Chicago, Rock Island & Pacific Railroad v. Henry

Pillsbury, J. Hnder the decision in the case of the Northwestern Railway v. Moranda, 93 Ill. 302, there can be no doubt that the servants of the company, whose duty it was to load the car, were not fellow-servants of the deceased engaged in the same line of employment, and it is equally clear that the engineer in charge of the yard-engine in, the Bock Island yard, while engaged in switching cars for deceased to couple with others, was such fellow-servant. It therefore follows that if the death of appellee’s intestate was caused by the negligence of the former in loading the car, lie being at the time in the exercise of ordinary care upon his part to avoid injury, the company would be liable — otherwise, if caused by the negligence of the latter. The issue was thus presented before the jury, and was clearly defined in the evidence, and the testimony, as it appears in the record, is quite conflicting upon this question; and as the cause must be submitted to another jury, we deem it unnecessary to comment upon the weight of the evidence. It is an error fatal to this judgment that the court permitted the plaintiff to introduce testimony showing the poverty of the plaintiff and her children, and that they had no means of support save the labor of deceased. The judgment in Moranda’s case, supra, was reversed for this error alone, and in that case the cases of Chicago v. O’Brennan, 65 Ill. 160, and Railway Co. v. Powers, 74 Ill. 343, were cited with approval, as holding the same rule. We are also of the opinion that the third instruction asked by the appellant should have been given to the jury without modification, as it but calls the attention of the jury to the well settled rule that negligence of the servants of appellant, not averred in the declaration to be the cause of the injury, will not sustain a recovery under the pleadings. Complaint is also made that the court, over the objection of the defendant, permitted the counsel for plaintiff to comment upon the poverty of the next of kin, and the loss of their means of support through the negligence of defendant in causing the death of their protector. Upon another trial, when the objectionable; testimony above mentioned will be excluded, there will be no basis in the record for such remarks of counsel, and the high professional character of counsel engaged in this cause forbids us to assume that they will not confine themselves to the record in their argument to the jury. For the reasons given the judgment must be reversed and the cause remanded. Beversed and remanded.