Chicago & Alton R.R. Co. v. Murphy

• Decision Date: 31 January 1870
• Citation: 1870 WL 6203,5 Am.Rep. 48,53 Ill. 336
• Court: Illinois Supreme Court
• Parties: CHICAGO & ALTON RAILROAD COMPANYv.KATE MURPHY, Administratrix, etc.

53 Ill. 336

1870 WL 6203 (Ill.)

5 Am.Rep. 48

CHICAGO & ALTON RAILROAD COMPANY

v.KATE MURPHY, Administratrix, etc.

Supreme Court of Illinois.

January Term, 1870.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of McLean county; the Hon. JOHN M. SCOTT, Judge, presiding.

The opinion states the case.

Messrs. WILLIAMS & BURR, for the appellants.

Messrs. WELDON, TIPTON & BENJAMIN, and Mr. JOHN H. MCNULTA, for the appellee.

Mr. JUSTICE LAWRENCE delivered the opinion of the Court:

This is an action brought by the appellee, as administratrix of James Murphy, deceased, against the appellants, for wrongfully causing the death of said Murphy, who was at the time in appellants' service. There is no dispute in regard to the facts. The deceased was one of several workmen, under the immediate charge of one Hill, as foreman, whose duty consisted in examining all trains on their arrival at the railway station in Bloomington, and making all needed repairs. He and a fellow laborer had been engaged in “jacking up” and repairing a car in a freight train, and having finished his work had started for the shop where they kept their tools, when, in passing down between the rails of the main track, he was overtaken and struck by a switch engine, and so injured that he soon after died. The switch engine was constantly engaged on the station grounds, and although under the immediate control of the yard master, it was used for whatever purpose it might be required, and among others, for switching such car or cars as were to undergo repairs by Hill's men. In that way, it was more or less connected with the work in which deceased was engaged, and the engineer managing this engine, and the men of Hill's ““repair gang,” as it was called, were strictly fellow servants of a common master, having different functions, it is true, but engaged in the same general department, to-wit: the doing of the needed work upon the depot grounds for the purpose of dispatching the various trains. If a car in a train which had just arrived, was found to need repairs, Hill would advise the yard master, and the latter would have the switch engine place the car in such position in the yard as he might think proper, when Hill's men would make the necessary repairs.

Under these circumstances, we are wholly unable to hold, as insisted by counsel for appellee, that the deceased and the engineer were not fellow servants in such a sense as to subject them to the well established rule exempting the common master from liability in cases of this character. Admitting, as we do, the carelessness of the engineer upon the switch engine, in neglecting either to ring the bell or blow the whistle, and waiving the question as to whether the deceased was not chargeable with equal negligence, we are clearly of opinion that this case can not, in principle, be distinguished from the former cases decided by this court, in which we held, under an analogous state of facts, that no recovery could be had. It is true, we said in Chicago & Alton R. R. Co. v. Keefe, 47 Ill. 108, that the duties of an employee of a railway company might be so entirely distinct from all occupation upon its...