Boyd v. Chicago & N.W. Ry. Co.

• Citation: 75 N.E. 496,217 Ill. 332
• Court: Illinois Supreme Court
• Decision Date: 24 October 1905
• Parties: BOYD v. CHICAGO & N. W. RY. CO. et al.

217 Ill. 332

75 N.E. 496

BOYD

v.CHICAGO & N. W. RY. CO. et al.

Supreme Court of Illinois.

Oct. 24, 1905.

Error to Appellate Court, Second District.

Action by Charles L. Boyd, administrator, against the Chicago & Northwestern Railway Company and others. Judgment for certain defendants was affirmed by the Appellate Court, and plaintiff brings error. Affirmed.

Hiram Blaisdell and Oliver R. Barrett, for plaintiff in error.

Stevens & Horton, for defendants in error.

CARTWRIGHT, J.

B. W. Goens was a subcontractor under George C. Smith for grading and preparing a part of the roadbed for a railroad track. Goens hired John Lyons as a laborer, and Lyons was injured by the falling of clay from the face of a bank in widening a cut, and died from his injuries. Plaintiff in error, as administrator of the estate of Lyons, sued Goens and Smith and the defendants in error, the Chicago & Northwestern Railway Company and the Peoria & Northwestern Railway Company, to recover damages, alleging that the death of Lyons was caused by negligence in respect to the bank and in the management and control of the work. At the close of the evidence for the plaintiff the court directed a verdict of not guilty as to the two railway companies and Smith, but denied a motion of Goens to direct a verdict of not guilty as to him. Goens then introduced evidence, after which, on motion of plaintiff, the court set aside the order directing a verdict as to Smith, and the plaintiff thereupon dismissed his suit as to Smith and Goens. A verdict was returned as to the railway companies in accordance with the direction of the court, and the plaintiff moved for a new trial as to said companies. The court overruled the motion for a new trial and rendered judgment on the verdict. Upon a writ of error from the Appellate Court for the Second District the judgment was affirmed and a certificate of importance was granted, under which a writ of error was sued out of this court to review the judgment of the Appellate Court.

The Peoria & Northwestern Railway Company procured the right of way from Peoria to Nelson, on the Chicago & Northwestern Railway, and transferred the right of way to the Chicago & Northwestern Railway Company. The grading of the roadbed was done under a contract between the Chicago & Northwestern Railway Company and Winston Bros., of Minneapolis. Winston Bros. sublet a part of the grading to Smith, and Smith again sublet a part of what had been sublet to him to Goens. Lyons was hired by Goens, and was shoveling gravel into a car when the overhanging clay fell and struck him. Counsel are agreed as to the rules of law governing the liability of railway corporations in such cases, and the controversy relates only to the application of such rules to this case. A railway corporation will be held liable for the wrongful act of a contractor while exercising, with the assent of the corporation, some chartered power or privilege of the corporation which he could not have exercised independently of its charter; but it will not be liable for the wrongful act of an independent contractor not exercising any special power derived from the charter. 1 Thompson on Negligence, § 671; 3 Elliott on Railroads, § 1063.

In the brief and argument for plaintiff in error it is stated that, in order to establish the liability of defendants in error, the fact must appear ‘that the contractor was exercising, with the assent of the railroad companies, some power which he could not have exercised independently of their charter.’ A railway corporation takes the responsibility of seeing that no wrong is done through the exercise of its chartered powersby persons whom it permits to exercise them, and, if the corporation has a public or statutory duty to perform, the employment of an independent contractor with control of the work will not relieve it from liability. It must perform such duties or be liable for any neglect thereof. The question in this case is whether the construction of a railway by a contractor upon the right of way and property of the railway corporation is the exercise of chartered powers or privileges by the contractor, and it is answered in the negative by the decision in the case of West v. St. Louis, Vandalia & Terre Haute Railroad Co., 63 Ill. 545. In that case the railway company contracted with a firm of contractors to construct its railroad and appurtenances. A servant of the contractors was injured by the use of a poisonous mixture upon the timbers of a freight house. It was decided that the railway company, in letting the contract, did not commit the execution of any of its franchises to the contractors, and that the contractors, in hiring the plaintiff, were only exercising their private and natural right, and not any special power derived from the charter of the corporation. The settled rule was recognized and stated, and the court pointed out that there was a radical difference between that case and previous ones in which a...