Wenona Coal Co. v. Holmquist

• Court: Illinois Supreme Court
• Writing for the Court: MAGRUDER
• Citation: Wenona Coal Co. v. Holmquist, 152 Ill. 581, 38 N.E. 946 (Ill. 1894)
• Decision Date: 29 October 1894
• Parties: WENONA COAL CO. v. HOLMQUIST.

152 Ill. 581

38 N.E. 946

WENONA COAL CO.

v.HOLMQUIST.¹

Supreme Court of Illinois.

Oct. 29, 1894.

Appeal from appellate court, First district.

Action on the case by Edward Holmquist against the Wenona Coal Company. Plaintiff obtained judgment, which was affirmed by the appellate court. 51 Ill. App. 507. Defendant appeals. Affirmed.Williams & McLaren, for appellant.

George Willard, for appellee.

This is an action brought by appellee against appellant to recover damaged for a personal injury resulting in verdict and judgment for the plaintiff in the trial court, and an affirmance of the judgment in the appellate court. The declaration avers that the defendant is an Illinois corporation, engaged in the business of mining and shipping coal at Wenona, and that the plaintiff was employed by it in its said business when the accidentoccurred. The first count alleges: That it was the duty of defendant to have proper rules and regulations for the conduct of its business, and make the same known to its employés, clerks, foremen, superintendent, and others in its employ, and enjoin and enforce the observance of such rules and regulations for the reasonable protection of the plaintiff from injury while engaged in said employment. That on the 13th day of February, 1891, the defendant neglected and failed to provide such rules and regulations, or to make the same known to its employeés, clerks, foremen, or superintendent, or to properly enforce or enjoin upon its said employés the observance of such rules or regulations, whereby, while the plaintiff, with due care, was engaged in loading with coal a car which was standing on a track alongside of a chute, certain other employés, not fellow servants with the plaintiff, but engaged in switching cars, allowed a certain car or cars to collide with and jam against the said car which the plaintiff was helping to load, thereby forcing said last-mentioned car against the plaintiff, and crowding and crushing him against a certain platform, and thereby seriously and permanently injuring him. The second count alleges: That it was the duty of the defendant to employ such persons as were reasonably necessary to do the work of loading coal and switching cars with reasonable safety against accident, and against injury to the plaintiff; yet on the 13th day of February, 1891, the defendant neglected its duty in that regard, and thereby the plaintiff, who, with due care on his part, was helping to load a car, standing on the track opposite a coal chute, was unable to warn certain other of defendant's employés who were switching cars for defendant, but who were not plaintiff's fellow servants, that plaintiff was thus helping to load said car, and was, notwithstanding the use of certain care on his part, in a dangerous position, so that, if said car should be moved while the plaintiff was thus situated, he might be killed or seriously injured, and defendant's employés, who were switching cars as aforesaid, could not, by the use of reasonable care, discover that plaintiff was in a position to be seriously hurt if other cars should collide with said car, whereby plaintiff was injured by another car or cars being switched and coming against said car so being loaded and forcing said car against plaintiff, and crowding and crushing him against a certain platform. The third count alleges: That, the plaintiff being in the employ of defendant as a laborer, it was the duty of defendant, by its agents and foremen, to use reasonable care, when setting the plaintiff to work, not to unnecessarily expose him to danger or injury; yet the defendant, on the 13th day of February, 1891, neglected said duty, and a certain foreman of said defendant, to wit, one John Marlin, who was not a fellow servant of plaintiff, negligently and carelessly ordered plaintiff to tend the shutter of a certain coal chute through which coal was being run into a car standing on a track opposite to said chute. That said foreman knew, or by the use of reasonable care would have known, that certain other cars on said tracks were being switched, or about to be switched, and that, unless the employés of defendant who were doing said switching were informed that plaintiff was thus engaged tending such shutter, said switchmen might run said cars against the car which plaintiff was they helping to load, and injure plaintiff. That plaintiff properly obeyed said order, and while he was, with due care, attending said chute, said switchmen, who were not fellow servants of plaintiff, switched a certain car or cars upon said track on which the car being loaded stood, and said cars so switched ran with great force against said car, and forced the car last mentioned against plaintiff, and crowded him against a platform or structure with such force and violence as to then and there seriously and permanently injure