Chicago v. Moranda

• Decision Date: 23 January 1884
• Citation: 108 Ill. 576,1884 WL 9752
• Parties: CHICAGO AND NORTHWESTERN RAILWAY COMPANYv.FREDERICKE MORANDA, Admx.
• Court: Illinois Supreme Court

108 Ill. 576

1884 WL 9752 (Ill.)

CHICAGO AND NORTHWESTERN RAILWAY COMPANY

v.FREDERICKE MORANDA, Admx.

Supreme Court of Illinois.

Filed at Ottawa Jan. 23, 1884.

OPINION TEXT STARTS HERE

APPEAL from the Appellate Court for the First District;--heard in that court on appeal from the Circuit Court of Cook county; the Hon. JOSEPH M. BAILEY, Judge, presiding.

This is the second time this case has come before this court. It was first before it at its September term, 1879, and a judgment was then rendered reversing that of the circuit court, and remanding the cause for a new trial. The second trial in the circuit court resulted, as the first, in a judgment for the plaintiff. That judgment was affirmed by the Appellate Court for the Second District, and this record is brought here by appeal from that judgment. The action is case, under the statute, to recover damages because of the negligence of appellant, resulting in the death of appellee's intestate.

The material facts are: John Moranda, (appellee's intestate,) while standing by the side of the track of appellant, some five or six feet from the rail, was struck by a heavy piece of coal or slate thrown or falling from the engine or tender of a rapidly passing passenger train of appellant. He was, at the time, foreman of a section gang of track repairers in the employ of appellant, whose duties were to keep in repair a section of appellant's track. Appellee claims, and introduced evidence to sustain the claim, that the piece of coal or slate was thrown from the engine or tender by the fireman. The errors assigned question the rulings of the Appellate Court in affirming the judgment of the circuit court.

Mr. B. C. COOK, for the appellant, made the following, among various points, to which are annexed the authorities cited and commented on:

Whether a section foreman, having charge of repairs in the track, is, or is not, engaged in the same line of duty with an engineer and fireman, and hence fellow-servants, is a question of fact, and the court erred in instructing that they were not such. Illinois Central R. R. Co. v. Cox, 21 Ill. 20; Chicago and Alton R. R. Co. v. Keefe, 47 Id. 108; Murphy's case, 53 Id. 336; Railway Co. v. Britz, 72 Id. 256; Valtez's case, 85 Id. 500; Chicago and Alton R. R. Co. v. Shannon, 43 Id. 338; Chicago and Northwestern Ry. Co. v. Swett, 45 Id. 197; Honner v. Illinois Central R. R. Co. 15 Id. 550; Schooner“ Norway” v. Jensen, 52 Id. 373; Illinois Central R. R. Co. v. Welch, 52 Id. 183; Chicago and Northwestern Ry. Co. v. Jackson, 55 Id. 492; Illinois Central R. R. Co. v. Gregory, 58 Id. 272; Ryan v. Chicago and Northwestern Ry. Co. 60 Id. 171; Toledo, Peoria and Warsaw Ry. Co. v. Conroy, 61 Id. 162; Illinois Central R. R. Co. v. Patterson, 69 Id. 650; Toledo, Wabash and Western Ry. Co. v. Fredericks, 71 Id. 294; Toledo, Wabash and Western Ry. Co. v. Ingraham, 77 Id. 309; Pittsburg, Ft. Wayne and Chicago Ry. Co. v. Powers, 74 Id. 342; Toledo, Wabash and Western Ry. Co. v. O'Connor, 77 Id. 391; Indianapolis and St. Louis R. R. Co. v. Morgenstern, 106 Id. 216; Durkin's case, 76 Id. 395.

As to the liability of the master to a servant for the negligence of a fellow-servant: Gormly v. Ohio and Mississippi Ry. Co. 72 Ind. 32; Foster v. Railway Co. 14 Minn. 360; Howland v. Railway Co. 54 Wis. 226; Coon v. Railroad Co. 1 Seld. 492; Whalen v. Railway Co. 8 Ohio St. 249; Quincy Mining Co. v. Keltz, 42 Mich. 36; Holden v. Fitchburg R. R. Co. 129 Mass. 268.

