Illinois Southern Railway Co. v. Marshall

Mr. Justice Magruder delivered the opinion of the court: The questions, involved in this case, are within a very narrow compass. No errors are assigned as to the action of the trial court in admitting or excluding evidence. Only one instruction was given for the plaintiff below, and no objection is urged against this instruction by the appellant. Seven instructions, asked by the appellant, were given by the court, and no instruction, asked by the appellant, was refused, except the instruction asked at the close of the plaintiff’s testimony, and also again at the close of all the evidence in the case, directing the jury to find for the defendant. This latter instruction,, was refused by the court, and its refusal is the only error insisted upon by counsel for appellant in their brief. It is not claimed, as we understand the argument, that the deceased, William S. Marshall, was not in the exercise of due care for his own safety when the accident occurred. He was on the car, engaged in the performance of his duty, which was to remove the props when the leads, or upright timbers, were to be lowered, and there is no evidence, tending" to show that he was guilty of any contributory negligence. Nor is it seriously claimed, that Hoff was not guilty of the negligence, which caused the injury to Marshall. It was the duty of Hoff to attach the rope to the yoke-iron, in order that the leads might be gradually lowered, so as to rest upon the lead rest. Unless the rope was. so attached to the yoke-iron, the leads would fall suddenly and rapidly and not be gradually lowered. Hoff neglected to attach the rope to the yoke-iron, but attached ■ it, or suffered it to be fastened, to the draw-bar under the car. This was certainly great negligence on the part of Hoff. The evidence tends to show that the deceased, Marshall, was unable to see from the position, which he occupied on the car, whether or not the rope was properly attached to the yoke-iron, and he was justified in supposing that the rope was so properly fastened when he removed the jprops from the leads, or uprig'ht beams. The claim of the appellant is, that Hoff and Marshall were fellow-servants, and that, therefore, the appellant is not liable, because Marshall was injured by the negligence of a fellow-servant. It is furthermore insisted by the appellant, that Hoff and the deceased, Marshall, must be held to have been fellow-servants as matter of law, and that the question, whether or not they were fellow-servants, was not a question of fact. Appellee insists that Hoff was the foreman of the appellant company, and had charge of the men and directed them in their work; that Marshall was one of the gang of workmen, who were acting under Hoff’s direction; that it was not only the duty of Hoff to attach the rope to the iron yoke on the leads, but that it was also his duty to give the order to lower the leads when the proper time came; that Hoff was guilty of negligence in that he ordered the leads to be lowered, and thereby directed Marshall to remove the props under the leads, without having attached the rope to the iron yoke, and that the injury, which resulted in Marshall’s death, was caused by the act of Hoff, as foreman and representative of the appellant, in negligently giving the order, which Marshall obeyed, and in consequence of which he lost his life. There is conflict in the testimony upon certain material questions of fact. In the first place, Hoff testified that he was not foreman. ■ At leastthree witnesses, however, testified that he was foreman upon that day, and directed the movements of the gang, which was at work operating the pile-driver. Newton Harben, the superintendent of bridge construction for the appellant, appointed Hoff to act as foreman and control and direct the movements of the men on that day, because, the regular engineer being absent, his son, Mabre Harbin, who had previously acted as foreman, was obliged to perform the duties of engineer; and it was not possible for the engineer, while operating the engine, to direct the movements of the men in the other part of the work. Not only does the evidence tend to show that Hoff was foreman upon the occasion in question, but counsel for appellant substantially admit the fact in their brief, when they say: “We cannot deny that, on the day in question, Hoff was invested with a measure of authority over the other members of the gang. He, doubtless, was a vice-principal in certain respects.” Appellant also insists that, even if Hoff was acting as foreman upon the day in question, yet that he did not give the order to lower the leads. Several witnesses contradict him upon this subject. Mabre Harbin and Winston both testify that he did give the order to lower the leads. He, himself, admits in his testimony that he gave the order to “swing to the center,” and it is conceded on all hands that the order to lower the leads was involved in the order to swing to the center, because the only object of swinging" the beams, to the center from their position outside