Chicago v. Dennis Geary.

• Citation: 1884 WL 9894,110 Ill. 383
• Parties: CHICAGO AND EASTERN ILLINOIS RAILROAD COMPANYv.DENNIS GEARY.
• Decision Date: 13 June 1884
• Court: Illinois Supreme Court

110 Ill. 383

1884 WL 9894 (Ill.)

CHICAGO AND EASTERN ILLINOIS RAILROAD COMPANY

v.DENNIS GEARY.

Supreme Court of Illinois.

Filed at Ottawa Jun. 13, 1884.

APPEAL from the Appellate Court for the First District;--heard in that court on appeal from the Superior Court of Cook county; the Hon. SIDNEY SMITH, Judge, presiding. Mr. WILLIAM ARMSTRONG, for the appellant:

The plaintiff in this case was a fellow-servant with those in charge of the switch crew, and can not recover of the master for an injury resulting to him through the negligence of a fellow-servant. C. and T. R. R. Co. v. Simmons, 11 Bradw. 147; Chicago and Northwestern Ry. Co. v. Moranda, 93 Ill. 302; Valtez v. Ohio and Mississippi R. R. Co. 85 Id. 500; Chicago and Alton R. R. Co. v. Murphy, 53 Id. 336.

The plaintiff and all the men in the yard at work with him were fellow-servants. Chicago and Northwestern Ry. Co. v. Moranda, 93 Ill. 302; Valtez v. Ohio and Mississippi R. R. Co. 85 Id. 500; Chicago and Alton R. R. Co. v. Murphy, 53 Id. 336; Chicago and Alton R. R. Co. v. May, Admx. 108 Id. 288; Chicago and Northwestern Ry. Co. v. Moranda, Id. 576.

A servant can not recover for an injury caused by the use of defective machinery in the business, after he has had knowledge of its defects. If he continues in the service after such knowledge, he will be deemed to have assumed the risk of such defects. Camp Point Manf. Co. v. Ballou, 71 Ill. 417; Chicago and Alton R. R. Co. v. Munroe, 85 Id. 25; Chicago and Northwestern Ry. Co. v. Donohue, 75 Id. 106; Moss v. Johnson, 22 Id. 633; Illinois Central R. R. Co. v. Cox, 21 Id. 20; Midland R. R. Co. v. Barber, 5 Ohio St. 541; Wright v. New York Central R. R. Co. 25 N. Y. 562; Shearman & Redfield on Negligence, sec. 94; Chicago and Northwestern Ry. Co. v. Taylor et al. 69 Ill. 461.

Messrs. MONROE & LEDDY, for the appellee:

Appellee assumed no peril incident to the service, which the appellant, by the exercise of reasonable care, could have avoided. Wood on Master and Servant, sec. 359.

Appellant was bound to exercise reasonable care in reference to all the instrumentalities of its business, and is liable to appellee for running this train on this particular occasion without a sufficient equipment of men, lights and signals. Flike v. Boston and Albany R. R. Co. 53 N. Y. 549; Chicago and Northwestern Ry. Co. v. Taylor et al. 69 Ill. 469.

The position of appellee not being necessarily hazardous, and the danger not patent, he had a right to presume appellant would discharge his duty. Michigan Central R. R. Co. v. Dolan, 32 Mich. 510; Buzzell v. Laconia Manf. Co. 48 Maine, 113.

The men employed on this switch train were the instrumentalities employed by appellant to operate it. If they were insufficient in numbers, for any reason, appellant is liable. Chicago and Northwestern Ry. Co. v. Taylor et al. 69 Ill. 461; Flike v. Boston and Albany R. R. Co. 53 N. Y. 549.

The evidence shows that, as matter of fact, appellee was not a fellow-servant with those operating the switch train. There was no such consociation as would make him a fellow with those operating the train. Chicago and Northwestern Ry. Co. v. Moranda, 93 Ill. 302; Chicago and Northwestern Ry. Co. v. Taylor et al. 69 Id. 461.

Appellee had no power or opportunity to exercise any influence over the persons operating the train. This is the distinctive test. Chicago and Northwestern Ry. Co. v. Moranda, 93 Ill. 302.

Mr. JUSTICE SCHOLFIELD delivered the opinion of the Court:

This was an action on the case, by Dennis Geary, against the Chicago and Eastern Illinois Railroad Company, for injuries alleged to have been sustained by the former in consequence of the negligence of the latter. Judgment was rendered in the circuit court in favor of Geary, and on appeal to the Appellate Court for the First District, it was affirmed. The railroad company is the appellant here, asking a reversal of the last named judgment because of certain errors claimed to have occurred in the rulings of the circuit court, and repeated by those of the Appellate Court, which we shall hereafter consider.

The following statement of facts, which we have taken, in a slightly abridged form, from the brief of the appellant, presents all that we deem material in the evidence to a full and accurate comprehension of the case: Appellee entered the employ of appellant in September, 1881, as night watcher of tracks used by it at their crossing of Thirty-fifth street, in the city of Chicago, and continued therein until after he received the injuries to recover for which he brings this suit. At that point, prior to and during this employment, appellant used tracks lying west of the tracks of the Western Indiana Railroad Company, numbering from one, which was next to the tracks of the Western Indiana, consecutively, westward, until No. 18, which was the last. There was, during that time, also a night crew, consisting of an engineer, fireman, foreman of the crew, (called conductor,) and a helper or assistant of the foreman or conductor. They had charge of an engine, and operated at and below Thirty-fifth street, commencing about six or seven o'clock in the evening, and working all night, and until six or seven o'clock next morning. Their duties were, in coöperation with another like crew working northwardly, to switch cars up and down these tracks in making up trains going south, and in taking apart trains coming from the south. There was likewise, during that time, a freight train running from appellant's yards, over these tracks, south, to Danville, known as “No. 25,” the departing time of which was 10:20 P. M. This train was made up by the night crew operating there, on track No. 1, commencing at six or seven o'clock P. M., and continuing until the train was made up, which was never much sooner than its departing time, and sometimes it was a little later. If, while this train was being made up, a train came in from the south, it crossed Thirty-fifth street on track No. 2. Appellee occupied a flag-house to the east of track No. 1. His duties were to watch these eighteen tracks from six o'clock in the evening until six o'clock in the morning, see that the street was not obstructed, and warn any one desiring to cross, of the approach of engines or trains of cars on these tracks. When the street would get blocked, he was required to report to the foreman or conductor of this night crew, and it was the duty of the foreman or conductor then to at once remove the cars from the street. If this was not done, it was the duty of appellee to report the fact to the yard-master, who was the immediate superior of this foreman or conductor. The engine of this night crew, with or without cars attached, was passing and repassing every few minutes throughout the night. On the evening of March 6, 1882, a freight train came from the south, and crossed Thirty-fifth street on track No. 2. When it was crossing the street, appellee came out of his flag-house with a lantern in his hand, walked over to track No. 1, where he stopped, and commenced conversing with a brakeman who had just got off the train coming from the south on...