois.

Filed at Mt. Vernon Sept. 27, 1884.

OPINION TEXT STARTS HERE

WRIT OF ERROR to the Appellate Court for the Fourth District;-- heard in that court on writ of error to the Circuit Court of St. Clair county; the Hon. GEORGE W. WALL, Judge, presiding.

Mr. JAMES M. DILL, Mr. W. H. BENNETT, and Mr. J. M. FREELS, for the plaintiff in error:

The ruling of the circuit court in withdrawing the proofs from the jury, and instructing them to find for the defendant, was an unwarrantable invasion of the province of the jury. The question of negligence is one of fact for the jury, and not of law for the court. ( Hubner v. Feige, 90 Ill. 212.) As to the proper practice, see Amos v. Sinnott, 4 Scam. 447; Deshler v. Beers, 32 Ill. 369; People v. Brown, 3 Gilm. 87; Crowley v. Crowley, 80 Ill. 469.

If the evidence even tended to show a right of recovery, the court had no power to take the case from the jury. Guerdon v. Corbell, 87 Ill. 272; Pennsylvania Co. v. Conlan, 101 Id. 95.

Whether or not Beasley was guilty of negligence which contributed to the injury, was a question of fact to be found by the jury, under proper instructions from the court. Railroad Co. v. Bonifield, 104 Ill. 224; Pennsylvania Co. v. Conlan, 101 Id. 94; Railway Co. v. Elliott, 98 Id. 481; Lasure v. Granville Manf. Co. 18 S. C. 275.

The definition of negligence is a question of law for the court, but it is always a question of fact, to be determined, from the evidence, by the jury, whether a given case falls within that definition. Railroad Co. v. Morgenstern, 106 Ill. 220.

The negligence of the plaintiff which defeats his recovery must be the proximate cause of the injury. Fowler v. Railroad Co. 8 Am. & Eng. Ry. Cases, 482; Frink v. Potter, 17 Ill. 411.

Plaintiff's contributory negligence must have immediately or proximately contributed to the result. Weeks v. Railway Co. 8 Am. & Eng. Ry. Cases, 314.

The question of comparative negligence is also a question of fact for the jury. Railroad Co. v. Bonifield, 104 Ill. 224.

Taking these questions of fact from the jury can not be sustained except by overruling the cases of Frink v. Potter, 17 Ill. 406, Railroad Co. v. Morgenstern, 106 Id. 220, Railroad Co. v. Bonifield, 104 Id. 224, Pennsylvania Co. v. Conlan, 101 Id. 94, and Railway Co. v. Elliott, 98 Id. 481.

Beasley was killed through the negligence of the persons having charge of the train. He had no control over their actions, and as to them was not a fellow-servant, engaged in a common work. Bartonshill Coal Co. v. Reid, 3 Macq. 266; Gray v. Bressy, 15 Court of Sess. 135; Railroad Co. v. Keefe, 47 Ill. 110; Ryan v. Railroad Co. 60 Id. 173; Railroad Co. v. Powers, 74 Id. 345; Railroad Co. v. Moranda, 93 Id. 324; Railroad Co. v. Collins, 2 Duv. 114; Gillenwell v. Railroad Co. 5 Ind. 340; Cooper v. Mullens, 30 Ga. 150.

The rule to be deduced from all these cases is, that when the injured servant has no control over the offending servant, then they are not fellow-servants. Dowling v. Allen & Co. 74 Mo. 13; Railroad Co. v. Fort, 17 Wall. 557; Wood on Master and Servant, secs. 390, 436, 439; Cooley on Torts, 555; 2 Thompson on Negligence, 976.

Who are fellow-servants in a given case, like the question of negligence, is a question of fact for the jury, and not of law for the court. Whether Beasley and the engineer were fellow-servants depended upon a variety of facts, which had to be proven before the jury, and from the facts thus proven it was for the jury then to say whether the two servants, in the discharge of their duties, were fellows; and it was error in the court to deprive the jury of this right. Railroad Co. v. Morgenstern, 106 Ill. 220; Railway Co. v. Moranda, 108 Id. 581.

Mr. JOHN B. BOWMAN, for the defendant in error:

Beasley was not a passenger, but a servant being carried to the place he was needed. Even if he had been in the car provided for him, he would be no more a passenger than were Keefe, in 47 Ill. 108, or Britz, in 72 Id. 256, or Cox, in 21 Id. 23, or Durkin, in 76 Id. 395. He was simply a servant, with privilege to ride free. Ryan v. Railroad Co. 23 Pa. St. 384; Gillehannon v. Railroad Co. 10 Cush. 228; Seaver v. Railroad Co. 14 Gray, 466.

