Yards v. Monaghan
| Decision Date | 31 March 1883 |
| Parties | UNION STOCK YARDS AND TRANSIT COMPANYv.PETER MONAGHAN. |
| Court | United States Appellate Court of Illinois |
OPINION TEXT STARTS HERE
APPEAL from the Superior Court of Cook county; the Hon. JOSEPH E. GARY, Judge, presiding. Opinion filed June 27, 1883.
This action was case brought by the appellee Monaghan against the appellant corporation, to recover for a personal injury to the former received by the sudden caving in of a bank of earth, while he, as the employe of appellant, was digging in the same, occasioned, as the plaintiff claimed, by reason of the negligence of appellant.
On the trial, under the general issue, the plaintiff himself gave testimony, and was corroborated by another witness, tending to show that the injury occurred by reason of the negligence of one Heaney, who was the foreman of a gang of men, all in the employment of appellant, and of which the plaintiff was one. But in opposition to the facts on which that theory was based, the defendant introduced several witnesses, who directly contradicted the plaintiff and his witnesses, and who also gave testimony tending to show that the plaintiff was himself guilty of negligence which contributed to the injury complained of. The court, on behalf of the plaintiff, gave to the jury this instruction:
“If the jury believe from the evidence that Heaney, the foreman, was in charge of a gang of men, of which the plaintiff was one, and that said Heaney had the power to direct and order the men where they were to work, and how they were to work, just as the employer would, and that he, Heaney, in the conduct of such business, had the authority and exercised the right to hire, or discharge the men under him, and that said Heaney, if thus employed, and acting by the authority of the defendant corporation, directed the plaintiff to go to work undermining the bank in question, and that after said bank had been undermined some feet, the plaintiff asked said Heaney if the bank was not getting dangerous, while said Heaney was standing on top of bank, and that said Heaney told plaintiff that it was not, and to go on and dig it good and he would watch and give him notice, and that thereupon the plaintiff relied upon the assurance of said Heaney, and went to work again undermining, and that within a minute or immediately thereafter, said bank fell and injured plaintiff, and if the jury further believe from the evidence, in addition to the above, that the position of the said Heaney on said bank, was one which afforded him better opportunity for knowing the danger, than that occupied by the plaintiff, and that the plaintiff was guilty of no negligence himself in so working, and if they believe from the evidence that said Heaney, if so authorized and constituted by the defendant, was guilty of negligence or indifference to the personal safety of plaintiff in so directing him to work, if he had so directed him, or in failing to properly notify him of the danger, if he did so fail, and if they believe from the evidence and circumstances proven, that the negligence of Heaney was gross in that respect, and that the negligence of the plaintiff, if any, was slight, then the jury will find the defendant guilty, and assess the plaintiff's damages at whatever sum the evidence will sanction.”
The jury found the defendant guilty and assessed plaintiff's damages at two thousand dollars. Overruling the defendant's motion for a new trial, the court gave judgment for that sum, and defendant brings the case to this court by appeal.
Mr. IRUS COY, for appellant; as to a variance between the allegata and probata, cited 1 Chitty on Pleading (15 Am. ed.), 392; City of Bloomington v. Goodrich, 88 Ill. 558; City of Bloomington v. Read, 2 Bradwell, 542; L. S. & M. S. R. R. Co. v. Beam, 11 Bradwell, 215; Moss v. Johnson, 22 Ill. 633; I. C. R. R. Co. v. McKee, 43 Ill. 120.
When an employe has the same means of knowledge in relation to the danger of the work upon which he is employed, that the employer has, and does not object thereto, he can not sustain an action for an injury sustained thereby: Penn. Co. v. Lynch, 90 Ill. 334; Chicago & T. R. R. Co. v. Simmons, 11 Bradwell, 147; Priestly v. Fowler, 3 M. & W. 1; Dynam v. Leach, 40 Eng. L. & E. 491; Krag v. R. R. Co. 32 Ia. 357; Naylor v. C. & N. W. R'y Co. 53 Wis. 661; Shearman & Redfield on Negligence, 123, § 94; Frazier v. Penn. R. R. Co. 38 Penn. 104; Hughes v. W. & St. P. R. R. Co. 6 N. W. Rep. 553; Camp Pt. M'f'g Co. v. Ballou, 71 Ill. 552; Mich. Cen. R. R. Co. v. Austin, 10 Mich. 247; C. & N. W. R'y Co. v. Scheuring, 4 Bradwell, 541; Clark v. C. B. & Q. R. R. Co. 92 Ill. 43; Hays v. Trans. Co. 3 Cushing, 270; Mad River & L. E. R. R. Co. v. Barber, 5 Ohio St. 541; Hayden v. Smithville M'f'g Co. 29 Conn. 549; Buzzell v. Laconia M'f'g Co. 48 Me. 113; Wright v. N. Y. C. R. R. Co. 25 N. Y. 564.
