The Chicago v. Moranda
| Decision Date | 30 September 1879 |
| Citation | 93 Ill. 302,1879 WL 8619,34 Am.Rep. 168 |
| Parties | THE CHICAGO AND NORTHWESTERN RAILROAD COMPANYv.FREDERICKE MORANDA, Admx. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of Lee county.
Mr. B. C. COOK, for the appellant.
Mr. A. K. TRUSDELL, and Mr. J. D. CRABTREE, for the appellee.
John Moranda was the foreman of a party of track repairers, whose duty it was to repair and keep in order a section of the railroad track of appellant, and to be upon the track and see that it was kept in order for the running of trains. The hypothesis on which it is sought to sustain the recovery in the circuit court in this case is, that while Moranda was so engaged in this duty an express train passed by at the rate of some thirty to thirty-five miles an hour; that on the approach of the train to the place where Moranda and his party were at work on the track they stepped aside to avoid the passing train, he standing some five or six feet from the nearest rail of the track; and that as the train passed, a large lump of coal was carelessly cast by the fireman from the tender attached to the locomotive, which struck Moranda and caused his death.
This is an action, under the statute, by the administratrix of the estate of deceased. Appellant pleaded not guilty. A trial by jury resulted in a verdict of guilty, and an assessment of plaintiff's damages at the sum of $4000, and after overruling a motion for new trial, the court rendered judgment upon the verdict.
On the trial the plaintiff, who is the widow of deceased, was permitted to prove that after the time of the death of Moranda she and her children had no other means of support, save that arising from his daily earnings. The utmost that can lawfully be recovered, in actions of this kind, is compensation for pecuniary loss suffered by the widow and next of kin. It was entirely proper to show the amount of his usual earnings, and that plaintiff was his wife in life, and that they had minor children whom he was by law bound to support, and who usually shared his income; but it was wholly immaterial whether such next of kin had or had not other pecuniary resources after his death. Such evidence was held incompetent in O'Brennan's case (65 Ill. 160), and in Powers' case (74 Ill. 343).
Where the next of kin consist of collaterals, or persons whom the deceased in life was not bound by law to support, unless in a state of dependence, it may be proper to show that in his life they were supported by him. The question is, in such case, what pecuniary loss has been suffered by the next of kin. Their poverty after the death can shed no light on this question. If immediately after this disaster the plaintiff and her children had, by inheritance from other sources, become at once wealthy, it would not have abated one cent from the amount of their lawful demand in this case--(if entitled to recover at all); nor can their poverty be permitted to add thereto.
For this error the judgment in this case must be reversed, and the cause remanded for a new trial.
There is, however, another question raised by counsel for appellant which will necessarily arise upon another trial, and ought therefore to be decided now.
It is insisted that “the plaintiff's intestate and the persons running the locomotive bore such relation to each other in the service of appellant, that one could not recover of the common employer damages caused by the negligence or carelessness of the other.”
We think this position is not tenable. In Chicago and Northwestern Railroad Co. v. Swett, 45 Ill. 197, a case in which the fireman was killed by reason of the negligence of the track repairers, it was held that the doctrine in relation to fellow servants did not forbid the action. In Chicago, Burlington and Quincy Railroad Company v. Gregory, 58 Ill. 272, the right of action was sustained where a fireman on a passing train was killed by a “mail catcher” improvidently placed too near the track by other servants of the railroad company. In that case it was said the agents charged with the duty of properly locating the “mail catcher” had no possible connection with the running of the trains, in which service the fireman was engaged, and it was added: “The duties were as different and as distinct as those of a conductor and of a track repairer.”
In Toledo, Wabash and Western Railway Co. v. O'Connor, 77 Ill. 391, the plaintiff's intestate was, as in this case, a track repairer, and the injury was caused by the negligence of another servant of appellant, engaged at the time in running a train upon the track. There, the fault was that of another servant of the company--the engineer on the passing train. Here, the alleged fault was that of the fireman. It is not perceived how this case differs from that in principle. It was there held that the track repairer and the engineer of a passing train were not fellow servants, engaged in a common service, so as to exempt the employer from liability for the injury of the one by the neglect of the other.
