Chicago v. Sykes

• Decision Date: 25 September 1880
• Citation: 1880 WL 10089,96 Ill. 162
• Parties: CHICAGO, BURLINGTON AND QUINCY RAILROAD CO.v.CHLOE M. SYKES, Admx.
• Court: Illinois Supreme Court

96 Ill. 162

1880 WL 10089 (Ill.)

CHICAGO, BURLINGTON AND QUINCY RAILROAD CO.

v.CHLOE M. SYKES, Admx.

Supreme Court of Illinois.

Filed at Ottawa Sept. 25, 1880.

OPINION TEXT STARTS HERE

APPEAL from the Appellate Court for the Second District;--heard in that court on appeal from the Circuit Court of Warren county, the Hon. ARTHUR A. SMITH, Judge, presiding.

Mr. WILLIAM C. NORCROSS, for the appellant:

The court erred in overruling the defendant's motion for a new trial, because the verdict is contrary to the law and the evidence. The deceased was guilty of such negligence contributing to the injury as to bar the plaintiff's right of recovery in any view of the case. Chicago and Alton Railroad Co. v. Meiche, Administratrix, 83 Ill. 427; Illinois Central Railroad Co. v. Hall, 72 Ill. 222; Toledo, Wabash and Western Railroad Co. v. Brooks, 81 Ill. 250.

It makes no difference whether Anderson invited Sykes to come under the car or not, because it is proved, that even if he had invited him, the deceased knew that Anderson could not extend such an invitation within the scope of his agency, and the invitation not being within the scope of the agency, would not bind the defendant. 1 Greenlf. Ev. sec. 114; Davidson v. Porter et al. 57 Ill. 300; Snyder v. Hannibal and St. Jo. Railroad Co. 60 Mo. 413.

The facts being conceded, whether a given act is within the scope of a servant's employment is a question of law for the court. Story on Agency (4th ed.) sec. 456; Wharton on Agency, sec 136.

A third party dealing with an agent is bound to exercise the caution of a good business man, to know whether or not the agent has authority; and if he acts without exercising such care, he does so at his own peril. Wharton on Agency, p. 91, sec. 137.

When there are any just grounds to suspect that an agent had not authority, or where there is any good reason to put the third party on inquiry as to whether or not an agent has authority to do the particular act, the third party is bound to go to the principal to ascertain whether or not the agent has authority, or else he deals with the agent at his own peril. Wharton on agency, p. 94, sec. 139.

Where an agent acts beyond the scope of his employment, or contrary to his principal's wishes, and the party dealing with him knows the fact, he deals at his own peril, and can not hold the principal responsible for the acts of the agent. Wharton on Agency, pp. 87-88, sec. 131 and sec. 132. Illinois Central Railroad Co. v. Green, 81 Ill. 19.

If the deceased were guilty of any negligence, no matter how slight, that contributed to the injury, then the plaintiff can not recover in his action unless the plaintiff proves by a preponderance of evidence on her part two things, namely: 1. That the defendant was guilty not of negligence that contributed to the injury, but of gross negligence that contributed to the injury. And, 2d. That the negligence of the deceased was but slight compared to the negligence of the defendant. Illinois Central Railroad Co. v. Hammer, 85 Ill. 526; Chicago and Alton Railroad Co. v. Langley, 2 Bradwell's Rep. 505; Illinois Central Railroad Co. v. Hall, 72 Ill. 222; Village of Kewanee v. Depew, 80 Ill. 119; City of El Paso et al. v. Causey, 1 Bradwell's Rep. 531.

The deceased also violated sec. 54 of the statute relating to railroads and warehouses, R. S. 1874, p. 810.

A higher degree of care is required of an adult than of a child. Chicago and Alton Railroad Co. v. Murry, 71 Ill. 601; Chicago, Burlington and Quincy Railroad Co. v. Dewey, 26 Id. 258; Railroad Co. v. Gladman, 15 Wall. 408.

That in law the negligence of the deceased contributed to the injury complained of to such an extent as to bar plaintiff's right of recovery, admits of no doubt, as the following cases abundantly show, in each and all of which the verdict and judgment of the lower court have been set aside, and the appellate court decide the same as a matter of law. Chicago, Rock Island and Pacific Railroad Co. v. Bell, Admx. 70 Ill. 102; Lake Shore and Michigan Southern Railroad Co. v. Hart, 87 Id. 529; Chicago and Alton Railroad Co. v. Mitchie, Admx. 83 Id. 428; Village of Kewanee v. Depew, 80 Id. 119; Illinois Central Railroad Co. v. Hall, 72 Id. 222; Illinois Central Railroad Co. v. Chambers, 71 Id. 519; Bevier v. Galloway, 71 Id. 517; Toledo, Wabash and Western Railroad Co. v. Barlow, 71 Id. 640; Illinois Central Railroad Co. v. Greene, 81 Id. 19; Toledo, Wabash and Western Railroad Co. v. Jones, 76 Id. 311; Keokuk Packet Co. v. Henry, 50 Id. 264; Ohio and Mississippi Railroad Co. v. Stratton, 78 Id. 88; Adams Express Co. v. Jones, 53 Id. 463; Chicago and Alton Railroad Co. v. McLaughlin, 47 Id. 265; Chicago and Alton Railroad Co. v. Langley 2 Bradwell's Rep. 505; Toledo, Wabash and Western Railroad Co. v. Miller, 76 Ill. 279; Central Railroad and B. Co. v. Dixon, 42 Ga. 327; C., C., C. and I. Railroad Co. v. Elliott, 28 Ohio St. 340; Allyn v. B. and A. Railroad Co. 105 Mass. 77.

