The Chicago & North Western R.R. Co. v. Swett

• Decision Date: 30 September 1867
• Citation: 92 Am.Dec. 206,45 Ill. 197,1867 WL 5246
• Court: Illinois Supreme Court
• Parties: THE CHICAGO & NORTH WESTERN RAILROAD COMPANYv.LEONARD SWETT, Administrator, etc.

45 Ill. 197

1867 WL 5246 (Ill.)

92 Am.Dec. 206

THE CHICAGO & NORTH WESTERN RAILROAD COMPANY

v.LEONARD SWETT, Administrator, etc.

Supreme Court of Illinois.

September Term, 1867.

APPEAL from the Circuit Court of Whiteside county; the Hon. WILLIAM W. HEATON, Judge, presiding.

The facts in this case fully appear in the opinion.

Messrs. GLOVER, COOK & CAMPBELL, for the appellants.

Messrs. HIGGINS, SWETT & QUIGG, for the appellee. Mr. CHIEF JUSTICE BREESE delivered the opinion of the Court:

This was an action on the case brought in the Circuit Court of Whiteside county by Leonard Swett, administrator of John J. Fenlon, against the Chicago and North Western Railroad company.

There was a demurrer to the declaration which was overruled, and, the defendants abiding thereby, a jury was called to assess the damages, and they were assessed at $3,400.

To reverse this judgment, the defendants bring the case here by appeal, and make the points, first, that the declaration is defective, and the demurrer should have been sustained; and, second, that the court gave improper instructions to the jury of inquest.

First, as to the declaration, -- it contained two counts, the first alleging in substance, that on the 22d of August, 1865, the defendants were in control of a railroad passing through the county of Whiteside, with the locomotives, carriages, etc., running thereon; that Fenlon was employed by defendants as a fireman upon one of its locomotives running on the road; that it was their duty to keep the road and the culverts and bridges, which were part and parcel of the road, in proper repair, so as to prevent accidents to their servants engaged in running its engines and trains over the road, through any defects in the construction of the road, and its culverts and bridges, or want of properly repairing the same; that, not regarding their duty, they did not use proper care and skill in constructing their road, nor in keeping it in repair, but on the contrary, so carelessly, negligently and unskilfully constructed and managed their road, that, by and through their negligence, unskillfulness and improper conduct, their road became, and was left out of repair, the track and rails removed and out of place, etc. That the train of cars which deceased assisted in so operating, was, without any negligence on his part, or other servants of the defendants, precipitated into a gulf or opening across the track, and he, being then on the train in the discharge of his duties as fireman, was then and there immediately killed.

The second count alleges, as in the first, and that, as such fireman, he was under the direction and control of the defendants in performing his necessary part of the labor of running and operating the locomotive and train of cars thereto attached; that the locomotive was furnished by defendants to Fenlon and others, their servants, to be by them run upon their railway, and over the portion thereof running through Whiteside county, whereby it became the duty of the defendants to have and keep their railway and the culverts, bridges and embankments, part and portion of the same, in a skillful and proper manner, and to have repaired and reconstructed their road and the culverts, bridges and embankments, part and parcel thereof, as often as there was need, or as occasion required, so as to prevent accidents and loss of life happening to their servants through any defect in the construction or in the repairs of the road; that defendants, not regarding their duty in that behalf, did not use due and proper care and skill, either in constructing or in repairing their road and the culverts and bridges of the same, nor in keeping their road, its appurtenances and fixtures, in good order, but, on the contrary, they so carelessly and negligently constructed the culvert and embankment on the road at a certain brook called “Spring brook,” and so carelessly and negligently constructed the railway, its fixtures, appurtenances and property there, that, by and through the negligence, unskillfulness and improper conduct of the defendants in that behalf, the railway became out of repair, the track and rails removed and out of place, and the locomotive and train of cars, without any fault or negligence of the deceased, or of his fellow servants on the train, and while he was employed in operating, was violently precipitated into a gulf or opening across the track, and was suddenly and violently stopped, crushed and jammed together, and Fenlon was suddenly thrown from the train and instantly killed; that he had no knowledge of this defectiveness and insecurity of the road; averring that deceased left next of kin, and that they sustained damage, etc.

That the demurrer admits all the facts in the declaration which are well pleaded, is not controverted. What facts must be considered as well pleaded in these counts, or rather, what fact is not properly pleaded? We look in vain to see. The facts make out a case, not of the nature supposed by appellants, to which the doctrine recognized by this and other courts has been often applied. Those cases hold, that the principal is not liable to one servant for an injury sustained by him in consequence of the negligence of another servant of the same principal, while engaged in the same general business, provided due care was used by the principal in the selection of such servants. Honner v. Ill. Cent. R. R. Co., 15 Ill. 550; Ill. Cent. R. R. Co. v. Cox, 21 Id. 20, and cases there cited. In the case of The Illinois Central Railroad Company v. Jewell, 46 Ill. 99, it was held, a recovery by the administrator of the brakeman, who was killed by the carelessness and recklessness of the engine driver, might be had on proof that the company had not exercised proper care in employing the driver; and there is a class of cases holding, where by the neglect of the superior to repair or keep the machinery of the road in order, by means of which an employee was injured, there should be an averment that the superior had notice of such defects, or that by the exercise of reasonable care, he could have known them....