Unless we are to overrule these, and other decisions of this court, we can not sustain the appellant in the proposition that this action is barred by the relation of these servants as fellow servants.
Counsel for appellant presses upon our attention what was said by this court in the case of Chicago and Alton Railroad Co. v. Murphy, 53 Ill. 336. In that case the servant injured was one of a party of laborers at a station, whose ordinary duties were to examine arriving trains, and take out for repairs any cars in the train needing the same. The injury was caused by the negligence of the engineer operating the switch engine used at that station for that purpose. This court, upon the facts of that case, held that the servant injured and the offending engineer “were strictly fellow servants of a common master, * * * engaged in the same general department, to-wit, the doing of the needed work upon the depot grounds for the purpose of dispatching the various trains.” And it was there said: “Under these circumstances we are wholly unable to hold * * * that deceased and the engineer were not fellow servants in such a sense as to subject them to the well established rule exempting the common master from liability in cases of this character.”
After having thus pronounced the judgment of the court upon the question arising upon the facts of the case, the learned justice who delivered the opinion of the court proceeds to comment upon an instruction which the circuit court had refused to give to the jury, and says, in that connection: “When the ordinary duties and occupations of the servants of a common master are such that one is necessarily exposed to hazard by the carelessness of another, they must be * * * regarded as fellow servants, within the meaning of this rule.”
Counsel for appellant, seizing upon this statement, insists that the judgment in the case at bar must be reversed on that ground, or the rule indicated in the case in 53 Ill. must be expressly overruled.
The decision of that case was undoubtedly correct, and does not, in any degree, militate against the views we have of this case; but the language of the opinion used in commenting upon the instruction in question in that case, was plainly too broad, and can not be sustained without overruling the decisions of this court in very many cases. In fact, in that very opinion it is said: “It is, of course, not easy to define who are to be considered fellow servants with such accuracy that doubtful cases will not occur.” As applied to the facts of that case, the instruction in the Murphy case could lead to no false conclusion, but as a definition of what shall constitute fellow servants in this class of cases, the language is plainly faulty.
If the law of this State be properly stated in that instruction, then, indeed, no action will lie for any injury in any case where the servant injured and the servant at fault were, at the time of the injury, each engaged in the ordinary duties of his service, no matter how widely removed may be their employments from each other. It is plain that if the injury did actually occur to one while in his ordinary employment, and from the negligence of the other while he was in his ordinary employment, the negligent conduct of the latter must necessarily have endangered the safety of the former. If the law be properly stated in that instruction, we ought to overrule the decisions of this court in Shannon's case, 43 Ill. 338, and in Swett's case, 45 Id. 197, and in Welch's case, 52 Id. 183, and in Ryan's case, 60 Id. 171, and in O'Connor's case, 77 Id. 391, and in other like cases. In all these cases, both the plaintiff and the man by whose negligence the injury was caused, at the time of the injury “were in the employment of the defendant, and their ordinary occupations in such service bore such relation to each other that the careless and negligent conduct of the servant at fault endangered the safety of the plaintiff.” Otherwise he could not have been, in such case, injured in fact, and yet in all these cases it was held the action would lie. We are not prepared to overrule these decisions or depart from their teachings, and are, therefore, upon mature consideration, compelled to disapprove of what was said in the Murphy case about the instruction discussed in that opinion, although it seems afterwards to have been referred to with approbation in the case of Valtez v. Ohio and Mississippi Railway Co. 85 Ill. 500.
What we have said is enough to dispose of this case, but the able, earnest and elaborate argument of counsel for the appellant seems to call for some further discussion. Recognizing that his position is not in accord with the decisions of this court in the cases referred to supra, wherein the common master has been held liable for damage done to one employee, by the negligence of another engaged in the...
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