Roebling Construction Co. v. Thompson

Mr. Justice Vickers delivered the opinion of the court: Plaintiff in error insists that this court should hold, as a matter of law, that the relation of fellow-servants existed between Morrison, the foreman, and defendant in error, in relation to the act of Morrison in giving the signal to lower the elevator. It is contended that if Morrison was a vice-principal in a general sense, yet when he undertook the performance of a duty which usually belonged to a fellow-servant, he was, as respects that particular act, a fellow-servant and not a vice-principal. This rule invoked as applicable to the case of plaintiff in error is well established in this State and has been frequently applied by this court. (Chicago and Alton Railroad Co. v. May, 108 Ill. 288; Gall v. Beckstein, 173 id. 187; Baier v. Selke, 211 id. 512.) The rule applied in the foregoing cases is, that the master is not liable for an injury received by a servant through the negligence of a vice-principal while acting as a co-laborer with the injured servant and where the injury is not the result of the exercise of the authority of the vice-principal. It is no longer open to question in this State that the vice-principal may, as regards certain acts, be a fellow-servant with other servants over whom, in his capacity as vice-principal, he has control and power of direction. This rule, however, will not exempt the master from liability where the injury results from the negligence of the vice-principal as such, in combination with the negligence of such vice-principal in the’ capacity of fellow-servant. This is the application of the well recognized rule that where the injury results from the combined negligence of the master and the fellow-servant, and the negligence of the master is such that the injury would not have happened but for his negligence, the master is liable. The case of Norton Bros. v. Nadebok, 190 Ill. 595, is in point on this question. Other authorities cited in the Nadebok case are in line with it and fully sustain the conclusion there reached. That case is much like the case at bar in all of the essential facts. There the vice-principal had commanded the servant to place his hand into a machine and take out a “catch,” and while the servant’s hand was in this machine, the vice-principal, by his own act, started the machinery going, resulting in an injury. In disposing of that case this court, on page 599, said: “It is admitted that Banning was a superior servant and had authority from appellant to direct appellee to put his hand into the machine and take out the catch, but it is contended that as to the manual act of starting the machine at the instant when the injury occurred, as Banning had no delegated authority from the common master to order someone else to set the machine in motion instead of himself doing so, but was himself employed to do that act with his own hand, he was not, as to that act, the superior but was the fellow-servant of the appellee, and that appellant is not liable for the consequences of Banning’s negligence in starting the machine while appellee’s hand was in the same, as such negligence did not consist in the abuse of his delegated authority. In other words, it is conceded that Banning was a superior servant when he ordered appellee to put his hand into the machine and take out the catch, but, it is said, in the act'of immediately starting the machine he was his fellow-servant, and it is contended, as it is conceded that Banning was employed to operate said machine, the question as to whether he was the fellow-servant of appellee at the immediate time when he started the machine is a question of law. We can not agree with such contention. 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.” This doctrine has been re-affirmed by this court in numerous later cases. (Slack v. Harris, 200 Ill. 96; Chicago and Eastern Illinois Railroad Co. v. Driscoll, 207 id. 9; Consolidated Coal Co. v. Fleischbein, 207 id. 593; Illinois Southern Railway Co. v. Marshall, 210 id. 562.) In our opinion the case at bar is controlled on this question by the rule laid down in the foregoing authorities. Plaintiff in error complains of improper and prejudicial remarks made by counsel for defendant in error during the trial, but upon examination it appears that the court sustained objections to all that was improper in this respect, and there is no ruling of the court upon this branch of the case that is complained of. We have carefully examined all of the objectionable statements of counsel, and we find nothing that would warrant us in reversing this judgment. There are no other errors insisted upon in plaintiff in error’s brief. The judgment of the Appellate Court for the Second District is affirmed. Judgment affirmed.