The Columbus v. Nicholas Troesch.

• Decision Date: 30 September 1873
• Parties: THE COLUMBUS, CHICAGO AND INDIANA CENTRAL RAILWAY COMPANYv.NICHOLAS TROESCH.
• Court: Illinois Supreme Court

68 Ill. 545

1873 WL 8394 (Ill.)

18 Am.Rep. 578

THE COLUMBUS, CHICAGO AND INDIANA CENTRAL RAILWAY COMPANY

v.NICHOLAS TROESCH.

Supreme Court of Illinois.

September Term, 1873.

APPEAL from the Circuit Court of Cook county; the Hon. JOHN G. ROGERS, Judge, presiding.

This was an action on the case, by Nicholas Troesch against the Columbus, Chicago and Indiana Central Railway Company, to recover damages for personal injuries. The opinion of the court states the facts and grounds upon which the recovery was sought. There was a verdict and judgment in favor of the plaintiff for $10,000 in the circuit court, to reverse which the defendant appealed.

Mr. E. WALKER, for the appellant.

Messrs. MERRIAM & ALEXANDER, and Mr. ROBERT HERVEY, for the appellee. Mr. JUSTICE SCOTT delivered the opinion of the Court:

This action is to recover for personal injuries. Appellee was a switch conductor employed in the yards of the company in Chicago. He was directed by the yard-master to move a train, consisting of from six to ten platform cars loaded with railroad iron, upon the Hoyne street switch. Appellee stood upon the front end of the forward car as the train was being pushed by the engine west on Kenzie street, at a rate of speed stated to be about seven miles per hour. Just before reaching the switch, appellee signalled the engine-driver, as he alleges, to “slow” the speed of the train. In response to the signal given, the engine-driver either shut off the steam or reversed the engine. The action, whatever it was, caused a sudden jerk of the car, which threw appellee upon the track, where he was injured by the moving cars, from which he suffered the loss of a leg and an arm. The irreparable loss suffered by appellee has commended his cause to the patient and careful consideration of the court, but we are unable to discover any tenable ground upon which to base an affirmance of the judgment in his favor.

This is a second trial had upon substantially the same evidence. Several witnesses not previously examined were introduced on the last trial, but the testimony is mainly cumulative, and presents no new phase of the case, nor does it materially strengthen the theories advanced by the respective parties.

The declaration is framed upon the hypothesis defendant was guilty of culpable negligence in two particulars: first, in furnishing for use an engine so unmanageable and so illconstructed as to be unfit for business, and second, in employing and retaining in its service an engine-driver who was unskillful, imprudent and reckless. It is averred the defective condition of the engine, and the unskillfulness and incompetency of the engine-driver, were known to defendant, or could have been by the exercise of diligence, but of which facts plaintiff was totally ignorant, and by reason of one or the other of the negligent acts charged, appellee, while in the exercise of due care, sustained the injuries. Hence it was incumbent upon the plaintiff to maintain, by a preponderance of the evidence, that the injury was caused by the negligence of defendant in permitting the use of a defective engine, or in the employment of an unskillful, reckless or incompetent engine-driver, while he was himself in the exercise of due care, and that the defective condition of the engine, or the unskillfulness or incompetency of the engine-driver, was known to defendant, or could have been known by the exercise of diligence.

The testimony offered to maintain these propositions was carefully considered upon the first appeal, and the former verdict was set aside for the sole reason it was against the weight of evidence. We have again carefully considered the case, with the additional testimony in the present record, and are driven to the conclusion the case, as made by the pleadings, is not sustained by the evidence. No reason is perceived for changing the views expressed in the former opinion, and we must adhere to that decision. C. C. & I. C. R. R. v. Troesch, 57 Ill. 155.

If this judgment can be maintained at all it must be on the propositions stated in the first and fifth instructions given to the jury at the instance of appellee:

“ First. The railroad company is to be regarded as constructively present in all acts performed by its general agents within the scope of their authority, that is, within the range of their ordinary employment.

Second. There was an implied warranty on the part of the company, at the time plaintiff was employed and put on the cars as conductor, that the locomotive engine employed in propelling the train was of reasonable, proper and safe construction, sound and in proper and good condition, so far as any defect, deficiency or unsoundness thereof might have been discovered by the exercise of proper care and diligence on the part of the company.”

The declaration counts upon the personal negligence of defendant, and not upon any implied warranty as to the fitness of the machinery furnished, nor upon any undertaking of the company as to the skillfulness or competency of the fellow servants of plaintiff in the same service. The gravamen of the action, as set forth, is the personal negligence of defendant. It would seem, therefore, to be a fatal objection to the instructions, that they directed the attention of the jury to an element of liability not involved in the case. But waiving all objection to the form of the pleadings, we do not think the doctrine asserted in either proposition can be maintained in the broad sense declared.

The application of the principle asserted in the first charge, in a case like the one we are considering, would reverse the rule that has uniformly prevailed in our jurisprudence, that one servant can not recover against the master for an injury inflicted by the negligence of a fellow laborer in a common employment. Who are the “general agents” alluded to in the charge in whose acts the company is regarded as constructively present? Is the engine-driver in charge such an agent? If we assume the company was constructively present in his acts, supervising and controlling, as the phrase is, it would follow as a logical conclusion, notwithstanding the plaintiff was engaged in a common service, defendant would be liable for any injury occasioned by his negligent conduct. In order to maintain this judgment on this principle, it would be necessary to overrule a uniform course of decisions made by this court holding a contrary doctrine. This we are not prepared to do. No doctrine is better settled than that one servant can not recover against the master for an injury occasioned by the negligence of another engaged in the same general business, if there has been ordinary care and diligence observed in the selection of servants. Connor v. Ill. Cen. R....