Western Stone Co. v. Whalen

• Decision Date: 19 June 1894
• Citation: 38 N.E. 241,151 Ill. 472
• Parties: WESTERN STONE CO. v. WHALEN.
• Court: Illinois Supreme Court

151 Ill. 472

38 N.E. 241

WESTERN STONE CO.

v.WHALEN.¹

Supreme Court of Illinois.

June 19, 1894.²

Appeal from appellate court, first district.

Action by John Whalen against the Western Stone Company for personal injury. Plaintiff obtained judgment, which was affirmed by the appellate court. Defendant appeals. Affirmed.

This was an action for personal injuries sustained by appellee, resulting in the loss and amputation of his leg below the knee. Appellant owned a steam propeller used in towing its canal boats and barges through the waters of the Illinois and Michigan canal and Chicago river, which was under the control and management of Capt. Cooley. Appellee was in charge of the Rescue, one of the many barges owned and operated by appellant in carrying stone from Lamont to Chicago. The custom was, in making up the fleet, for the propeller of which Cooley was captain to take either two or three boats at a time. Cooley received orders to tow out three barges,-the Rescue, Brown, and Servia. He first took up the Servia, and ordered the Rescue and Brown to be made fast to her. The Brown was lashed to the stern of the Rescue, which was in turn to be attached by line to the Servia, thus completing the tow. The contention was that by the negligence and recklessness of the captain of the propeller, in running too fast, etc., Whalen was caught in the towline, and his leg crushed against the Samson post, etc. The trial resulted in a verdict and judgment for the plaintiff, which, on appeal to the appellate court, was affirmed.

Among other instructions asked, the following requests for special findings were given and answered: ‘Requests given, with answers: (2) Was it necessary for the captain of the steamboat Excelsior to run that boat at a higher rate of speed than usual in order to keep her headway, or to keep her from blowing across the river? A. No. (3) Did the plaintiff use his towline to fasten the canal boat Rescue to the tow? A. Yes. (6) Did the plaintiff see and know of the rate of speed at which the Excelsior was going before and at the time of the injury? A. He knew the rate of speed immediately before the injury, but not at the time of the injury. (7) Was the Excelsior going at too great a rate of speed? A. Yes. (8) Was she going at such a rate of speed as to make it dangerous to attempt to make fast to the Servia? A. No; not if Capt. Cooley had slacked down his speed. (9) Was she going, just before and at the time of the accident, at a dangerous rate of speed? A. Yes. (11) Did the accident happen from his being caught in the towline? A. Yes. (12) Was his leg caught in the towline and dragged against the Samson post? A. Yes. (13) Did the fracture and injury to his leg happen in this way? A. Yes. (16) Could the plaintiff, by the exercise of ordinary care, have avoided the alleged accident? A. No. (17) Was the plaintiff a coemployé with Capt. Cooley? A. Yes. (18) Was he associated with Capt. Cooley, and engaged in the same line of business, at the time of the alleged injury, namely, making up the tow? A. Yes. (19) Was Capt. Cooley guilty of negligence in running the Excelsior at too high a rate of speed? A. Yes. (20) Did the injury to the plaintiff occur from the negligence of Capt. Cooley in running the Excelsior at too high a rate of speed? A. Yes. (21) Was the danger from which the injury resulted one which the plaintiff was acquainted with, or might have foreseen by the exercise of ordinary care and prudence? A. No. (23) Was the plaintiff guilty of negligence in placing himself in a dangerous position, but for which the accident would not have happened? A. No. (24) Was the plaintiff's negligence gross, when compared with that of the defendant? A. No. (25) If you believe from the evidence that after the employment of said Cooley, and before the said alleged accident, his reputation for being a competent, careful, and skillful man in running and operating the said steamboat Excelsior was bad, do you find from the evidence that the defendant's manager had any notice of such fact? A. No.’

Other facts necessary to an understanding of the case are stated in opinion.D. J. Schuyler, for appellant.

Duncan & Gilbert, for appellee.

SHOPE, J.

