Illinois Central Railroad v. Abrams

Whitfield, C. J., delivered the opinion of the court. The declaration in this cause is rather a peculiar one. It seems chiefly to be a declaration framed on the ground that the defendant is liable because it failed to furnish the plaintiff a safe place in which to work; but it contains, also, isolated and-scattered clauses in which it characterizes Eaton as “the superior officer entitled to control and direct the services” of the carpenter gang. And these clauses seem to be some sort of an attempt, in rather an obscure fashion, to hold the defendant liable under sec. 193 of the constitution of 1890 and .§ 3559, Code 1892. And here it is to be noted that the declaration contains only one count. It is not a case of a declaration stating a cause of action in one count one way, and in another count another way. It is the case of a declaration which'states the cause of action in one count two ways, the grounds of liability being also inconsistent with each other. Section 193 of the Constitution was not needed to enforce a common-law liability based on the failure of the defendant to furnish a safe place in which to work; it was adopted, as we have heretofore pointed out, to abrogate the absurdities of the common-law.fellow-servant rule —a wholly distinct matter from that of liability arising out of failure to furnish a safe place in which to work. The one relates to the liability of the master; the fellow-servant rule was used to defeat the liability of the master on the ground that not the master, but a fellow-servant, was liable. But here is a declaration with but one count embracing two wholly independent grounds of liability. This sort of pleading has been declared indefensible in the recent case of So. Ry. Co. v. Bunnell (Ala.), 36 South, 382. But this is not all. It is manifested from the whole record, and the briefs of counsel, that the case was tried in the -court below chiefly on the ground of liability under sec. 193 of the constitution, though both grounds of liability are shown by the record to have been presented; liability under sec. 193 of the constitution, however, having been presented only on the part of [464] the plaintiff. The court below gave instructions for both sides —fair and correct instructions on the whole — as to the common-law liability; but it at the same time, curiously enough, gave the plaintiff one instruction which was, in effect, a peremptory instruction on defendant’s liability under sec. 193 of the constitution, whilst at the same time refusing (we do not now say whether correctly or not as to the true construction of said sec. 193) all instructions asked by the defendant on this ground of liability. When the case gets to this court we find two elaborate arguments made by two of the counsel representing the appellee, resting their case on liability under sec. 193 of the constitution, and another able argument by another counsel for appellee, resting the cause on the common-law ground indicated. If the cause had been rested on the common-law ground of liability, and the action had proceeded on that theory throughout, below and here, the plaintiff might have been entitled to a judgment, unless this case falls within the principle of the “scaffold cases” pressed on us by appellant. Whether this case is within that principle we leave an open question for the present. But in view of the peculiar character of the declaration in this case, the manifest course which the trial took in the court below, and the complete change of front in this court, it would, it seems to us, be a manifest injustice to affirm a judgment thus obtained. It is impossible to know to which instructions to refer the verdict. It is not a case for the application of the principle that the right result has been reached without reversible error having been committed. Reversible error has been committed, plainly and flagrantly, in putting, in a declaration with but one count, two antagonistic causes of action, and in respect' also of the course pursued in giving instructions as to both these antagonistic causes of action under this peculiar declaration. Reversed and remanded.