Chicago & Alton R.R. Co. v. O'bryan

• Decision Date: 31 May 1884
• Citation: 15 Bradw. 134,15 Ill.App. 134
• Court: United States Appellate Court of Illinois
• Parties: CHICAGO & ALTON RAILROAD CO.v.BRIDGET O'BRYAN, Adm'x, etc.

15 Ill.App. 134

15 Bradw. 134

CHICAGO & ALTON RAILROAD CO.

v.BRIDGET O'BRYAN, Adm'x, etc.

Appellate Court of Illinois, Third District.

May Term, 1884.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of McLean county; the Hon. O. T. REEVES, Judge, presiding. Opinion filed May 22, 1884.

Messrs. WILLIAMS, BURR & CAPEN, for appellant; as to an employe assuming the usual or ordinary risks of employment, cited C. & N. W. Ry. Co. v. Donahue, 75 Ill. 106; I. C. R. R. Co. v. Welch, 52 Ill. 183; I., B. & W. Ry. Co. v. Flanigan, 77 Ill. 365; T., W. & W. Ry. Co. v. Durkin, 76 Ill. 395; Cooley on Torts, pp. 541, 551-2.

Where the injury is caused by the negligence of a fellow servant in the same line of employment, the common master is not liable: T., W. & W. Ry. Co. v. Durkin, 76 Ill. 395; C. & A. R. R. Co v. Keefe, 47 Ill. 108; C. & A. R. R. Co. v. Rush, 84 Ill. 570; Valtez v. O. & M. Ry. Co., 85 Ill. 500; C. & N. W. Ry. Co. v. Moranda, 93 Ill. 302.

As to who are fellow servants: Wood on Master and Servant, §§ 425, 427, 435; Kranz v. White, 8 Bradwell, 583; C. & A. R. R. Co. v. Murphy, 53 Ill. 336; C., C. & I. C. R. R. Co. v. Troesch, 68 Ill. 545; C. & N. W. Ry. Co. v. Scheuring, 4 Bradwell, 533; Morgan v. Ry. Co., L. R. I. Q. B. 149; Wonder v. B. & O. R. R. Co., 32 Md. 411; Slater v. Jewett, 85 N. Y. 61; Farwell v. B. & W. R. R. Co. 4 Metc. 49; Priestly v. Fowler, 3 M. & W. 1; Coon v. S. & U. R. R. Co., 5 N. Y. 492; Boldt v. N. Y. C. R. R. Co, 18 N. Y. 432; Gilshannon v. S. B. R. R. Co., 10 Cush. 228; Wright v. N. Y. C. R. R. Co., 25 N. Y., 562; Hutchinson v. Railway Co., 5 Exch. 343; Wilson v. Merry, 1 L. R. H. L. Sc. App. Cas. 326; Lehigh Valley C. Co. v. Jones, 86 Pa. St. 432; Lovegrove v. L. B. & S. R. Ry. Co., 16 C. B. N. S. 669; Barton's Hill R. R. v. Reid, 3 Macq. H. L. Cas. 266; Sammon v. N. Y. & H. R. R. Co., 62 N. Y. 251; Whaalan v. M. R. & L. E. R. R. Co., 8 Ohio St. 249; Brown v. Maxwell, 6 Hill, 592; Foster v. M. R. R. R. Co., 14 Minn. 360; Slattery v. T. & W. Ry. Co., 23 Ind. 81; Walker v. B. & M. R. R. Co., 128 Mass. 8; Holden v. F. R. R. Co., 129 Mass. 268; Speed v. A. & P. R. R. Co., 71 Mo. 303; N. C. & St. L. Ry. Co. v. Goster (Sup. Ct. Tenn.), XI Am. & Eng. Cas. 180.

Mr. JOHN T. LILLARD and Messrs. FIFER & PHILLIPS, for appellee; that the question whether two employes in a given case are fellow servants, is one of fact for the jury, cited T., W. & W. Ry. Co. v. Moore, 77 Ill. 217; C., B. & Q. R. R. Co. v. Gregory, 58 Ill. 284; Ind. & St L. R. R. Co. v. Morgenstern, 106 Ill. 216; Mullen v. Steamship Co., 78 Pa. St. 25.

