The Toledo v. Durkin

• Decision Date: 31 January 1875
• Citation: 76 Ill. 395,1875 WL 8219
• Parties: THE TOLEDO, WABASH AND WESTERN RAILWAY CO.v.MARY DURKIN, Admx. etc.
• Court: Illinois Supreme Court

76 Ill. 395

1875 WL 8219 (Ill.)

THE TOLEDO, WABASH AND WESTERN RAILWAY CO.

v.MARY DURKIN, Admx. etc.

Supreme Court of Illinois.

January Term, 1875.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Madison county; the Hon. WILLIAM H. SNYDER, Judge, presiding.

This was an action on the case, by Mary Durkin, administratrix of the estate of Lawrence Durkin, deceased, against the Toledo, Wabash and Western Railway Company, to recover compensation for wrongfully and negligently causing the death of said Lawrence Durkin. The deceased was engaged as an employee of the defendant at the time he was killed. He was returning to his home at the time on a platform car, with other hands, and the train, while backing, struck some cattle on the track near a road crossing, whereby the car on which the deceased was sitting was thrown from the track and he was killed. The cause was tried by the court below, without a jury, on an agreed statement of facts. The court found for the plaintiff, and rendered judgment for $3000 in favor of the plaintiff, and the defendant appealed.

Mr. G. B. BURNETT, for the appellant.

Mr. CHARLES CONLON, for the appellee.

Mr. JUSTICE BREESE delivered the opinion of the Court:

This is an appeal from a judgment of the circuit court of Madison county, rendered on an agreed state of facts, presenting the single question, so often and so uniformly adjudicated by this court, and by other courts in England and in this country, arising out of the doctrine of respondeat superior.

So far back as the case of Honner v. The Illinois Central Railroad Co. 15 Ill. 550, decided in 1854, this court said this doctrine did not extend to the case of an injury received by one servant through the carelessness of another, when both are engaged in the business of the principal.

This case was followed by Illinois Central Railroad Company v. Cox, 21 ib. 20, with a slight qualification, the court holding that a railroad company or other corporation are not responsible for injuries to their servants or agents occasioned by the carelessness or negligence or unskilfulness of fellow-servants while acting in the same service, without their knowledge or sanction, provided such company or corporation have taken proper care to engage competent servants to perform the duty assigned them. It was further held, when a person enters into the service of a railroad company he thereby undertakes to run all the ordinary risks incident to the employment, including his own negligence or unskilfulness, and this includes the risk of occasional negligence or unskilfulness of his fellow-servants engaged in the same line of duty, or incident thereto, provided such fellow-servants are competent and skilful to discharge the duty assigned them.

Reference was made to Honner v. Ill. Cent. R. R. Co. supra, and numerous English and American cases, all holding the same doctrine, among which were Hutchinson, Admx. v. The York, New Castle and Berwick Railway Co. 5 Exch. 341; Wymore, Admx. v. Jay, ib. 353; Skip v. Eastern Counties Railway Co. 24 Eng. L. and E. 396; Wiggott v. Fox, 36 ib. 486; Farwell v. Boston and Worcester R. R. Co. 4 Metc. 49; Murray v. S. Carolina R. R. Co. 1 McMullen, 385; Brown v. Maxwell, 6 Hill (N. Y.) 592; Ryan v. Cumberland Valley R. R. Co. 23 Penn. 384; Shields v. George, 15 Geo. 349; Madison and Indianapolis R. R. Co. v. Bacon, 6 Ind. 205.

The doctrine of the case in 15 Ill. and 21 ib. supra, was followed and adhered to with no shadow of change by Moss v. Johnson, 22 Ill. 633; Ch. and N. W. R. R. Co. v. Swett, Adm. 45 ib. 201; Ill. Cent. R. R. Co. v. Jewell, 46 ib. 99; Chicago and Alton R. R. Co. v. Keefe, 47 ib. 108; and Same v. Murphy, 53 ib. 336; C. B. and Q. R. R. Co. v. Gregory, 58 ib. 272; C. and A. R. R. Co. v. Sullivan, 63 ib. 293.

In Keefe's case, supra, this court said, commenting upon the cases in 15 Ill. 20, and 22 Ill. supra, that the decisions therein were in conformity with the great current of authorities, and that the question, whether one servant could recover against the common master for injuries resulting from the carelessness of a fellow-servant, if the master had used due diligence in their selection, was no longer an open question in this court.

In this case the facts agreed concede the competency of the fellow-servants of the injured party, and in opposition to these decisions of this court of last resort, pronounced with great unanimity,...