The Wabash v. Peyton

• Citation: 106 Ill. 534,46 Am.Rep. 705,1883 WL 10245
• Parties: THE WABASH, ST. LOUIS AND PACIFIC RAILWAY COMPANYv.ANNIE M. PEYTON.
• Decision Date: 10 May 1883
• Court: Supreme Court of Illinois

106 Ill. 534

1883 WL 10245 (Ill.)

46 Am.Rep. 705

THE WABASH, ST. LOUIS AND PACIFIC RAILWAY COMPANY

v.ANNIE M. PEYTON.

Supreme Court of Illinois.

Filed at Ottawa May 10, 1883.

OPINION TEXT STARTS HERE

APPEAL from the Appellate Court for the First District;--heard in that court on appeal from the Circuit Court of Cook county; the Hon. THOMAS A. MORAN, Judge, presiding.

Messrs. SLEEPER & WHITON, for the appellant:

Negligence is not actionable unless it is the proximate cause of the injury complained of. The law can not undertake to trace back the chain of causes indefinitely. No one is guilty of culpable negligence by reason of failing to take precautions which no other man would likely take under the circumstances. (Shearman and Redfield on Negligence, secs. 6, 9, 10.) And whether a given state of facts constitutes negligence, is a question of law, though whether a particular act of negligence contributed to the injury is a question of fact. Ibid. sec. 11; Railroad Co. v. Armstrong,52 Pa. St. 282; Tarwater v. Railroad Co. 42 Mo. 193; Gee v. Railroad Co.L. R. 8 Q. B. 161; Beisiegle v. Railroad Co. 40 N. Y. 9; Glassey v. Railroad Co. 57 Pa. St. 172.

For analogous cases where the damages have been held too remote to justify a recovery for acts of negligence: Sharp v. Powell, L. R. 7 C. P. 253; Morrison v. Davis, 20 Pa. St. 171; Railroad Co. v. Cole, 41 Ind. 331; Phillips v. Dickerson, 85 Ill. 11; Fent v. Toledo, Peoria and Warsaw R. R. Co. 59 Id. 349; Toledo, Wabash and Western R. R. Co. v. Muthersbaugh, 71 Id. 572; Illinois Central R. R. Co. v. Phillips, 55 Id. 194; Brown v. Kendall, 6 Cush. 292; Mott v. Railroad Co. 1 Rob. 585; Hoag v. Railroad Co. 85 Pa. St. 293; Hartfield v. Roper, 21 Wend. 615; Bizzle v. Booker, 16 Ark. 308; Cornman v. Railroad Co. 4 Hurl. & N. 781.

But if there was actionable negligence it was that of Riddell, the depot-master of the Western Indiana company, alone, for which he and his superior are liable. It is true Shadel was on our engine when the injury happened, but, pro hac vice, whose servant was he? The rule of respondeat superior does not apply if the alleged employer has no right to control the acts of his alleged servant. Laugher v. Pointer,5 B. & C. 550; Blake v. Ferris, 5 N. Y. 48; Stevens v. Armstrong, 6 Id. 435; Buffalo v. Holloway, 7 Id. 493; McCafferty v. Railroad Co. 61 Id. 178; Murphy v. Caroli, 3 Hurl. & Colt. 462; Fletcher v. Railroad Co. 1 Allen, 9; Speed v. A. and P. R. R. Co. 71 Mo. 303; Railroad Co. v. Carroll, 6 Heisk. 347; Pfau v. Williamson, 63 Ill. 16; Gray v. The “ John Frazer,” 21 How. 193; Ohio and Mississippi R. R. Co. v. Davis, 23 Ind. 553; Felt v. Dean, 22 Vt. 170; Ladd v. Chotard, 1 Ala. 366.

Mr. FRANK BAKER, for the appellee:

This is not the case of an injury resulting from the negligence of an independent contractor in some casual act, but a case of failure to perform a duty imposed by law, whether operating on its own or another's road. Where the thing the contractor does is one which it is the duty of the employé to do, either personally or through an agent, the employé is liable for the contractor's negligence. Wharton on Negligence, sec. 185.

