William West v. the St. Louis

• Citation: 63 Ill. 545,1872 WL 8245
• Parties: WILLIAM WESTv.THE ST. LOUIS, VANDALIA AND TERRE HAUTE R. R. CO.
• Decision Date: 30 June 1872
• Court: Illinois Supreme Court

63 Ill. 545

1872 WL 8245 (Ill.)

WILLIAM WEST

v.THE ST. LOUIS, VANDALIA AND TERRE HAUTE R. R. CO.

Supreme Court of Illinois.

June Term, 1872.

APPEAL from the Circuit Court of St. Clair county; the Hon. JOSEPH GILLESPIE, Judge, presiding.

Messrs. KASE & MILLARD, for the appellant.

Mr. JOHN SCHOLFIELD, and Mr. WM. H. UNDERWOOD, for the appellee. Mr. CHIEF JUSTICE LAWRENCE delivered the opinion of the Court:

The defendant, a railway company chartered by the legislature, contracted with the firm of McKeen, Smith & Co. to construct their road and its appurtenances. The superintendent of buildings, employed by the firm, hired the plaintiff to work upon a freight house. A poisonous mixture, in which corrosive sublimate was an ingredient, was applied to the timber to prevent decay. The plaintiff was injured by breathing the exhalations of this substance, and by handling the timber to which it had been applied. The suit was brought by him against the company to recover damages for such injury. The defense is, that the liability, whatever it may be, rests upon the contractors, and not upon the railway company. This defense prevailed in the court below.

It is not claimed, on behalf of the plaintiff, that he was in fact in the employ of the railway company, but that the work was done for the benefit of the company and by its authority, and that the contractors must be considered its servants, for whose wrongful acts in the performance of their work the company must be held responsible. In support of this position, counsel cite: Lesher v. Wab. Nav. Co. 14 Ill. 85; Hinde v. Same, 15 ib. 72; Ohio and M. R. R. Co. v. Dunbar, 20 ib. 623; Ch. St. P. and F. du Lac R. R. Co. v. McCarthy, ib. 385; Ill. Cent. R. R. Co. v. Finnigan, 21 ib. 646; Ill. Cent. R. R. Co. v. Kanouse, 39 ib. 272; T. P. and W. R. R. Co. v. Rumbold, 40 ib. 143, and C. and R. I. R. R. Co. v. Whipple, 22 ib. 105.

There is a radical distinction between each of these cases and that at bar. These were all cases in which redress was sought against a chartered company for wrongs done by persons while in the performance of acts which they would have had no right to perform except under the charter of the company. The court laid down the salutary rule that, as to such acts, the company could not escape corporate liability by having the acts performed or the work done by contractors or lessees. These persons must be regarded, in such cases, as the servants of the company, acting under its directions, and the company must see that the special privileges and powers given to it by its charter are not abused.

Thus, in the two cases cited from 14th and 15th Ill., the charter authorized the company to cut timber from adjacent land for the construction of its work. The work was done by contractors, who cut timber for which the owners required the company to pay in the manner pointed out by the statute. The company undertook to throw the liability upon the contractors, but the court held, though the company might have a remedy over against the contractors, it could not evade its own liability for property taken by virtue of its charter. So, of the two cases cited in 20 Ill., one was where the contractors, in building the road, entered upon the plaintiff's premises and took down his fence and carelessly left it down, in consequence of which his crops were partially destroyed. The court likened this case to those just cited, and said, as the contractors had no right on the plaintiff's premises except through the authority of the company under its charter, they must, to that extent, be considered as its servants, and the company must be liable for their acts. The other case in the same volume was one in which the company sought to escape liability for not performing its duties as a common carrier by showing that the road was operated by a lessee. The court held the company could not thus avoid the liabilities imposed by its charter.

The cases cited from 21st, 22d, 39th and 40th Ill. were actions brought for injuries done to cattle by the running of trains, and a like rule was laid down.

But between all these cases and the one at bar, there is a radical difference. In these, the wrong for which the action was brought was committed in the...