him. The fourth countalleges that: The plaintiff being in the employ of defendant as a laborer, it was the defendant's duty, by its agents and shipping clerks, to use reasonable care not to unnecessarily expose said plaintiff to danger or injury; yet the defendant, on the 13th day of February, 1891, neglected said duty, and a clerk, Charles Walker, then and there in the employ of defendant, and having charge of defendant's switchmen and work of switching, but who was not a fellow servant of the plaintiff, negligently caused certain other of the defendant's employés, who were not plaintiff's fellow servants, to switch and move certain cars at a time when Walker knew, or by the use of reasonable care would have known, that plaintiff was engaged in helping to load a certain other car in the vicinity of said cars to be switched, and that, unless said switchmen were informed that said car was being loaded, and cautioned not to allow any of the cars being switched to come in contact with said car, the plaintiff would be in great and unnecessary and unusual danger of being injured. That by reason of said negligence of said Walker, the said switchmen, not knowing that the plaintiff was engaged in helping to load said car, allowed a certain other car or cars to run against the said car so being loaded. That by the collision which thereupon took place the said car so being loaded was violently forced against plaintiff, and he was crowded and jammed against a certain platform, and seriously and permanently injured. The fifth count alleges: That, the plaintiff being then and there in the employ of the defendant as a laborer, it was the duty of the defendant to use reasonable care to employ only competent persons in the prosecution of its said business, so that the plaintiff's safety might not be unnecessarily endangered; yet the defendant, not regarding its duty, on the 13th day of February, 1891, by its officers, agents, superintendent, foremen, and clerks who were not coemployés with the plaintiff, negligently, carelessly, and improperly caused and permitted two persons, to wit, William Roberson and William Troedson, to engage in the switching of certain cars for said defendant, the said defendant then and there knowing or having reason to know that the work of switching cars was and is a work which, to be done safely and properly, required special knowledge and experience on the part of those engaged therein, and then and there knowing also, and having reason to know, that said Roberson and said Troedson did not have such special knowledge and experience, and that the said Troedson was by occupation a blacksmith, working at said trade in the business of said defendant as a miner and shipper of coal. And the plaintiff avers that by reason of said negligence, carelessness, and improper action on the part of the defendant aforesaid, and while the plaintiff, with due care and caution, was helping to load a certain car with coal, a certain other car came into violent collision therewith, by reason of the said incompetency and unskillfulness of the said Roberson and the said Troedson, whereby the plaintiff was forced and jammed between the said car so being loaded and a certain platform or structure, and whereby the plaintiff was seriously and permanently injured. A demurrer was overruled to the first, second, and third and sustained to the fourth and fifth counts, with leave to amend the declaration instanter. The plea of general issue was then filed to the whole narr., and each count of it.

The court gave all the instructions asked by both sides. Those given for the plaintiff were only two in number, and are as follows: ‘Although the jury may believe from the evidence that the plaintiff was guilty of some slight negligence contributing to the injury in question, yet such negligence will not, in law, bar him of a right of recovery herein, provided the jury shall believe from the evidence that the defendant was also guilty of negligence contributing to the injury in question, and that such negligence on the part of the plaintiff was slight when compared with the negligence of the defendant, and that such negligence on the part of the defendant was gross when compared with the negligence on the part of the plaintiff.’‘The court instructs the jury that ‘fellow servants,’ as used in these instructions, means servants employed by a common master, whose relations are such that each as to the other, by the exercise of ordinary caution, can either prevent or remedy the negligent acts of the other, or protect himself against their consequences; and where there is no right or opportunity to take measures to avoid the negligent acts of another, without disobedience to the orders of a superior, they are not fellow servants.'

MAGRUDER, J. (after stating the facts).

1. It is said that the trial court erred in overruling defendant's motion to exclude the evidence from the jury, and to instruct the jury to find for the defendant. The motion was made after the defendant had introduced its evidence and rested. Section 52 of the practice act, passed...