North Chicago St. R. Co. v. Dudgeon

• Decision Date: 19 February 1900
• Citation: 184 Ill. 477,56 N.E. 796
• Parties: NORTH CHICAGO ST. R. CO. v. DUDGEON.
• Court: Illinois Supreme Court

184 Ill. 477

56 N.E. 796

NORTH CHICAGO ST. R. CO.

v.DUDGEON.¹

Supreme Court of Illinois.

Feb. 19, 1900.

Appeal from appellate court, First district.

Action by Frank C. Dudgeon against the North Chicago Street-Railroad Company. From a judgment of the appellate court affirming a judgment for plaintiff (83 Ill. App. 528), defendant appeals. Affirmed.John A. Rose and Louis Boisot, Jr. (Henry Crawford, of counsel), for appellant.

E. S. Cummings, for appellee.

PHILLIPS, J.

We take the following statement of facts from the opinion of the appellate court: ‘This cause was begun by appellee to recover damages for personal injuries alleged to have resulted from negligence of appellant. The fourth count of the declaration sets up the following facts: That the defendant at the time of the accident was engeged in the repairing and relaying of certain rails, tracks, and roadbed by it used, and was using, in such repairing and relaying, large quantities of stones, granite blocks, etc., and had placed the same along the streets, near the tracks upon which it operated its cars; that the plaintiff was in the employ of the defendant as a conductor upon its cars, and that the defendant, at the time of the accident, carelessly and negligently placed large piles of stones, granite blocks, etc., in the street, at, near, and alongside the west railroad track of the defendant, and failed to guard and protect the same, and failed to place any light or warning signal near it; and that the plaintiff, after sunset on the day of the accident, while acting as conductor, and while, with due care, attempting to board a certain car of the defendant standing at the place where the accident occurred, was thrown by a sudden jerking or starting of the car against the pile of stones and other material, and was thereby forced against and underneath the car, whereby, etc. The third count is, in substance, the same. The evidence shows that appellee, who was then a conductor of one of the cars of appellant, together with another conductor and a gripman, was going north on North Clark street, in the city of Chicago, on the east track of defendant, was met at Ogden front by a crew of appellant's employés in charge of a train which they had brought out for the crew on the north-bound train to take charge of and run down town. This was done because the train of which plaintiff was one of the conductors was behind time, and, to regain the time lost, they were transferred to the other train without completing their trip. At the point when the transfer was made, O'Day & Farwell, contractors, were repairing the tracks of the defendant, and in the conduct of their work had piled stones west of and near the tracks in the street. While the transfer was being made, and before appellee had succeeded in getting aboard of his car, the train started up. By reason of the starting of the train, and by reason of the pile of stones adjacent to the track, the appellee was thrown upon the pile of stones, and from them rolled under the train, and was very seriously injured. The work of repairing the tracks was done by O'Day & Farwell under some kind of oral contract with appellant.’ The case has been twice tried. A judgment in favor of the plaintiff was reversed by the appellate court. Railroad Co. v. Dudgeon, 69 Ill. App. 57. Upon the second trial a verdict for the plaintiff was again returned, and his damages assessed at $12,000. Judgment was entered on the verdict, and, being affirmed by the appellate court, this appeal is prosecuted.

The errors relied on for reversal are: First, refusing to instruct the jury to find for the defendant; and, second, refusing defendant's twenty-seventh instruction.

The gist of the third and fourth counts of the declaration, on which a recovery can be sustained, if at all, is negligence in placing piles of stones along the sides of the track upon which appellee was required, by his service, to change from one train of appellant to another. Appellant insists that as to these two counts there can be no recovery, because the work of repairing its roadbed and track was being done by O'Day & Farwell as independent contractors, free from all control and supervision on the part of the defendant company; that the workmen who were in their employ were in no way subject to the control of the defendant; that the doing of the work was not a nuisance per se, but the repair of a lawful public improvement; and that, in the doing of this work, O'Day & Farwell were not the servants of the defendant, but independent contractors.

