Mobile & Ohio Railroad v. Massey

Mr. Justice Sample delivered the opinion of the Court. There are three cases pending in this court, wherein judgment was rendered against appellant, on substantially the same state of facts, about which there was no dispute. They raise the legal question of the proper application of the doctrine of fellow-servants. If that doctrine applies to the facts, the defense is full and complete; if not, there is, no defense on the merits. The facts show that Bathwell, the conductor, had entire charge of the movements of the construction train, and also of the workmen, whom he hired and discharged at pleasure. His relation, there-6 fore, to that crew of workmen was that of master in respect to every duty they owed the company. He ordered them to get on and off the train to work, when, where, and as he desired; disobedience was at the peril of discharge. His duty was to read, compare with the engineer, and personally know the contents of telegraphic orders sent directing the movement of his train. It was, therefore, gross negligence on his part to order the crew of workmen aboard his train and run it in a direction which he should have known would almost inevitably cause a collision. It can not be asserted, on his behalf at least, that his failure to perform a plain and exigent duty, which, if done, would have avoided the collision and the resulting injuries, was not negligence. It can be, however, on behalf of the company, if at the time of the collision his relation to the laborers who were injured, was that of a fellow-servant. While these men were at work in the cut, or dirt-pit, had Bathwell, with the relation he sustained to them, been guilty of a like degree of negligence in giving an improper order—when he should have known the proper order to give—which resulted in their injury, the company would clearly be liable, for the reason his orders, in such case, would be essentially the orders of the employer. C., B. & Q. R. R. Co. v. McLellan, Admr., 84 Ill. 109, at p. 116. He would not, in such case, have been a fellow-servant. As is said in the May case, 108 Ill. 299, and Hawk case, 121 Ill. 263: “ When a railway company confers authority upon one of its employes to take charge and control of a gang of men, in carrying on some particular branch of its business, such employe * * * is the direct representative of the company itself. * * * When he gives an order within the scope of his authority, if not manifestly unreasonable, those under his charge are bound to obey, at the peril of losing their situations, and such commands are in contemplation of law, the commands of the company, and hence it is held responsible for the consequences.” It is there further said : “ The fact that he may have an immediate superior standing between him and the company, makes no difference.” See also Wombacher case, 134 Ill. pp. 63, 64, and cases there cited. The above presents the uniform doctrine of this State where the injury results from the negligence of an employe standing in the relation of a master to those injured. It being clear that Bath well stood in that relation to the men injured while at their work in the dirt-pit, did that relation change after they had ceased such work at his command, and were aboard the cars, by his order, of a train being negligently run, by his direction, to almost certain destruction ? In the case of C., B. & Q. R. R. Co. v. Blank, 24 Ill. App. 438, where the conductor, Wm. Henry, who had like control over the construction train and its gang of twenty-seven men as in the case under consideration, gave an improper order as to the operation of the train while the men were aboard, whereby two of them were thrown from the cars, run over and killed, the company was held liable under the authorities above referred to. The company did not take an appeal. This case determines the law of the relation is not changed by the fact that the men are aboard the cars, when an injury results from a negligent order given by such superior in the operation of the train. Ho reason is perceived why it should. When, the relation of an employe is determined to be that of master, and the servant’s injury is the direct result of such employe’s negligence, as the proximate cause, the principal is liable. We know of no exception to this rule. Wombacher case, supra. It is no more of a defense to set up that Rathwell, the conductor and vice-principal, was misled into giving the negligent order by Cutler, the engineer, than it would have been in the May and Hawk cases, supra, that Frick and Button, who were vice-principals, were misinformed by some subordinate. Rathwell’s ignorance of that which it was his duty to know, is no defense. If or is it any defense that Rathwell was, at the time of the collision, operating the train in direct violation of a specific order of the company. Had Rathwell, against the express order of his principal, negligently worked his crew under an overhanging and dangerous bank, which fact he should have known, but was not known to the men, which bank fell upon and injured them, the company would have been clearly liable. As is said in the May case, the fact he had an immediate superior, who had the right to, or even did, command him, makes no difference, when he stands in the relation of master to the men injured by his negligence. The appellant relies chiefly on the Abend case, 111 Ill. 202, as holding that Rathwell and the men injnred, were fellow-servants. In that case, it will be observed the. engineer, who is also said to have been conductor, whose negligence caused the injury to the workman riding on the engine, in violation of known rules of the company, did not stand in the relation of master. The same is true of the McDonald case, 21 Ill. App. 409, and of all the cases cited in the Abend case. We do not deem it necessary to review cases cited from other States, for we understand our Supreme Court holds, that if one servant is injured by the negligence of another, who at the time stands in the relation of master, the company is liable. The conclusion reached being adverse to appellant, it is not deemed necessary to consider points raised as to the introduction of evidence, or the giving and refusing instructions, which do not affect the quantum of damages. The judgment is affirmed.