East St. Louis Connecting Railway Co. v. Meeker

Mr. Cheer Justice Hand delivered the opinion of the court: It is first contended that neither of the counts of the declaration upon which the case was submitted to the jury is sufficient to sustain a judgment in favor of the appellee, as it is said no facts are stated in either of said counts from the existence of which the law will imply a duty on the part of appellant to protect the appellee from the injury of which he complains. In McAndrews v. Chicago, Lake Shore and Eastern Railway Co. 222 Ill. 232, it was said, in- an action on the case to recover for a personal injury three facts must be made to appear: (1) The existence of a duty on the part of the defendant to protect the plaintiff from the injury of which he complains; (2) a failure of the defendant to perform that duty; and (3) an injury to the plaintiff resulting from such failure. From an examination of the averments of the first and second counts of the declaration as they appear in the statement preceding this opinion, we think it clearly appears that a duty rested upon the appellant to not stop said train until the appellee had made the uncoupling and reached a place of safety, and that a duty rested upon the appellant not to send the appellee into a dangerous place, and while he was executing the order of his foreman, in such place, to increase the danger of the place by suddenly stopping said train. We think, therefore, the counts of the declaration upon which the case was tried sufficient to support the judgment rendered in favor of the appellee. It is next urged that the negligence averred in the first and second counts of the declaration was not the proximate cause of the injury, as it is said the proximate cause of the injury was the negligence of the appellee in attempting to make the uncoupling while upon the coal car instead of from the stirrup of the box-car. It is also said the appellee should be barred of a right of recovery by reason of the fact that he was guilty of contributory negligence, and that he assumed the risk of being injured in the manner in which he was injured. We think these positions of the appellant entirely ignore the fact that there is evidence in this record which tends to show that the usual method of uncoupling when the uncoupling could not be made from the right-hand side of the train was to stop the train and make the uncoupling from the left-hand side, and that the appellee notified the foreman that the lever upon the right-hand side of the coal car would not work and the foreman then ordered him to go upon the other side, and that while he was making the uncoupling upon the left-hand side the foreman gave the engineer the signal to stop the train before the appellee had time to make the uncoupling and assume a place of safety, and that by reason of such signal the train was suddenly stopped and the car upon which the appellee was standing was jerked, and he, by reason of that fact, was thrown from the car and injured. The questions of proximate cause, contributory negligence and assumed risk usually are questions of fact to be determined by the jury, and in this case, in view of the evidence, we think those questions were properly left to the jury, and that this court cannot say, as a matter of law, that the sending of appellee to the left side of the car, and then ordering the train suddenly stopped, was not the proximate cause of the injury, or that the appellee, by attempting to uncouple the car while standing upon the coal car, was guilty of such contributory negligence as to defeat a recovery, or that he assumed the risk of being injured in the manner in which he was injured when he entered the employ of the appellant, as the cause of his injury was the result of the improper order of the foreman in ordering the appellee to “hip over,” and then ordering the train to be suddenly stopped before he had time to make the uncoupling from the' left-hand side and regain a place-of safety. We think, therefore, the court did not err in declining to take the case from the jury for those reasons. It is next urged that appellee and the foreman, Dwyer, were fellow-servants, and that although it be conceded that Dwyer was guilty of the negligence which caused the injury of appellee in signaling the engineer to stop the train before appellee had time to make the uncoupling, there can be no recovery. This contention of appellant ignores the negligence averred in the second count of the declaration, which is said to consist of the action of Dwyer in giving a negligent order to the appellee to “hip over,” in disregard of the established custom in appellant’s yard to stop the train when an uncoupling was to be made from the left side of the car. The question whether the servants of the common master are fellow-servants is usually a question of fact, and where, as here, the master has conferred upon a member of a class of workmen carrying on a particular branch of his business, authority to control or direct the movements of the men under his charge, while in the exercise of such authority the relation of fellow-servants does not exist. (Chicago and Alton Railroad Co. v. May, 108 Ill. 288.) In Chicago, Rock Island and Pacific Railway Co. v. Strong, 228 Ill. 281, the foreman of a switching crew and a switchman were held not to be fellow-servants; and in Chicago and Eastern Illinois Railroad Co. v. Driscoll, 207 Ill. 9, it was held whether an assistant yard-master, who was acting as vice-principal of the railroad company, was a fellow-servant of the members of a switching crew in giving a signal to the crew to move a train of cars was a question of fact for the jury. The trial court, we think, properly submitted the question of whether Dwyer and appellee were fellow-servants to the jury. It is also insisted that there is a material variance between the declaration and the proofs in this: that the counts of the declaration upon which the case was tried averred that the appellee was injured while he was upon the left side of the "coal car uncoupling the box-car therefrom, while the evidence showed he was upon the north end of the coal car. The real contention of the appellant is, not that the appellee should have been upon the outside of the left side of the coal car, but that he should have been in the stirrup upon the left side of the box-car in front of the coal car at the time he attempted to malee the uncoupling. The undisputed evidence is, that in making an uncoupling the pin-puller remains upon the car attached to the train from which the car is cut, otherwise he'would be carried away with the car cut from the train. We think, therefore, the jury were justified in finding, from the evidence, that when Dwyer ordered appellee to “hip over,”" he meant that he should get on to the coal car and pull the pin with the lever on the left side of the box-car, leaving it to appellee to select the place upon the coal car where he would stand while in the act of pulling the pin, as there was no stirrup and handle upon the left side of the north end of the coal car; and that the language used in the first and second counts of the declaration does not signify that appellee was upon the outside of the left side of the coal car when he attempted to pull the pin and uncouple the box-car, but that he was upon the left side of the car, which language would as well apply to the left side of the coal car inside the car, as to the left side of the coal car outside the car. We do not think there was any material variance between the declaration and the proofs. It is finally urged that the court erred in giving to the jury appellee’s third instruction and in modifying two and in refusing to give one of appellant’s instructions, and that the court erred in admitting evidence on behalf of the appellee and in rejecting evidence on behalf of appellant. We have examined these contentions and do not think the court committed reversible error in instructing the jury or in ruling upon the evidence. The appellee’s third instruction announced the rule which should govern the jury in fixing the amount of appellee’s damages in case the jury found in his favor, and is not subject to the criticism that they were not to be confined to the evidence. The modified instructions did not change the rules of law announced therein, but only fended to bring them into harmony with the entire series of instructions offered upon behalf of the appellant, and the instruction refused was covered by other instructions given to the jury, and the rulings upon the evidence were upon immaterial matters which in no way could have affected the result of the suit. The law governing this case is well settled, the only difficulty being its application to the facts in proof. There was but little opportunity for controversy over the facts in the trial court, and the facts and the inferences to be drawn therefrom having been found by the jury in favor of the appellee, and the findings of the jury having been approved by the trial and Appellate Courts, this court is powerless "to disturb such findings. The judgment of the Appellate Court will therefore be affirmed. Judgment affirmed.