Metro. West Side El. R. Co. v. Skola

• Decision Date: 18 December 1899
• Citation: 56 N.E. 171,183 Ill. 454
• Parties: METROPOLITAN WEST SIDE EL. R. CO. v. SKOLA.
• Court: Illinois Supreme Court

183 Ill. 454

56 N.E. 171

METROPOLITAN WEST SIDE EL. R. CO.

v.SKOLA.¹

Supreme Court of Illinois.

Dec. 18, 1899.

Error to appellate court, First district.

Action by Albert Skola, administrator of Joseph Triska, deceased, against the Metropolitan West Side Elevated Railroad Company. Judgment for plaintiff was affirmed by the appellate court (83 Ill. App. 659), and defendant brings error. Affirmed.

John A. Post and O. W. Dynes, for plaintiff in error.

B. F. Richolson and R. Frankenstein (C. Stuart Beattie, of counsel), for defendant in error.

BOGGS, J.

The defendant in error administrator, in an action on the case under the statute, recovered a judgment in the superior court of Cook county in the sum of $1,800 against the plaintiff in error for damages sustained by reason of the death of his intestate through alleged actionable negligence on the part of the servants of plaintiff in error. This is a writ of error to bring into review a judgment of the appellate court affirming that of the superior court.

The refusal of the superior court to direct a verdict for the plaintiff in error is the first assigned error. The plaintiff in error operated an elevated electric railway in the city of Chicago. It maintained a track on which cars which needed to be repaired, cleaned, or inspected were temporarily stored while such work was being performed. The work of cleaning, repairing, and inspecting the cars was performed by a force of workmen under the control of a foreman, one Fred McCrumb. Joseph Triska, the intestate of the defendant in error administrator, was employed as one of the force, and, together with one Frank Pitman, served as inspector of the brake rods, air pumps, and valves of the cars. Other members of the force were engaged in the work of repairing, and still others in cleaning, the cars, but all worked together, and sometimes interchanging in their duties. The cars were brought to this cleaning, repairing, and inspecting track from the main track by one George Barron, but it seems the foreman, McCrumb, would at times bring down the cars instead of Barron. On the occasion in question, McCrumb, the foreman, directed the deceased and another workman of the force to go underneath the cars, and wipe the motors. In obedience to such orders, the deceased went underneath car No. 704, and engaged in the work of cleaning the motor of that car. While so engaged, McCrumb, the foreman, went east to a point on the main track where there were cars that needed to be cleaned, repaired, and inspected, and proceeded to put them in motion to bring them down to the track on which stood the car under which the deceased was working. McCrumb acted as motorman, and his testimony is to the effect he exercised ordinary care in endeavoring to control them. The cars, however, moved at a high rate of speed in upon the cleaning, inspecting, and repairing track, and collided with great force and violence with car No. 704, under which the deceased was working, and drove the wheels of the car upon and over the body of the deceased, and fatally injured him. The right to recover was based upon two alleged grounds of negligence: First, that the cars were negligently and recklessly driven and propelled by McCrumb; and, second, that no warning or notice was given of the approach of the car. The theory upon which counsel for the plaintiff in error insists the court should have directed a verdict in its favor is that it appeared from undisputed facts that McCrumb, though when acting in his capacity as foreman was a vice principal of the common employer, was, when engaged in bringing cars in upon the cleaning, inspecting, and repairing track, but performing the duties of a common laborer, and was then directly co-operating with the deceased in the particular business of the...