Valtez v. the Ohio

• Decision Date: 30 June 1877
• Citation: 85 Ill. 500,1877 WL 9599
• Parties: JOSEPH VALTEZv.THE OHIO AND MISSISSIPPI RAILWAY COMPANY.
• Court: Illinois Supreme Court

85 Ill. 500

1877 WL 9599 (Ill.)

JOSEPH VALTEZ

v.THE OHIO AND MISSISSIPPI RAILWAY COMPANY.

Supreme Court of Illinois.

June Term, 1877.

OPINION TEXT STARTS HERE

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

Mr. M. MILLARD, for the appellant.

Mr. J. M. HAMILL, and Mr. C. A. BEECHER, for the appellee.

Mr. JUSTICE BREESE delivered the opinion of the Court:

This was case, in the St. Clair circuit court, by Joseph Valtez, plaintiff, and against the Ohio and Mississippi Railway Company, defendant, to recover damages for a personal injury caused by the negligence of defendant's servants. The questions come before us on a demurrer to the evidence, which had been adjudged in favor of the defendant, and a judgment rendered against plaintiff for the costs, to reverse which he appeals, and makes the point that the demurrer was not properly framed, and should have been overruled on the ground, and for the reason, that it admitted the evidence, instead of the facts which the evidence established.

We do not appreciate the force of this objection as now made, as the record shows the plaintiff voluntarily, without any order of the court, joined in the demurrer, thus distinguishing the case from that of Dormady v. The State Bank, 2 Scam. 236. It is the office of a demurrer to the evidence, to withdraw the issues from the jury, in order that the court may pronounce the law upon the facts admitted by the demurrer. The defendant, in effect, says to the plaintiff, by demurring to the evidence, that all the facts such evidence tends to prove are admitted to exist, but upon those facts you are not entitled to recover, and on that we demand the judgment of the court.

What are the material facts admitted by the demurrer? That plaintiff was in the employment and service of the defendant, together with other servants and employees, in repairing cars, at its depot in East St. Louis; that the usual place of making such repairs was in a shed, into which one or more tracks of the company entered; that the person in charge of the repair gang, one Rein, directed this car, which required new springs to be attached, should be placed on the “dead track,” so called for the reason that cars not in use were placed there, and where there would be less switching and less danger than in the shed; that while he was so employed, he, by the negligence and carelessness of another servant of the company, employed on the same track at this depot, was badly injured. This is the substance of the proof, and the question, so often decided by this court, of respondeat superior, arises. It is unnecessary to cite the numerous cases wherein this court has held that one servant can not recover from the common master, for injuries done by a fellow servant in...