The relation of master and servant imposes no obligation on the master to take more care of the servant than the servant is willing to observe for his own personal safety. Railroad Co. v. Flanagan, 71 Ill. 277; Pennsylvania Co. v. Lynch, 90 Id. 334; Railroad Co. v. Troesch, 68 Id. 545.

It is a rule of universal application that the care required should be proportionate to the danger and risk of the situation of the service. Railroad Co. v. Bell, 70 Ill. 102; Railroad Co. v. Sweeney, 52 Id. 325; Railroad Co. v. Donahue, 75 Id. 106; Pennsylvania Co. v. Lynch, 90 Id. 332.

The testimony given to contradict Kitel, the road master, was incompetent. Kitel did not testify that he gave the instructions to these witnesses, but only to Moranda, the section boss. This evidence did not contradict Kitel, and ought not to have been admitted. McCoy v. People, 71 Ill. 111; Richardson v. Kelly, 85 Id. 491; Robertson v. Bross, 83 Id. 116; 1 Greenleaf on Evidence, sec. 630, and note.

The court erred in allowing Cullis to give his opinion as to what is a safe distance to retire from the track when trains are passing. City of Chicago v. McGiven, 78 Ill. 347; Pennsylvania Co. v. Conlan, 101 Ill. 43. Mr. JOHN D. CRABTREE, and Mr. A. K. TRUSDELL, for the appellee:

The master will not be exempt from liability for injury to one servant by the neglect of another, where it does not appear that they were either strictly coöperating in the particular work they were about, or were usually consociated in their usual duties. Chicago and Northwestern Ry. Co. v. Moranda, 93 Ill. 302.

That an erroneous instruction will not be a ground for a reversal if the court can see that justice has been done, has been repeatedly decided by this court. Race v. Oldridge, 90 Ill. 25; New England Fire and Marine Ins. Co. v. Wetmore, 32 Id. 221; Sticker v. Otto, 86 Id. 161; Chicago and Western Indiana R. R. Co. v. Dooling, 95 Id. 202; Martin v. People, 13 Id. 341; Lawrence v. Hagerman, 56 Id. 68.

Mr. JUSTICE SCHOLFIELD delivered the opinion of the Court:

When this case was here before, we reversed the judgment for error of the circuit court in admitting evidence to the effect that the widow and children of the intestate had no other means of support than that of his daily earnings. ( Chicago and Northwestern Ry. Co. v. Moranda, 93 Ill. 302.) Although, as the law then was, we reviewed questions of fact as well as of law, this left no question of fact to be passed upon, and it was not intended to then express any opinion that might prejudice a future trial upon any question of fact involved in the case; but in answer to a point made by counsel for appellant, and to eliminate from previous decisions a rule of law for future guidance, we assumed, as a hypothesis sustained by the evidence in the record, that at the time of the alleged injury the intestate, as section foreman of a gang of track repairers, and the engineer and fireman on an engine drawing one of appellant's trains, were not directly coöperating with each other in their respective labors, and that their usual duties did not bring them into habitual consociation, so that they might exercise an influence upon each other promotive of proper caution. As a hypothesis presenting the question discussed, the particulars were as well assumed as if actually true,--for the governing rule, not the sufficiency of the proofs, was the thing to be determined. But it was not intended to be asserted, and obviously it could not be asserted, as a universal truth, for numerous cases may be readily conceived in which there would be either direct coöperation or habitual consociation between and with such servants in a single, continuous work or enterprise, and, as a particular truth, it would be a subject of inquiry upon each trial. The circuit court, upon the second trial, however, gave this instruction to the jury:

“The jury are instructed that a man employed by a railroad company in the capacity of a section foreman, having charge and oversight of repairs upon a certain portion of its track, is not engaged in the same line of duty with an engineer and fireman running such company's locomotive engines, and is therefore not within the rule which exempts the common employer from liability to one of its employees for damages resulting from the fault, carelessness or negligence of a fellow-servant or co-employee.”

Even if, when the case was here before, we had found, on the facts then before us, that the intestate and fireman and engineer were not...