One bound to perform a duty can not relieve himself from liability for its non-performance by a contract he may make for its performance by another. Shearman and Redfield on Negligence, sec. 15; Story on Agency, sec. 453; Webb v. P. and K. R. R. Co. 57 Maine, 128.

For failure to fence, both lessor and lessee companies are liable. East St. Louis R. R. Co. v. Gerber, 82 Ill. 632.

Riddell, the yard-master of the Western Indiana company, was pro hac vice, as to the public, the servant of appellant, and appellant is liable for his negligence. Shearman and Redfield on Negligence, sec. 73; Oil City R. R. Co. v. Kleighorn, 74 Pa. St. 316; Vary v. B. C. R. and M. R. R. Co. 42 Iowa, 246; Laugher v. Pointer,5 B. & C. 559.

If this were not so, still the defendant is liable for any negligence of its servants contributing to the injury. Pierce on Railroads, 282; Webster v. H. R. R. Co. 38 N. Y. 260.

The damages in this case are not excessive, or such as to warrant a reversal, within the following cases: West Division R. R. Co. v. Hughes, 69 Ill. 178; Northern Line Packet Co. v. Bininger, 70 Id. 572; Chicago v. Elzeman, 71 Id. 132; Illinois Central R. R. Co. v. Ebert, 74 Id. 399; Pennsylvania Co. v. Rudel, 100 Id. 603.

Mr. JUSTICE WALKER delivered the opinion of the Court:

It appears that appellant's cars, by a lease or an agreement with the Chicago and Western Indiana Railroad Company, were permitted to run over a portion of the road of the Chicago and Western Indiana Railroad Company, at a station to which several railroad companies ran, and from which their trains departed. By this agreement the Chicago and Western Indiana Railroad Company retained the control of appellant's passenger trains over that portion of its track. By it the servants of the lessor directed and controlled appellant's servants and trains in coming in and going from the depot. The switch engine of the lessor, under the control of its employés, made up appellant's trains, and its engines drew them out. When appellant was permitted to perform that service it was under the direction of lessor's yard-master,--this being the legal relation of the two companies by the terms of the lease or agreement entered into by them. A train of appellant, on the 10th day of September, 1881, left the depot, when the injury was received by appellee. The train which produced the injury, was, by direction of the yard-master, placed in position for its departure, appellant's engine backed in and was attached to the baggage car, and whilst detained to receive the baggage some one threw some loose boards on the track, between the baggage car and the coaches. After receiving the baggage the engine backed, and was attached to the passenger cars, and the train moved out. In removing the boards, the yard-master and those assisting him left one board projecting so near the rail of the track on the left hand side of the engine, that it was struck by the end of the bar of the pilot, and being held down by the boards lying upon it, this board was forced around against a high board fence, and was driven through the fence, and it struck appellee, who was near the fence, and not seen by the engineer, and she was injured by the board striking her and dislocating her ankle, and her leg was broken just above the ankle. She brought suit in the circuit court of Cook county, and recovered a judgment against the company for $2500. The company appealed to the Appellate Court for the First District, where the judgment was affirmed, and the case is brought to this court.

Appellant insists that the injury was the result of accident, and not of negligence. The jury, and the Appellate Court, have found against this position. Whether it was caused by accident or negligence was a controverted fact, which we have been positively prohibited by statute from reviewing in this court in this class of cases. This has been so often repeated that it would seem to be an act of supererogation to repeat it here.

It is next insisted that the action, if any can be maintained, is against the Chicago and Western Indiana Railroad Company, and not against appellant. We shall consider this point with the fourth of appellant's points.

It is likewise insisted that the damages are excessive. Appellant refers to no text-book or reported case which holds that the assessment of damages is a question of law. On the other hand, by every rule of law it must be considered a question of fact. It is averred as a fact in the declaration. It is traversed as a fact, and never questioned by demurrer. On the trial damages are proved by evidence, and they are found by the jury, and not by the court. The proposition seems so obvious that it should not require the decision of a court to establish the proposition. Before the statute of our legislature conferred the power on this court to review the facts in cases brought here for decision, the courts, neither in England nor this country, ever exercised the jurisdiction to examine and assess the damages, or to balance the evidence, to ascertain whether they were correctly...