HIGBEE, P. J.

This was an action on the case brought by appellee to recover damages sustained by the next of kin of James O'Bryan, deceased, resulting from his death, charged to have been caused by the negligence of appellant's servants.

The construction and repair shops of the railroad company at the time of the accident causing his death, were located at Bloomington, and with the grounds used in connection with them, covered nearly fifty acres of land, and employed about nine hundred men, all of whom were under the general supervision and charge of William Wilson, divided into sub-departments, known as car shop, paint shop, blacksmith shop, machine shop, boiler shop, round house, foundry and lumber yard, each of which had one foreman and some of them two, all of whom were appointed by Wilson. There were three time keepers, one in the car shop, one in the blacksmith shop and one in the machine shop, all of whom reported to Wilson at the end of each month. The machine shop was near the south end of the yard, and the car shop toward the north end; between them was a common storeroom under a sub-superintendent, where all materials and supplies needed by any of the shops were kept under cover.

The different shops were connected by tracks. The car shops had a gang of sixteen or eighteen men to carry materials to and from the shops as required, under a foreman named Shields, and the machine shop had a like gang under White as foreman; both foremen were under the control of Wilson. Most of Shields' orders came from the superintendent of the car shop and those of White from the superintendent of the machine shop. The supplies used in these shops were kept in the storehouse, and those needed in the car shop were taken from the storehouse to it by Shields' men, and those needed at the machine shop by White's men. There were many tracks in the yard over which these gangs of men were in the constant habit of passing and re-passing, their most usual place of meeting being at or near the common storehouse, where the materials used by the shops were loaded and unloaded, as stored or removed therefrom. The track upon which the accident occurred led from the car shop past the storehouse to the machine shop; its general direction being southeast and northwest, with a grade of about fifty feet to the mile.

On the day in question, Wilson wanted a load of car wheels taken from immediately south of the storehouse to the foundry, which was almost directly west from the car house, and ordered Shields to have the car moved down to the place where it was to be unloaded and then unload it. Shields accordingly ordered seven of his men to go and do the work, among whom was O'Bryan. They approached the car from the west. The first man who came up was Cunningham, who took his place upon the east side of the car; then two others came and took their positions to the right of the bumper; then O'Bryan exactly in front of the bumper; then three others behind the car and to the left of the bumper.

Just before this, White had sent some of his men, under one of his workmen named Kinealy--who was a common laborer, receiving the same pay as the rest--to get some wheels, fastened together by their axles, upon this same track, farther south than the car where O'Bryan was. Three empty cars were in the way and had to be moved north before these wheels could be put upon the track. One car had been sent down and a brake slightly set on it by Ready, one of White's men, before O'Bryan and those with him had taken their positions. This car stopped but a few feet, perhaps from three to five feet, from the car O'Bryan's gang was to move. Those with Kinealy then pushed the second car down in like manner and had started for the third car. This second car going down, struck the first car with force sufficient to push it against the car O'Bryan was pushing, so that O'Bryan was caught between the bumpers and sustained injuries from which he died two days afterward. None of the other workmen with O'Bryan were hurt, and he would not have been hurt had he not been standing between the bumpers.

The trial of the cause resulted in a verdict and judgment against the railroad company from which it appeals to this court, and assigns numerous errors.

There was but little or no conflict in the evidence as to the principal facts of the case. Did they, in any reasonable view that can be taken of them, justify the verdict? Waiving all question as to the degree of negligence, if any, attributable to deceased in voluntarily placing himself directly between the bumpers of the cars where he received his injury, we are of opinion that the case made by the proofs discloses no such omission of duty or wrongful act on the part of appellant's servants as to render it liable for the death of deceased. When White's men went between the cars, where deceased received his injury, they neither saw nor heard Kinealy's men. The approaching car moved so slowly and noiselessly that the men did not hear it even when it struck the car just back of them, and within from three...