of the track, or near the outside of the track, was to lower them to the lead rest, and prepare for the removal of the car to the side-track. After a careful examination of all the evidence, we are satisfied that there is proof tending very strongly to show, both that Hoff was foreman, and that he gave the order, obeyed by Marshall afid resulting in his death, to lower the leads at the time in question. The theory of appellant seems to be that the injury resulted from the failure of Hoff to attach the rope to the yoke-iron, and that, in performing-or failing to perform such duty, he was acting as a fellow-servant with Marshall. While it may be true that the injury resulted to some extent from the failure to attach the rope to the iron yoke, yet it. is also true that the injury Resulted from the order of Hoff, as foreman or vice-principal, to lower the leads, and, as preliminary thereto, to remove the props from under the leads: The duty to attach the rope to the iron yoke was preliminary to giving the order to lower the leads, and he should not have given that order, unless the rope was properly attached, because, without a proper attachment of the rope, the leads would fall and injure persons upon the car. If as fellow-servant he neglected his duty in not attaching the rope, as foreman having control of the men he was guilty of negligence in ordering the leads to be lowered before the rope was properly attached. In giving this order as foreman or vice-principal, he was representing the appellant, and the appellant is certainly responsible under the decisions of this court for his negligence. Where an injury to a servant is the combined effect of the negligence of the master and of a fellow-servant, the servant may recover. (Pullman Palace Car Co. v. Laack, 143 Ill. 242). In Chicago and Alton Railroad, Co. v. May, 108 Ill. 288, we said (p. 299): “The mere fact that the servant exercising such authority sometimes, or generally, labors with the others as a common hand, will not of itself exonerate the master from liability for the former’s negligence in the exercise of his authority over the others. Every case, in this respect, must depend upon its own circumstances.” In Norton Bros. v. Nadebok, 190 Ill. 595, we said (p. 600): “When the appellee was ordered by his superior servant to put his hand into the machine and take out the ‘catch, ’ in the absence of any warning or notice, he had the right to assume that his superior, who gave the order, would not by his own negligence make the act which he had commanded him to do, and which he was bound to obey, unsafe.” In Consolidated Coal Co. v. Gruber, 188 Ill. 584, we said (p. 588): “If the action was taken by him [the foreman], in the discharge of his duties as vice-principal, his position was one of superiority, and not that of a fellow-laborer. The fact, that in the discharge of his duties as assistant mine manager he engaged temporarily in work usually performed by Nagle, would not justify the declaration, as matter of law, that he became a fellow-servant of appellee.” In Pittsburg Bridge Co. v. Walker, 170 Ill. 550, it was said (p. 554): “When the negligent act complained of arises out of, and is the direct result of, the exercise of the authority, conferred upon him [the foreman,] by the master over his co-laborers, the master will be liable.” Here, the true test is, whether the negligent act complained of arose out of, or was the direct result of, the exercise of the authority conferred upon Hoff as foreman. The proof tends to show that he directed the men in their work upon that day, and that such work was done subject to his orders and directions. When it was known that a passenger train was approaching and would pass over the track in ten minutes, Hoff, in order to get the flat-car out of the way and prevent a collision, began to direct the men in their movements. In his testimony he says that he ordered them to swing to the center; that he gave the engineer a signal to pull off the bridge; that he ordered some of the men underneath to bring out the tools, and put them on the driver. These were the orders of a master, and not the ordinary orders, given by one laborer to another merely to carry out and accomplish a common work. The orders so given affected every man in the crew at work, except the stationary engineer. They pertained to different matters, and involved discretion, and were for the protection of the master’s property, and the guidance of the crew or gang. Hoff was invested with the discretion to determine whether or not the time had arrived for the removal of the flat-car to the side-track, and whether or not the time had arrived for the lowering of the leads and for the coupling of the locomotive engine to the flat-car, so as to remove it to the side-track. The fact, that he was thus invested with discretion, and gave the order in pursuance of the exercise of such discretion, made his position and authority those of a foreman or vice-principal. In Metropolitan Elevated Railroad Co. v. Skola, 183 Ill. 454, it was held that the determination