Lengyel v. Western Steel Car & Foundry Co.

Mr. Presiding Justice Holdom delivered the opinion of the court. The declaration is drafted upon the theory that Socco as vice-principal negligently gave an order which resulted in plaintiff’s injuries; that plaintiff was in the exercise of due care and was not informed of the hazards he encountered, which Socco knew or ought to have known in the exercise of due care. When plaintiff was injured he was engaged about his usual duties within the terms of his employment. He had coupled cars for months previously, although not the crane car in question. But as one of the crane crew he was always liable to be called upon to perform that duty. The dangers which he encountered were, in the exercise of due and proper care, open and obvious to him. There was nothing intricate or complicated about the appliances which he handled. The boom of the crane and its position and the overhanging of the boiler were in plain sight. That the draw-bar needed to be elevated about six inches above the' level of the crane car for insertion into the draw-head of the gondola car, was assumedly known to plaintiff ; that he must stoop down to do so to avoid the overhanging boiler, was equally plain. The proximity of the water tank to the track was -likewise apparent. In the position which plaintiff was in, his being injured was unavoidable if for any reason he failed to make the coupling when the cars came together and did not keep his head below the point of contact. Such peril was necessarily encountered and was obvious to all engaged in such work. Knowledge of such danger is imputable to him from the nature of his employment and the experience which he undeniably had in and about the crane car and in the discharge of kindred' duties during the time of his service with defendant. The danger was incident to the business and employment of plaintiff, and defendant is not liable if the danger was open alike to the observation of both. Christiansen v. Graver, 223 Ill. 142; I. B. & W. R. R. Co. v. Flanigan, 77 ibid. 365. In this case there is no claim that either of the cars or any adjunct used in their operation were defective or out of repair. Nor is it contended that the accident and resulting injury are attributable thereto. Plaintiff was injured while eng’aged in coupling cars. He had coupled cars many times before as an incident of his employment—if not the cars in question, admittedly other cars of defendant. Notwithstanding the crane car may have, in some of its parts, been different from others theretofore coupled by plaintiff, there was nothing that was different which was concealed. The difference was not only plainly visible, but was known to plaintiff. No duty rested on defendant in these circumstances to warn plaintiff of dangers so obvious; for as said in Whitcomb v. Standard Oil Co., 55 N. E. Rep. 440, “It is not negligence on the part of a railroad company to fail to warn an inexperienced employe of the greater danger incident to coupling cars that are supplied with dead-woods or bufférs than cars having an ordinary device. Such increased dangers are obvious and incident to the service.” Primarily it is the province of the jury to decide as a question of fact, whether the relation of fellow-servant existed, and such is the course of procedure under many decisions of our Supreme Court. Still there are cases where, under the undisputed evidence in the record, the question, of whether the relation of fellow-servant existed becomes one of law for the court. Such is the case at bar, regardless of the fact whether plaintiff, in what he did, was acting under the order or direction of Socco. Even conceding that the order given by Socco to plaintiff to go between the cars and couple them together was given by him as foreman, and that on that occasion Socco also gave the order to the engineer to move the car, and that the doctrine of assumed risk has no application, still, as a matter of law, Socco and plaintiff were fellow-servants. Crane v. Hogan, 228 Ill. 338, was a case very similar to the facts relating to the question of fellow-servant to the case at bar. In that case the court reversed the judgment of this court affirming a judgment in Hogan’s favor—131 Ill. App. 314—because the trial court refused to instruct a verdict for Crane. In that case, as in this, the plaintiff was a laborer, being, at the time of the injury, engaged in work that he was accustomed to do. He had been unloading cars, incidental to which he was attempting to remove an iron plate from one of the unloaded cars which had been used to facilitate the shoveling of sand from the ends of the car. While so removing the plate and in the act of handing it out of the car to another laborer, the foreman called out, “All right, Bill,” the switch-man threw the switch and the switch engine backed in, bumped the car, causing the plate to come in contact with the car door, catching Hogan’s finger and severing it. Commenting on these facts the court say: “The evidence also established the relation of fellow servant between the men who were handling the switch engine and the plaintiff. The duties of the plaintiff and the other laborers with him, and the switchman and engineer, were such as to bring them into habitual association so that they might exercise a mutual influence upon each other promotive of proper care and caution, and they were therefore fellow servants. Chicago & Eastern Illinois Railroad Company v. Geary, 110 Ill. 383; Abend v. Terre Haute & Indianapolis Railroad Co., 111 id. 202; World’s Columbian Exposition v. Lehigh, 196 id. 612; Chicago City Ry. Co. v. Leach, 208 id. 198. They worked together in the same yard for a common purpose, and the bringing in and taking out of cars, loading, unloading, weighing and switching brought them into habitual association in the performance of their duties.” By parity of reason it logically follows that the crew of the crane car, working together as they did all the time, were necessarily habitually associated together in the discharge of their duties and were fellow-servants of each other, working for a common master, engaged in forwarding the same kind and character of work, to which their mutual energies were directed. Socco and plaintiff were laborers, working together all the time in the same character of work, and their association in such work was habitual. They were so engaged at the time of the accident, at which time, and all the time preceding, while they were part of the crane car crew, they were fellow servants, So far as any act of Socco’s contributed to the injury of plaintiff, it was the act of a fellow-servant, for which there could be no recovery. The correctness of the rulings of the court upon the evidence or in the giving or refusing of instructions are of no consequence in view of the conclusions to which we have arrived on the other matters assigned for error. Nor is it necessary to consider whether such errors, if any, were of such a nature that the judgment ought to be reversed on account of them. The judgment of the Superior Court is reversed, Reversed. Mb. Justice Bakes, dissenting.