A master can not be made liable for an injury caused by a servant's own negligence or that of his fellow servant in the same line of business: Springfield Iron Co. v. Gould, 11 Bradwell, 439; Cooley on Torts, 541; I. C. R. R. Co. v. Case, 21 Ill. 23; C. & A. R. R. Co. v. Keefe, 47 Ill. 108; C. & A. R. R. Co. v. Murphy, 53 Ill. 336; Gartland v. Toledo, W. & W. R. R. Co. 67 Ill. 495; I. C. R. R. Co. v. Keen, 72 Ill. 512; T. W. & W. R. R. Co. v. Durkin, 76 Ill. 396; C. & A. R. R. Co. v. Rush, 84 Ill. 571; Wattey v. R'y Co. 85 Ill. 370; C. & N. W. R'y Co. v. Moranda, 93 Ill. 303.
To establish negligence the plaintiff must prove that the defendant undertook personally to superintend and direct the work, or that the persons employed for that purpose were not proper and competent persons: Honner v. I. C. R. R. Co. 15 Ill. 550; I. C. R. R. Co. v. Cox, 21 Ill. 24; C. & A. R. R. Co. v. Keefe, 47 Ill. 108; C. & A. R. R. Co. v. Murphy, 53 Ill. 336; C. C. & I. C. R. R. Co. v. Troesch, 68 Ill. 550.
The foreman of a gang of laborers is a fellow servant with the men under his control: Thompson on Negligence, 1028; Marshall v. Shricker, 63 Mo. 308; Daubert v. Pickle, 40 Mo. App. 590; Cum. Coal & Iron Co. v. Scalley, 27 Mo. 589; O'Conner v. Roberts, 120 Mass. 227; Albro v. Canal Co. 6 Cush. 75; Summersell v. Fish, 117 Mass. 312; Ziegler v. Day, 123 Mass. 152; McLeon v. Blue Pt. M. Co. 51 Cal. 255; Hamilton v. Iron M. R. R. Co. 4 Mo. App. 564; Weger v. Penn. R. R. Co. 55 Pa. St. 460; Halverson v. Nison, 3 Sawyer, 562; Malone v. Hathaway, 64 N. Y. 5; Bonn v. Maxwell, 6 Hill, 592; Sherman v. R. R. Co. 17 N. Y. 153; Hoppnagle v. N. Y. R. R. Co. 55 N. Y. 68; Murphy v. Smith, 19 C. B. (N. S.) 361; Howell v. Steel Co. L. R. 10, L. B. 62; Gallagher v. Piper, 16 C. B. (N. S.) 661.
As to instructions: Gibson v. Webster, 44 Ill. 483; Harriet v. Thompson, 46 Ill. 460; Bullock v. Narrott, 49 Ill. 62; Bailey v. Godfrey, 54 Ill. 507; C. B. & Q. R. R. Co. v. Harwood, 90 Ill. 425; T. W. & W. R. R. Co. v. Moore, 77 Ill. 217; T. W. & W. R. R. Co. v. Asbury, 84 Ill. 429; St. L. & S. E. R. R. Co. v. Britz, 72 Ill. 256.
Messrs. HYNES, ENGLISH & DUNNE for appellee; that where the employer leaves everything in the hands of a middleman, reserving to himself no discretion, the middleman's negligence is the employer's negligence for which the latter is liable, cited 2 Thompson on Negligence, 1030; Stoddard v. St. L. etc. R. R. Co. 65 Mo. 514; Washburn v. Nashville, etc. R. R. Co. 3 Head, 638; Ramsey v. Quinn (Irish C. P. 1874), 4 Cent. L. J. 478; Brothers v. Cartler, 52 Mo. 372; Chapman v. Erie R. R. Co. 55 N. Y. 583; Kansas R. R. Co. v. Little, 19 Kan. 267; Walker v. Bolling, 22 Ala. 294.
A servant may recover although he knows of the risk of danger, if he acts in obedience to the master, and it is reasonably probable that the danger could be avoided by extraordinary caution: Patterson v. Pittsburg, etc. R. R. Co. 76 Penn. St. 389; Keegan v. Kavanaugh, 62 Mo.
Where the employer, by its foreman, entered into a special agreement with a servant to protect him from danger, the master is bound by such agreement: Bradley v. N. Y. C. R. R. Co. 62 N. Y. 99.
Where, on appeal or writ of error, prosecuted by the defendant below, it shall appear from the bill of exceptions that the evidence was substantially conflicting upon any fact or facts, indispensable to the plaintiff's right to recover, and error is assigned upon the giving instructions to the jury on behalf of the plaintiff, by the court below, then, if this court shall find that such instructions were calculated to...
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