by a foreman of an electric railroad, in his capacity of vice-principal, to run certain cars in on the repair track, after ordering a car repairer to work under a car on such track, is the act of the master, and if his failure to notify the car repairer of his determination was negligence, then the fact, that he acted as motorman in running such cars, would riot relieve the master from liability under the doctrine of fellow-servants, and in that case we said (p. 457): “The contention, therefore, is, the court should have declared, as matter of law arising' out of undisputed facts, that the relation of fellow-servant existed between the deceased and the said McCrumb, and that the doctrine of respondeat superior did not apply. But the question as to what cars should be brought from the main track in and upon this cleaning", inspecting and repairing track, and when such cars should be so brought in, and where-cars so coming in should be placed thereon, was to be determined by McCrumb in the exercise of the duties devolving upon him in his capacity as vice-principal.” The question, whether the relation of fellow-servants exists, only becomes a question of law, and not of fact, when there is no dispute with reference to the facts, and when the evidence and the legitimate conclusions to be drawn therefrom are such, that all reasonable men will agree to the existence of the relation of fellow-servants. (Slack v. Harris, 200 Ill. 96; Illinois Steel Co. v. Coffey, 205 id. 206; Chicago and Eastern Illinois Railroad Co. v. Driscoll, 176 id. 330; Norton Bros. v. Nadebok, supra). In the case at bar, it cannot be said that the question, whether or not Hoff and Marshall were fellow-servants is a question of law, because, in the first place, as . has already been shown, the material facts are not undisputed, but there is a sharp conflict in reference to the same; and, in the second place, the evidence, and the legitimate conclusions to be drawn from it, are not such that all reasonable men will agree to the existence of the relation of fellow-servants. As is well said by the Appellate Court: “We are not prepared to say from the proofs in this case that all reasonable men would agree that the relation of fellow-servants existed between Hoff and Marshall.” On the contrary, instead of being fellow-servants, performing such duties as to bring them into habitual association, so that they exercised a mutual influence upon -each other promotive of proper caution, the one was subject to, and acting under the direct orders of, the other as a vice-principal and representative of the employer. But, in addition to what has been said, the questions whether or not Hoff and the deceased were fellow-servants, and whether or not Hoff was a foreman or vice-principal representing the employer, were questions of fact, which were submitted to the determination of the jury under instructions, given for appellant, and which the appellant itself asked in its own behalf. In Offutt v. World’s Columbian Exposition, 175 Ill. 472, we said (p. 478): “It is also insisted that the evidence showed that, if there was any negligence of the defendant, it consisted in the negligence of the foreman, Hunt, when he was acting as a fellow-servant with the plaintiff in the same line of service. This is also a question of fact, with the evidence strongly tending to prove the contrary. The evidence tends to prove that Hunt was acting as foreman, representing the common master, and in that capacity gave specific orders to the plaintiff to perform the very act, which caused the injury, and, as the case is presented here, we must of course so assume.” This language is precisely applicable to the present case. Whether or not the negligence of the present appellant consisted in the negligence of the foreman, Hoff, when he was acting as a fellow-servant, was a question of fact to be determined by the jury, and has been settled by the judgments of the lower courts so far as we are concerned. (See also Martin v. Chicago and Northwestern Railway Co. 194 Ill. 138). In Chicago Hair Co. v. Mueller, 203 Ill. 558, it was held that an assistant foreman, such as Hoff is claimed to have been in the present case, who is sometimes engaged in labor as a common workman with other servants, is not necessarily and as matter of law, their fellow-servant; and we there said (p. 562): “The evidence showed that Hermes held the position of assistant foreman to the appellant company; that he hired and discharged employes; that he gave orders to appellee and other employes, and the evidence tended to show that on the day in question he had charge and control of the work of getting the bales out of the warehouse, and that he occupied a position of superiority to appellee and the other workmen. The mere fact, that Hermes engaged in some labor as a common workman, did not, as a matter of law, make him any the less a vice-principal. * * * It was a question of fact whether he sustained the relation of fellow-servant to the appellee.” The judgment of the Appellate Court is affirmed. Judgment affirmed.