Chicago & W. I. R. R. v. Massig

Opinion of the Court, Gary, J. The only argument by which this judgment could be excused is in the concluding paragraph of the brief of the appellee: “ It may cause a little irritation to this Avealthy corporation to pay it, yet, upon the other hand, it ivill enable the poor crippled man to exist.” That is an argument of which we have felt the force heretofore. Goss v. Suelau, 35 Ill. App. 103. One Elling was “hostler” for the appellant at a roundhouse, his duty being to care for locomotives at the roundhouse, and run them in and out of it, and the appellee Avas his “ helper.” Elling ran a locomotive upon the foot of the appellee while he stood with it upon or inside one rail. The planking between the rails, it is alleged, was too high. The back of appellee was turned toward the locomotive. Whether the condition of the planking contributed to the injury to the appellee, is probably wholly conjectural; but be that as it may, he had worked there two years, wanting a month, and thinks it was in the same condition all the time. He was no boy, but a man upward of thirty years of age. His knowledge of the condition of the planking prevents any complaint by him on that score. U. S. Rolling Stock v. Chadwick, 35 Ill. App. 474. The appellee and Elling were fellow-servants. Abend v. Terre Haute, etc., R. R., 111 Ill. 202: Chicago & E. I. R. R. v. Geary, 110 Ill. 383. And the appellee was not injured in consequence of any improper exercise of the authority which Elling had, so as to bring the appellee within the doctrine of the May case. Chicago & Alton R. R. v. May, 108 Ill. 288. If Davis v. New York, N. H. & H. R. R., 34 N. E. Rep. 1070, be at all applicable to, or parallel with this case, it is no authority here, being decided under a Massachusetts statute. It is not material to inquire whether Elling was in any particular negligent, though, if it were possible to conceive that Elling had been injured by the appellee being in the way of the locomotive, it would seem that he would have had more ground to complain of the conduct of the appellee, than the appellee has now to complain of the conduct of Elling. The judgment is reversed and the cause remanded.