That Beasley was a fellow-servant with the conductor and fireman, see Keefe's case, 47 Ill. 110; Gartland's case, 67 Id. 498; Railroad Co. v. Moranda, 93 Id. 320. The court may exclude all the evidence when there is no proof tending to prove a material fact. Frazer v. Howe, 106 Ill. 573; Crowley v. Crowley, 80 Id. 469; Smith v. Gillett, 50 Id. 290; Poleman v. Johnson, 84 Id. 269.

The material issues presented by the allegations of the declaration are: First, was Beasley a passenger? Second, was he in the exercise of due care and caution? Third, was he a fellow-servant with defendant's servant through whose fault the collision occurred which resulted in his death?

Mr. JUSTICE MULKEY delivered the opinion of the Court:

This action was brought by Edward Abend, the plaintiff in error, as administrator of Thomas Beasley, against the Terre Haute and Indianapolis Railroad Company, the defendant in error, to recover damages for personal injuries received by the plaintiff's intestate in a railroad collision, resulting in the latter's death, alleged to have been occasioned by the negligence of the company. The cause was tried in the St. Clair circuit court, where the action was brought, resulting in a verdict and judgment for the defendant. The judgment having been affirmed by the Appellate Court for the Fourth District, the plaintiff in error brings the record here for review.

On the trial in the circuit court, after the evidence on the part of the plaintiff was in, the defendant declined to offer any testimony, and the court, at its instance, instructed the jury to find the issues for the defendant, which it did, and the ruling of the court in thus withdrawing the case from the jury presents the ultimate question for determination.

The circumstances under which Beasley was killed, and which gave rise to the present litigation, are as follows: On the 25th of June, 1880, one of the defendant's trains was wrecked on its road, near Confidence Hill, in Madison county, this State. On the following day the deceased, being an employe of the company, together with a number of others, was ordered by the proper officer of the company to go out from East St. Louis, on a wrecking train of the defendant, to the place of collision, for the purpose of assisting in removing the wreck, which he proceeded to do. The train was under the control of one Busse, who acted in the capacity both of conductor and engineer. Beasley, instead of taking a seat in the wrecking car, as he should have done, in violation of a published rule of the company of many years' standing, and of which, from the circumstances, he must have had notice, got on the locomotive and took a seat on the fireman's side, immediately in front of Cope, the fireman, the train moving off as he did so, in which position he remained until a short time afterwards, when the locomotive upon which he was riding collided with the engine of a freight train coming in the opposite direction, causing his immediate death. The train upon which the deceased was riding was what is known, particularly among railroad men, as a “wild train,”--that is, a train not running by schedule, but under special instructions. By the orders delivered to Busse he was expressly directed to keep out of the way of the very train with which his own train collided. This he neglected to do,--hence the collision, and the serious consequences resulting therefrom.

The declaration charges, in substance, that Beasley, by order of the company, went aboard the train for the purpose indicated, and that while it was proceeding to the wreck, under the control and management of the servants of the defendant, it came in collision with a freight train belonging to and under the control of the defendant, whereby the said Beasley was instantly killed; that at the time he was so killed he was exercising due care and caution, and that such killing was without any fault or misconduct on his part, and that he was not, at the time in question, a fellow-servant with the servants of the defendant who were operating said train, or either of them; that said Beasley then was, and prior thereto had been, in the employ of the defendant as its head blacksmith, and when so killed he was proceeding to said wreck, by defendant's order, in his capacity as such blacksmith, which is a distinct and different line of employment from that of the other servants of the defendant, etc. These allegations were all traversed by the defendant's plea, and thereby put directly in issue.

The proofs clearly establish most of the issuable facts essential to a recovery. But do they show, or tend to show, the deceased was exercising due care at the time of the collision, or that the deceased was not at such time a fellow-servant with the servants of the company through whose negligence the collision happened? We are of opinion they do not. It follows, therefore, the trial court ruled properly in withdrawing the case from the jury. What evidence is there in this case tending to show that the deceased was using due care at the time of the accident? None, that we can see. Instead of taking a seat in the wrecking car, (the safest and most appropriate place, especially in case of collision or other accident,) as he should have done, and, indeed, as he was requested to do, he deliberately, in violation of an express rule of the company, took a seat upon the locomotive, where he...