The appellant company was chartered by the state of Illinois to operate a street railroad along the street in question. The work was being done upon written authority of the commissioner of public works of the city of Chicago, given to the appellant railroad, which authorized it to ‘relay the girder rails of their street railroad, upon the condition that said work shall be done as required by the commissioner of public works, and subject to his orders. * * * The manner and time of doing said work, the pattern and design of said rails, shall conform to the ordinances of the city of Chicago.’ There is an exception to the general rule that the doctrine of respondeat superior does not apply to cases of independent contractors, viz. where the defendant company is exercising some chartered privilege or power which could not be exercised independently of its charter. In Gas Co. v. Myers, 168 Ill. 139, 48 N. E. 66, it was said (page 146, 139 Ill., and page 69, 48 N. E.): ‘The appellant was a corporation authorized by its charter to deal in gas. The proof shows that the permit to do all the work connected with the laying of the gas pipes was issued by the department of public works of Chicago to the appellant company, and not to the construction company. The appellant was thus engaged in the work of laying pipes to transmit gas through the public streets of the city under a charter of the state of Illinois, and under a permit from the city of Chicago. It cannot, therefore, avoid liability for acts under its corporate franchises by simply letting a contract to a construction company. Even though the person who causes the injury is a contractor, he will be regarded as the servant or agent of the corporation for whom he is doing the work, if he is exercising some chartered privilege or power of such corporation, with its assent, which he could not have exercised independently of the charter of such corporation. ‘In other words, a company seeking and accepting a special charter must take the responsibility of seeing that no wrong is done through its chartered powers by persons to whom it has permitted their exercise.’ West v. Railroad Co., 63 Ill. 545; Railroad Co. v. Conroy, 39 Ill. App. 351;Balsley v. Railroad Co., 119 Ill. 68,8 N. E. 589.' In West v. Railroad Co., 63 Ill. 545, this court said (page 549): ‘The principle we consider to be substantially this: The company may be held liable when the person doing the wrongful act is the servant of the company, and acting under its direction; and though such person is not a servant, as between himself and the company, but merely a contractor or lessee, still he must be regarded as a servant or agent when he is exercising some chartered privilege or power of the company, with its assent, which he could not have exercised independently of such charter. In other words, a company seeking and accepting a special charter must take the responsibility of seeing that no wrong is done through its chartered powers by persons to whom it has permitted their exercise.’ In Railroad Co. v. McCarthy, 20 Ill. 385, it was held that ‘contractors are the servants of the railroad company, and their tortious acts are properly chargeable to the company.’ In Darmstaetter v. Moynahan, 27 Mich. 187, it was held that one who employs another to fill his ice house by the cord, and obtains license from the municipal authorities to incumber the streets for that purpose, cannot shield himself from liability for injuries caused by unlawfully obstructing the streets with blocks and fragments of the ice, under an objection that his employé was a contractor,and alone liable. The court said: ‘The work was to be done for plaintiff in error, and under the protection of a license given by the city to him as a personal to have been understood that this license should be used as Kehl might choose, though contrary to its spirit or beyond its import. The license was obtained by the plaintiff in error as his own shield in carrying on a piece of work by and for himself, and the work was done under it by himself, by means of Kehl, who was his instrument. If Kehl had been prosecuted for creating a public nuisance, he could not have ‘justified his own right,’ but would have been compelled ‘to justify as agent’ of the plaintiff in error under his contract. I am therefore of the opinion that the relations between Kehl and the plaintiff in error were such, in respect to the creation of the mischievous obstruction, as to implicate the latter in responsibility for injuries to third parties not in fault. See Sadler v. Henlock, 4 El. & Bl. 570.' In Woodman v. Railroad Co., 149 Mass. 335, 21 N .E. 482,4 L. R. A. 213, it was held that a railroad company was liable for injuries caused by reason of an obstruction in the street; that the fact that the work was being done under an independent contract would not exonerate it from liability. The court said: ‘But, further, apart from the statute, if the performance of a lawful contract necessarily will bring wrongful consequences to pass unless guarded against, and if, as in the present case, the contract cannot be performed except under the right of the employer, who retained the right of access to the premises, the law may require the employer, at his peril, to see that due care is used to prevent harm, whatever the nature of his contract with those whom he employs. Sturges v. Society, 130...