Joliet Steel Co. v. Shields

• Court: Illinois Supreme Court
• Writing for the Court: SCHOLFIELD
• Citation: Joliet Steel Co. v. Shields, 134 Ill. 209, 25 N. E. 569 (Ill. 1890)
• Decision Date: 31 October 1890
• Parties: JOLIET STEEL CO. v. SHIELDS.

134 Ill. 209

25 N.E. 569

JOLIET STEEL CO.

v.SHIELDS.¹

Supreme Court of Illinois.

Oct. 31, 1890.

Appeal from appellate court, second district.

Action by Benjamin Shields against the Joliet Steel Company for personal injuries received by him while in defendant's service. Plaintiff obtained judgment which was affirmed by the appellate court. Defendant appeals. The plaintiff alleged in his declaration that he was foreman of a gang of track repairers, and that he was injured by the negligence of servants of the defendant who were employed in and about its converting mill.

Garnsey & Knox, for appellant.

J. W. Downey and Haley & O'Donnell, for appellee.

SCHOLFIELD, J.

The rule in this state is, where one servant is injured by the negligence of his fellow-servant, their duties being such as to bring them into habitual association, so that they may exercise a mutual influence upon each other promotive of proper caution, and the master is guilty of no negligence in employing the servant causing the injury, the master is not liable. Stafford v. Railroad Co., 114 Ill. 244, 2 N. E. Rep. 185; Railway Co. v. Moranda, 93 Ill. 302; Railroad Co. v. Geary, 110 Ill. 383;Railway Co. v. Snyder, 128 Ill. 655, 21 N. E. Rep. 520; Rolling Mill Co. v. Johnson, 114 Ill. 57; Railroad Co. v. Hoyt, 122 Ill. 369, 12 N. E. Rep. 225. It follows, and is recognized by these cases, that where one servant is injured by the negligence of another servant of the common master, but not within this description of fellow-servant, the master is liable. See, also, Railroad Co. v. May, 108 Ill. 288;Railway Co. v. Snyder, 117 Ill. 376, 7 N. E. Rep. 604; Railroad Co. v. Kelly, 127 Ill. 638, 21 N. E. Rep. 203. In all actions for negligence, the burden is upon the plaintiff to allege and prove such negligent acts of the defendant as will entitle the plaintiff to recover. Railroad Co. v. Harwood, 90 Ill. 425; Railroad Co. v. Gregory, 58 Ill. 272;Blanchard v. Railway Co., 126 Ill. 416, 18 N. E. Rep. 799; Patt. Ry. Acc. Law, § 373, and cases cited in note. The words ‘defendant's servants' clearly include any and all of defendant's servants, and so, necessarily, it is not sufficient here merely to allege and prove an injury to the plaintiff from the negligence of the defendant's servants generally, for it is just as consistent with that allegation and proof that the defendant is free of liability as that it is liable. The omission to allege that the defendant's servants causing the plaintiff's injury were not the fellow-servants of the plaintiff, within the description of such servants, supra, was not cured by verdict, because the denial of the allegations of the declaration imposed no duty upon the plaintiff in that respect. When he had proved that he was injured by the negligence of the defendant's servants, he had proved all that he had alleged. But, since the defendant was not liable merely because the plaintiff was injured by the negligence of the defendant's servants, he was entitled to contest and disprove that its servants, by whose negligence the plaintiff was injured, were such servants as rendered it liable to the plaintiff for their negligence. The rule being that nothing will be presumed after verdict, but what must have been...