Daniels v. Union Pacific Railway Co.

Blackbubn, J. This is a suit by a brakeman, an employe of the defendant company, for an injury to him while in the line of his duty on a train that was wrecked. He was severely injured, and permanently in one leg and one of his shoulders, so as to be unable to perform manual labor. The evidence tends to show that the train on which the plaintiff was at work as brakeman was wrecked by a broken wheel; that [358] there was an old crack in the wheel, which could have been seen by proper inspection; and the question was fairly submitted to the jury, and they found that this was negligence in the defendant company. We think the evidence abundantly supports this finding. It was the duty of the company to furnish reasonably safe cars for the running trains, and to have them inspected with reasonable care at proper intervals; and, if an employee was injured by a neglect to perform this duty, the company is liable to him for the damage he sustained. On this branch of the subject we see no error. The instructions, as we think, state well and fairly the law of the case, and no point is made on them in the brief of appellant’s counsel; but the contention of the defendant company is that, if there was negligence, it was the negligence of the car-inspector, and he was the fellow servant of the respondent. If this contention is true, the respondent cannot recover, and this case should be reversed. As to who are fellow servants, there have been a great many and great variety of decisions, and it would serve no useful purpose to review them. However various, the decisions agreS that the weight of authority is that, in order to constitute servants of one master fellow servants, within the rule respondeat superior, they must be engaged in the same line of work, be under the control of the same foreman, be employed and discharged by the same head of the department in which they work; that they labor together in such personal relations that they can exercise an influence upon each other promotive of proper caution in respect of their mutual safety; that they shall be at the time of the injury directly co-operating with each other in the particular business in hand, or that their mutual duties shall bring them into habitual conassociation, as that they may exercise an influence upon each other promotive of proper caution, and to be so situated in their labor, to some extent, to supervise and watch the conduct of each other as to skill, diligence and carefulness. Railroad Co. v. Kelly, 127 Ill. 637, 21 N. E. Rep. 203. The evidence in this case clearly shows that the inspector of cars is not in the same line of work with the brakeman. He has nothing to do [359] with tbe running of trains; is not under tbe control of tbe •conductor, but reports to, is appointed by, and may be discharged by, and is under tbe direction of, tbe foreman of tbe repair shops; has no conassociation with, and is rarely seen by, tbe brakeman on tbe train, unless casually noticed by him when tbe train is stopped. They have no work in common; are not so associated in their labor as to be able to-act together in a way promotive of their mutual safety. We cannot say, therefore, as a matter of law, that tbe car inspector, in this case, was a fellow servant of tbe respondent when tbe accident occurred. It is contended, also, by appellant that the damages are excessive. On that point tbe jury were properly instructed. It is peculiarly tbe province of the jury to estimate tbe damages in this class of cases; and they doubtless took into consideration, what they were legally authorized to do, that the respondent was lamed and deformed in one leg for life, and permanently disabled in one shoulder, so that be was wholly rendered unable to perform manual labor; that be was rendered entirely helpless by tbe accident; that be was neglected for more than two days before bis wounds were dressed; and that be suffered unnecessarily in mind and body from bis injury. The damages are seemingly heavy, but, in view of tbe facts of tbe case, we do not think they are so excessive as to justify a renewal. Therefore, we cannot say that the jury were influenced by passion or prejudice in assessing the damages at the amount they did. We think, therefore, the judgment should be affirmed. Judgment affirmed. Hendekson, J., and Anderson, J., concurred.