North Chicago Rolling Mills Co. v. Benson

McAllister, J. The fact was established by undisputed testimony, that • the deceased at the time of his injury, and for some time prior thereto, had been employed by the defendant at his own solicitation, in the capacity of a switch-man, in the defendant’s yard, whose duties, under that engagement, he was performing at the time of the accident. That fact was utterly subversive of the only cause of action set out in the declaration, and plaintiff’s second and third instructions to the jury should not have been given. The deceased was seventeen years of age in the May next before his death. His contract with the defendant to work for defendant in the cajiaeity of a switchman, whether express or implied, was not void, but only voidable. While engaged in coupling the freight cars he was clearly a fellow servant with the other servants of defendant, who had the care and management of that train, notwithstanding his infancy; Gartland v. Toledo, etc., Ry. Co., 67 Ill. 498; King v. The Boston, etc., R. R., 9 Cush. 112. There is no averment in the declaration that the duties of switchman at that place were specially hazardous, or that the act of coupling cars, under the circumstances, was necessarily and ordinarily dangerous, or that the yardmaster or superintendent failed to notify deceased and inform him of the dangers to which he would be subject, and that deceased from his youth and inexperience was unacquainted with them. Coombs v. N. Bedford Cordage Co., 102 Mass. 575-595. We are of opinion that the verdict was unsupported by the evidence; that said instructions to the jury were erroneous and that the judgment should be reversed and the cause remanded. Judgment reversed.