The Chicago v. Etc

• Decision Date: 30 September 1873
• Citation: The Chicago v. Etc, 69 Ill. 461, 1873 WL 8492, 18 Am.Rep. 626 (Ill. 1873)
• Parties: THE CHICAGO AND NORTHWESTERN RAILWAY CO.v.LYMAN TAYLOR et al. Admrs. etc.
• Court: Illinois Supreme Court

69 Ill. 461

1873 WL 8492 (Ill.)

18 Am.Rep. 626

THE CHICAGO AND NORTHWESTERN RAILWAY CO.

v.LYMAN TAYLOR et al. Admrs. etc.

Supreme Court of Illinois.

September Term, 1873.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Winnebago county; the Hon. WILLIAM BROWN, Judge, presiding.

Mr. B. C. COOK, for the appellants.

Messrs. CRAWFORD & MARSHALL, and Messrs. LATHROP & BAILEY, for the appellees.

Mr. CHIEF JUSTICE BREESE delivered the opinion of the Court:

This was an action on the case, brought to the Winnebago circuit court, by the administrators of Henry P. Taylor, deceased, against the Chicago and North Western Railway Company, to recover damages for the death of their intestate, alleged to have been caused by the negligence of defendants.

Under the plea of not guilty, and a special plea, the company set up as a defense the negligence of the deceased as the cause of his death; that the death was caused by the negligence of the fellow-servants of the deceased engaged in the same line of employment, and therefore the company were not responsible.

The jury, under instructions of the court, found for the plaintiffs, and assessed the damages at five thousand dollars, on which the court, overruling a motion for a new trial, rendered a judgment.

To reverse this judgment the defendants appeal.

It appears the deceased was employed by the company as station agent and switchman at Harlem, a small station on the line of appellants' road, on the night of October 18, 1870, and had been so employed for five years or more. The switch at that station is connected with the main track at one end only, so that only what is called a “flying-switch” could be made by a train coming from the north. It was about ten o'clock at night, of a dark night in October, when the signal was given for the switch. It was so dark that platform cars could not be seen without a light. At this hour four flat cars, each about four feet high, making a string nearly eight rods in length, were about to be run into Harlem station by means of a “flying-switch.” The deceased was in the office in the station-house listening for signals, when the signal for the flying-switch was made. He seized his lantern and mail-bags, and with alacrity started to his post, on the run, as straight as he could go for the switch. One Tuthill, a friend of deceased, who was in the office with him when the signal was given, followed him half way from the office to the railroad track, by which time the engine had passed, and the brakeman came along with four flat-cars, and inquired where the agent was. Tuthill replied he had gone out, or as Easton, another witness, says, he had gone up to turn the switch, and asked the brakeman if he had not seen him. The brakeman said he had not. Tuthill then told him he had either run over him or knocked him off the track. Tuthill got the brakeman's lantern to look for the deceased, when he, and Easton, another friend, got on the flat cars and rode back to the switch. There they got off, and went down five or six rods from where the cars were, and found deceased lying along the side of the track, among the wood, with his face to the north.

We understand the manner of making a flying-switch to be this: The cars intended to be switched are uncoupled from the train at the proper point by the brakeman, then the locomotive and cars attached are started up, and pass the switch so far in advance of the cars to be switched that, after the engine and cars attached have passed the switch, the switch can be turned in time to receive the remaining cars, which must have momentum sufficient to pass them into the switch.

There was wood loosely piled around the switch, five or six feet high, and had been there for two or three days, which, to get from the station-house to the switch, it was necessary to pass over, or go along the track. This accounts for deceased being on the track when he was struck, as testified by Tuthill. He died in about one hour after he was struck.

It is in proof there was but one brakeman and one lantern on these four flat-cars, and it is further proved that but one of the cars had on a sufficient brake, and that was the car farthest off from the switch, and at the rear end of this car, still farther off, was the lantern and brakeman. It was a kind of night, as one of the witnesses, Disbrow, route agent of the Kenosha and Rockford Railroad, describes it, when smoke and steam settled down about the train, so that a person could not see where the train was; especially it settled down on the north and west sides of the train.

Appellants make the point, that they are not liable to their servants for injuries sustained by the negligence of fellow-servants engaged in the same line of employment.

This principle has been repeatedly recognized by this court, first in Honner v. Ill. Cent. R. R. Co. 15 Ill. 550, the doctrine of respondeat superior not being applicable to cases of injuries sustained by one servant through the carelessness of another. In Ill. Cent. R. R. Co. v. Cox, 21 ib. 20, the same ruling was made; and also in Moss v. Johnson, 22 ib. 633; Ch. and Alton R. R. Co. v. Murphy, 53 ib. 336, and Ch. and Alton R. R. Co. v. Keefe, 47 ib. 108. Appellants insist the deceased was within the rule stated in these cases. It was his duty to turn the switch whenever cars were to be set from the main-track to the side-track, and had known for many years precisely the manner in which it was done; that he knew he would be obliged to pass from the station-house to the switch, and if he went upon the track he might be injured by the carelessness of other servants of the company; that he knew perfectly well the manner in which the wood was piled along the side of the track, and having entire control of the station, could have changed the manner of throwing off the wood, and he must be presumed to have contracted with reference to the danger to which he would be exposed by the carelessness or negligence of those engaged with him in causing the trains to be switched from one track to another at that point.

We concur in much that is said by counsel on this point, but we do not think the case turns upon the principle of the cases cited, or is dependent upon it, but rather upon the doctrine affirmed in Ill. Cent. R. R. Co. v. Jewell,...