As we understand this record the right of recovery by plaintiff, under the first and third counts of his declaration, is eliminated by the finding of the jury that Cooley, captain of the steam propeller, and the plaintiff were fellow servants in the same line of employment; and this, as we understand, is conceded by counsel on both sides. And it seems clear that recovery was predicated, and by the court permitted to stand, upon the second count of the declaration, which alleged, among other things, that it was the duty of the defendant to employ a prudent and competent captain for said steam propeller, but the defendant, disregarding its duty in that behalf, employed one who was incompetent, etc., which was unknown to the plaintiff, and that by reason of the incompetency, etc., of said captain, the plaintiff, while in the exercise of due and proper care and caution on his part, was injured, etc. The jury were requested to make, and made, as will be seen from the foregoing statement, a number of special findings at the instance of appellant. The jury found that the propeller was run at an unusual, too great, and a dangerous rate of speed, in making up the fleet, and at the time of the injury to plaintiff; that the rate of speed was not dangerous, if the captain of the propeller had slackened it when attempting to pick up the rescue, of which plaintiff was in charge; that the plaintiff knew the rate of speed at which the propeller was going before, but not at the time of, the injury; that Cooley was guilty of negligence in running the propeller at too high a rate of speed; and that the injury to plaintiff resulted from such negligence. They also specially found that the plaintiff could not, by the exercise of ordinary care, have avoided the injury; that the danger from which the injury resulted was not one which might have been foreseen by the plaintiff, in the exercise of ordinary care and prudence; and that the plaintiff was not guilty of negligence in placing himself in a dangerous position, etc. They also found that the plaintiff and Cooley, captain of the propeller, were fellow servants. No instruction was given on the part of the plaintiff, except one announcing the general rule to be observed in determining the weight to be given to the testimony of the various witnesses. By the second instruction given on behalf of appellant the jury were told that if they found that plaintiff and Cooley were coemployés, engaged in the same line of service, then, although the jury believed that the injury was occasioned by the negligence, carelessness, or unskillfulness of Cooley, the plaintiff could not recover, unless they further believed from the evidence that in the employment of said Cooley as captain of said steam propeller the defendant did not exercise ordinary care and caution. The third instruction given for appellant was to the same effect, and informed the jury that although they believed that Cooley ran the steam propeller at too high rate of speed, and that in doing so he ran and operated the same in a negligent and careless manner, and that the injury resulted from such negligence, this was one of the risks assumed by plaintiff in entering into the employment, and plaintiff could not recover ‘unless the jury shall further believe from the evidence that said defendant was guilty of a want of ordinary care and prudence in employing said Cooley.’ Without extending the discussion, it seems manifest, from the course of the trial, the instructions of the court, and the findings of the jury, that the right of the plaintiff to recover depended upon the question of whether defendant was or was not guilty of negligence in the employment and retention of said Cooley as captain of its steam propeller used in making up and transporting its fleet of boats. Whether the defendant was guilty of negligence in the respect indicated was a question of fact, which has been conclusively determined against appellant by the judgment of the appellate court approving the finding of the lower court upon questions of fact.

It only remains to consider whether error intervened in the rulings of the court in the admission of testimony and upon instructions, and in overruling the motion in arrest of judgment.

The plaintiff, for the purpose of carrying knowledge home to the defendant of the incompetency and reckless character of the person it had employed as captain of its towing vessel, offered proof tending to show the general reputation of said captain as to prudence and carefulness in running and managing the steamboat, and that such general reputation was bad, along the line of the Illinois and Michigan canal and Chicago river, where the defendant was transacting its business. It appeared from the evidence that he had been engaged in that business about nine years, as we understand it, upon the same waters. It is objected that no time was fixed, to which the attention of the witnesses was called. We think the objection without merit. Aside from the general rule that a state of facts once shown to exist is presumed to continue until the contrary is made to appear, the attention of the witnesses was sufficiently directed to cover the time while he was so running upon such waters. It is not questioned that there was evidence before the jury tending to show that the captain was guilty of negligence from which the injury resulted, and it became important and proper for plaintiff to show, if he could, that the defendant was guilty of negligence in employing him and keeping him in command in making up and transporting its fleet of boats.

It is insisted by counsel for appellant that evidence offered for the purpose of charging a principal with notice, in actions of this character, should...