Gathman v. City of Chicago

Mr. Justice Hand delivered the opinion of the court: It is first contended that there was a fatal variance between the declaration and the proof in this: that the declaration charged that O’Connor was the employee of the city responsible for the accident which caused the injury of appellee, while the evidence showed that O’Connor was not present at the time of the accident, but that the actual work in raising .the bridge at the time appellee was injured was performed by James O’Brien and James McDonald, who were in the employ of O’Connor and not in the employ of the city. There are two satisfactory answers to this position of the city: First, by the dismissal as to O’Connor he was eliminated from the case, and the declaration thereafter, without amendment, charged the city with the negligent acts which caused the injury to the appellee; and secondly, the proof sustained the averment of the declaration that it was the negligent act of O’Connor which caused the injury. The evidence showed that O’Connor, a saloon-keeper, was regularly appointed by the mayor of the city of Chicago bridge-tender of the VanBuren street bridge; that he did not tend the bridge personally, but employed O’Brien and McDonald to do the work for him, and that James J. Kennedy, under the direction of O’Brien, set the machinery in motion on the occasion when the appellee was injured. The city knew that O’Brien and McDonald were in the employ of O’Connor and were in actual control of the bridge. O’Brien and McDonald, therefore, as to the city, stood in the place of O’Connor, and the negligence of O’Brien in directing Kennedy to raise the bridge at the time of the injury was the negligence of O’Connor, and proof that the negligent order to raise the bridge was given by O’Brien sustained the averment of the declaration that it was the negligence of O’Connor which caused the accident. It is next contended that O’Connor, O’Brien, McDonald and Kennedy were the fellow-servants of the appellee, and that appellee cannot recover for the negligence of O’Con-nor, or persons in his employ, in handling said bridge. The question whether the servants of a common master are fellow-servants is usually a question of fact, and never becomes a question of law unless the facts proven show such relation so clearly to exist that all reasonable minds will readily agree that such is the relation of the servants of the common master to each other. (Duffy v. Kivilin, 195 Ill. 630; Spring Valley Coal Co. v. Patting, 210 id. 342; Missouri Malleable Iron Co. v. Dillon, 206 id. 145.) Here the injured servant was performing service in one department of the city government and was sent by his superior officer to the bridge to make certain measurements, while the servants of the city causing the injury performed service in another department of the city government and were under the control of other superior officers, and the servants of the city handling the bridge had nothing to do with making the measurements which appellee had been directed to make, their duties being to care for and handle the bridge. The appellee and the servants of the city who caused the injury were not, therefore, at the time of the injury co-operating with each other in the particular business of making said measurements or of raising said bridge, but at the time the appellee was injured he was engaged in one employment,—i. e., in making measurements,—while the other servants of the city who caused his injury were engaged in doing an entirely other thing,-—i. e., raising the bridge. The appellee and said servants were not, therefore, necessarily co-operating together at the time appellee was injured. Neither did the line of the employment or the usual duties of the appellee and the servants of the city who operated the bridge necessarily bring the appellee and said servants into habitual association so that they might exercise a mutual influence upon each other promotive of the caution which would protect each other from an injury which might result from the negligence of each other. In Chicago and Alton Railroad Co. v. Hoyt, 122 Ill. 369, on page 374, it was said: “It was said by this court in North Chicago Rolling Mill Co. v. Johnson, 114 Ill. 57, that the servants of the same master, to be co-employees so as to exempt the master from liability on account of injuries sustained by one resulting from the negligence of the other, shall be directly co-operating with each other in a particular business,—i. e., the same line of employment,—or that their usual duties shall bring them into habitual association, so that they may exercise a mutual influence upon each other promotive of proper caution.” We therefore think it clear the court properly submitted the question whether the appellee and the servants of the city who controlled the bridge at the time he was injured were fellow-servants, to the jury as a question of fact. It is also urged that the appellee assumed the risk of being injured by the negligence of the bridge-tenders in prematurely raising the bridge while he was beneath the bridge making the measurements which he had been sent to the bridge to make. The general rule is, a servant only assumes the ordinary risks of the business in which he is employed. In this case, before going beneath the bridge he had an understanding with the servants of the city in charge of the bridge that they would not raise the bridge until he signaled them so to do, and the injury which he subsequently sustained was caused by reason of the fact that said servants violated that understanding and raised the bridge béfore the appellee had signaled them so to do and without notice to the appellee that they were about to raise the bridge. Clearly, the negligence of the servants of the city in charge of the bridge in raising the bridge after they had agreed not to raise it until they had been signaled to raise the same by the appellee was not a risk which the appellee assutned by virtue of his contract of employment with the city. In Illinois Third Vein Coal Co. v. Gioni, 215 Ill. 583, on page 590, it was said: “When a servant enters the employment of the master, the ordinary risks of such employment which he assumes include the negligence of fellow-servants associated with him, but he does not assume the risk of the negligence of employees of the same master who are not fellow-servants with him.” And in Chicago and Eastern Illinois Railroad Co. v. White, 209 Ill. 124, on page 132, it was said: “A servant, however, does not assume the risk of a negligent manner of doing the work by other servants who are not his fellow-servants, unless it is customary to do the work in that manner. The risk of such an act is not one of the usual or ordinary hazards of the employment.” It is also urged that the court erred in instructing the jury that the city was responsible for the negligent acts of the men in charge of the bridge in raising the same without being signaled so to do . by appellee, as it is contended O’Brien, McDonald and Kennedy were not the servants of the city. O’Connor was the regularly appointed representative of the city and in charge of the VanBuren street bridge, and the city was responsible for his negligent acts done in the line of his duty. With the knowledge and consent of the city O’Connor did not personally perform the duties imposed upon him, but the city permitted such duties to be performed by persons employed by O’Connor. When the city permitted O’Connor to employ men to operate the bridge, and the persons employed by him did operate the bridge with the knowledge and the consent of the city, we think it clear the city became liable for the negligent acts of such employees to the same extent that it was liable for the negligent acts of O’Connor, and that it cannot escape liability by reason of the fact that the men in active control of the bridge were paid by O’Connor instead of by the city. Suppose the persons employed by O’Connor operated the bridge in a negligent manner and in consequence of such negligence a person crossing the bridge had been injured; it clearly would not have been a defense to an action brought by such person that the persons in charge of and operating the bridge, with the knowledge and consent of the city, were paid by O’Connor instead of by the city. Our conclusion jis that the city was responsible for the negligent acts of the persons in charge of said bridge, and that the court did not err in so instructing the jury. Other instructions given on behalf of the appellee have been criticised. We think, however, the jury were instructed substantially in accordance with the law. It is finally contended that the city is not liable to the appellee for the injury which he sustained. The bridge forms a part of one of the public streets of the city, and while it is not stationary, like the street of which, when closed, it forms a part, it is as much under the control of the city as the street, and if the servants of the city, in raising or lowering the bridge, injured a person rightfully crossing the bridge or a person upon a boat beneath the bridge, the city would clearly be liable for such injury; and we are unable to see why the city should not be held liable to the appellee, who was lawfully upon the bridge at the time he was injured, for the negligence of the persons who were operating the bridge with the knowledge and consent of the city. Finding no reversible error in this record the judgment of the Appellate Court will be affirmed. Judgment affirmed.