Wisconsin Cent. R. Co. v. Ross

• Decision Date: 12 May 1892
• Citation: 142 Ill. 9,31 N.E. 412
• Parties: WISCONSIN CENT. R. CO. v. ROSS.
• Court: Illinois Supreme Court

142 Ill. 9

31 N.E. 412

WISCONSIN CENT. R. CO.

v.ROSS.¹

Supreme Court of Illinois.

May 12, 1892.

Appeal from appellate court, first district.

Action by Marcella H. Ross, administratrix of her deceased husband, David Ross, against the Wisconsin Central Railroad Company and the Pennsylvania Company, to recover damages for the death of plaintiff's intestate. Plaintiff obtained judgment against the Wisconsin Central Railroad Company, which was affirmed by the appellate court. Defendant the Wisconsin Central Railroad Company appeals. Affirmed.

James L. High and H. S. Boutell, for appellant.

Brandt & Hoffmann and J. S. Kennard, Jr., for appellee.

MAGRUDER, C. J.

This is an action brought by appellee, as administratrix of her deceased husband, David Ross, to recover damages for his death, alleged to have been caused by the wrongful act and neglect of the appellant company and of the Pennsylvania Company. The two companies were originally made defendants, but the court instructed the jury to find the Pennsylvania Company not guilty. The only plea filed by the appellant was the general issue. The verdict and judgment in the trial court were in favor of the appellee and against the appellant. That judgment has been affirmed by the appellate court, and the case is brought here by appeal from the latter court.

The deceased was a brakeman or switchman engaged in transferring a long train, consisting of some 64 of 65 freight cars, from the tracks and yard of the Wisconsin Central Line across a portion of railroad track known as the ‘Panhandle Y’ to the tracks of the Stock Yard Company's railroad. The Panhandle Y tracks appear to have been owned on December 28, 1886, by the Chicago, St. Louis & Pittsburgh Railroad Company. By some kind of arrangement with the latter company, the trains or cars of the Wisconsin Central Line were entitled to pass from its tracks to the tracks of the Stock Yard Company's railroad over the Panhandle Y. While the deceased was so engaged in transferring said train on the day last named, one of the cars of said train, on which he stood, leaped from the track and fell over, throwing the deceased to the ground. The cars following in the rear passed over his body, killing him instantly. At the close of the testimony on both sides the defendant the Wisconsin Central Railroad Company moved the court to instruct the jury to find for it, the said defendant. It also asked the court to give to the jury a written instruction to the same effect, which instruction was refused.

There was enough evidence to justify the submission of the question of defendant's liability to the jury. The evidence tended to show that the deceased was employed by the defendant or by the Wisconsin Central Line; that the Wisconsin Central Line was not a corporation, but was a name given to an association of five or six railroad corporations, having running and traffic arrangements with each other, and having some sort of an arrangement, under a lease or contract, or otherwise, with the railroad company owning the tracks called the ‘Panhandle Y,’ by which the trains and cars of the association were permitted to pass over said tracks; that this association of corporations advertised itself as the Wisconsin Central Line; that the appellant company was one of the corporations so associated under said name, as it is admitted to be by counsel for appellant in the following words used in their brief, ‘The evidence tended to show that the railroad of appellant formed part of the route so advertised;’ that the deceased was killed while engaged in transferring a train of cars belonging to the Wisconsin Central Line over the Panhandle Y, as the servant and employe of the corporations forming that association; and that the cause of his death was the defective character of the rails and ties upon the track of the Panhandle Y, over which the train in question was passing. Upon all these questions of fact the judgment of the appellate court, affirming that of the circuit court, is final and conclusive, so far as we are concerned.

Under the facts thus stated, was the appellant liable for the death of the appellee's intestate? It is claimed that the appellant is not liable, because the defective tracks did not belong either to the appellant or to the Wisconsin Central Line. But the following propositions are well established both by reason and authority: A railroad company is responsible for accidents caused by defective tracks. It is bound to exercise due care to safely carry the passengers and property intrusted to it. It is therefore its duty to see to it that the road which it uses for such transportation is safe and in good repair, whether such road is owned by it or not. If it uses the track of another company for such purpose, it is liable for damages to its passengers or freight by reason of defects in the road of such other company so used by it. This rule applies as between the railroad company and its employes. There is no evidence that the deceased had any knowledge of the defects in the track. Where the employe of a railroad company is directed to use the road of another company in the business of his employer, he has the right to treat such road as the road of the company employing him; and every railroad company whose employes use the road of another company under its direction, or for its benefit, owes it as a duty to such employes to see that such road is not in a condition which will unnecessarily endanger their lives or limbs. The rule is thus stated in Wood, Mast. & Serv. (2d Ed.) § 357, p. 735: ‘A railway company running its trains over the track of another railway is liable to its servants for defects therein, when it would be liable if the injury resulted from defects on its own track.’ To the same effect are Stetler v. Railway Co., 46 Wis. 497, 1 N. W. Rep. 112, and cases there cited; Railroad Co. v. Kanouse, 39 Ill. 272;Elmerv. Locke, 135 Mass. 575;Snow v. Railroad Co., 8 Allen, 441. We are therefore of the opinion that the liability of the appellant cannot be defeated upon the ground that the road in use at the time of the accident did not belong to appellant or to the Wisconsin Central Line.

Equally untenable is the objection that the deceased was not in the particular service of the appellant alone. What was the precise nature of the association of the corporations operating under the name of the Wisconsin Central Line does not appear. But it appears that the deceased and several of the witnesses who testified were employed by that association. The corporations acting together paid the wages of the deceased. Such wages constituted a part of the expense of operating their roads. They were therefore sharing the expenses of such operation, whether they shared the profits or not. They owed to each of their employes the duty of seeing that the track which they required him to use was safe and in good repair. The track in question was used for their joint benefit and in their joint service. They were therefore jointly liable for any injury to their employe, resulting from a defective track, for the use of which they were jointly responsible; and the...