When the question is, whether the defendant was guilty of gross negligence that contributed to the injury, and all the evidence is before the court, that question becomes a question of law, to be determined by the court on appeal as a matter of law, no matter what the verdict of the jury and judgment of the lower court may have been. The Adams Express Co. v. Jones, 53 Ill. 463; Kelly, Admx. v. Hardie, 26 Mich. 245; Lake Shore and Michigan Central Railroad Co. v. Miller, 25 Mich. 274; Allyn v. B. and A. R. R. Co. 105 Mass. 77; Kansas Pacific Railroad Co. v. Butts, 7 Kan. 308; Chicago and Alton Railroad Co. v. Langley, 2 Bradwell, 505.

And the question as to whether the deceased was guilty of any want of ordinary care and prudence which directly contributed to the injury, and whether or not the defendant was guilty of gross negligence that contributed directly to the injury, and whether, by comparison, the negligence of the deceased was slight and the defendant's gross, are each and all questions of law for the determination of the court, on appeal. Illinois Central Railway Co. v. Green, 81 Ill. 19; Chicago and Alton Railway Co. v. Michie, Admx. 83 Id. 427; Village of Kewanee v. Depew, 80 Id. 119; Toledo, Wabash and Western Railway Co. v. Jones, 76 Id. 311; Keokuk Packet Co. v. Henry, 40 Id. 264; The City of Joliet v. Seward, 86 Id. 402; Lake Shore and Michigan Southern Railroad Co. v. Hart, 87 Id. 529; Chicago and Alton Railroad Co. v. Michie, 83 Id. 427; Illinois Central Railroad Co. v. Hall, 72 Id. 222; Illinois Central Railroad Co. v. Chambers, 71 Id. 519; Illinois Central Railroad Co. v. Green, 81 Id. 19; Ohio and Mississippi Railroad Co. v. Stratton, 78 Id. 88; Lake Shore and Michigan Southern Railroad Co. v. Miller, 25 Mich. 274; Kelly, Admx. v. Hendrie, 26 Id. 225; Allyn v. The B. and A. Railway Co. 105 Mass. 77; Gerety v. Ph., Wil. and Balto. Railway Co. 81 Pa. St. 274; Central Railway Co. v. Dixon, 42 Ga. 327; Chicago and Alton Railway Co. v. Langley, 2 Bradwell, 505; Lewis v. Baltimore and Ohio Railway Co. 38 Md. 597; The City of El Paso et al. v. Causey, 1 Bradwell, 531; Phillips v. R. and S. Railway Co. 49 N. Y. 137.

The entire blockading of that side walk did not justify deceased putting his life in jeopardy, nor did it pull him under the train, nor did it contribute to pull him under the train. Chicago and Alton Railway Co. v. Langley, 2 Bradwell, 505; Central Railway Co. v. Dixon, 42 Ga. 327; Lewis v. Baltimore and Ohio Railway Co. 38 Md. 597; Chicago, Burlington and Quincy Railway Co. v. Dewey, Admx. 26 Ill. 255; Keokuk Packet Co. v. Henry, 50 Id. 264.

As a matter of law, it is the duty of the court on appeal to absolutely reverse a case where the verdict is not supported by a preponderance of evidence. The Adams Express Co. v. Jones, 53 Ill. 463.

The fifth instruction given for the plaintiff was erroneous. Keokuk Packet Co. v. Henry, 50 Ill. 269; Chicago, Burlington and Quincy Railroad Co. v. Dewey, 26 Ill. 255.

Messrs. STEWART, PHELPS & GRIER, for the appellee:

As to the liability of a master for the acts of his servant while acting in the general scope of his employment, see Milton v. Middlesex Railroad Co. 107 Mass. 169; Bagley v. Manchester, S. and L. Railway Co. 8 C. P. 153; Cosgrove v. Ogden, 49 N. Y. 255; Anderson v. Rome, W. and O. Railroad Co. 54 N. Y. 340; Luby v. H. R. R. R. Co. 17 N. Y. 133.

As to the question of negligence, see Illinois Central Railroad Co. v. Able, 59 Ill. 132; Chicago, Burlington and Quincy Railroad Co. v. Dewey, 26 Id. 259; Illinois and St. Louis Railroad Co. v. Stables, 62 Id. 316; Rockford, Rock Island and St. Louis Railroad Co. v. Coultas, 67 Id. 401; Illinois Central Railroad Co. v. Slatton, 64 Id. 139; Ohio and Mississippi Railway Co. v. Stratton, 78 Id. 88; Illinois Central Railroad Co. v Hoffman, 67 Id. 287; Illinois and St. Louis Railroad Co. v. Herndon, 81 Id. 149; Chicago and Alton Railroad Co. v. Mitchie, 83 Id. 430; Rockford, Rock Island and St. Louis Railroad Co. v. Linn, 67 Id. 110; Illinois Central Railroad Co. v. Modglin, 85 Id. 483.

It was particularly gross negligence to start said freight train in the manner it was, and without signal, when the engineer knew it had not been uncoupled and separated; that it stood over the only approach to the depot, and that they were within the limits of a city, for there the law demands a far higher degree of care in the management of railroad trains. Illinois Central Railroad Co. v. Hammer, 72 Ill. 350; Toledo, Wabash and Western Railroad Co. v. Miller, 76 Id. 578; Chicago, Burlington and Quincy Railroad Co. v. Stumps, 69 Id. 409; Chicago, Burlington and Quincy Railroad Co. v. Van Patten, 64 Id. 516; Chicago and Northwestern Railroad Co. v. Sweeney, 52 Id. 330.

As to the rule in case of comparative negligence when there is fault on both sides, counsel cited and elaborated the following, among other authorities: Chicago and Alton Railroad Co. v. Gretzner, 46 Ill. 81; Chicago and Alton Railroad Co. v. Murray, 62 Id. 330; Illinois...