Chicago & Rock Island Railroad v. Hutchins

Mr. Chief Justice Walker delivered the opinion of the Court: Appellee claimed to recover on the ground of negligence by the company. First, in not keeping in repair the fence sepating their road from his pasture, in consequence of which the animals got on the road and were killed; and secondly, in failing to ring a bell or sound a whistle, as required by law, at the road crossing at which the animals were killed. The questions were fairly presented to the jury, and they have found that there was negligence on the part of the company. The evidence was sufficient to warrant the finding, and although it may not have been entirely free from doubt, still the verdict is not clearly against the weight of evidence, and, unless it was, the verdict will not be disturbed. A reversal is urged upon the ground that the engine driver was not permitted to testify as to whether the bell was rung at the road crossing where the animals were found. If his neglect of duty caused the injury, and the company should be held liable, he would be liable over to them. His engagement implies the discharge of every duty pertaining to the place. The engine and all of its parts are completely under his control, and the fireman is subject to his orders. -This is necessarily so, as otherwise the fireman could regulate the speed, and not the driver. It appears to be customary for the engine driver to ring the bell or sound the whistle at all road crossings, and to frighten stock from the track when the train is in motion. It is true, that he may require this to be done by the fireman, but still it is under the direction of the driver. There can hardly be a doubt, that in the absence of all agreement or instructions, it would be the duty of the engine driver to sound the whistle or ring the bell at all places required by the law. Such is believed to be the universal custom in this country, and it must be understood to enter into and form a part of his contract when employed by the company. Such being his duty, by a neglect to perform it on his part, he becomes liable over to his employers when they have been compelled to respond in damages for his non-performance of duty. This being so, he has a direct interest in preventing a recovery against the company. Galena and Chicago Union R. R. Co. v. Welch, 24 Ill. 31. Nor can we see that his interest is balanced. If the owner of the property is defeated in a recovery, not only the company, but he, escapes all liability. And it does not matter that the owner may elect to sue either the driver or company, because when a jury have found in an action against the company that there was no negligence, it is a bar to a recovery against the agent. There was, therefore, no error in not permitting the engine driver to testify on the question whether the bell was rung. Hpon a careful examination of the instructions, we perceive no error either in giving, modifying or refusing them. They appear to have stated the law correctly as it was applicable to the evidence before the jury. They were not calculated to, nor do we think they misled the jury. No error is perceived in this record, and the judgment of the court below must be affirmed. Judgment affirmed.