Foster v. T. A. Cummings Foundry Co.

Mr. Justice McSurely delivered the opinion of the court. It has been repeatedly stated that “those are fellow-servants who are co-operating, at the time of the injury, in the particular business in hand, or whose usual duties are of a nature to bring them into habitual association, or into such relations that they can exercise an influence upon each other promotive of proper caution.” Chicago City Ry. Co. v. Leach, 208 Ill. 198 (205). It has also been repeatedly stated that “the question whether servants of a common master are fellow-servants within the meaning of the law is usually a question of fact. If, however, the facts are not in dispute and all reasonable men would readily agree as to the conclusions which should be drawn from the admitted facts, the question whether the relation of fellow-servants exists in a given case becomes a question of law.” Linguist v. Hodges, 248 Ill. 491 (502). Thus far there is harmony in the decisions on this question. When, however, reasonable minds undertake to agree as to the conclusions which should be drawn from admitted facts, unanimity of opinion frequently ceases. It is clear that each case must be controlled by its peculiar facts. Consequently, opinions on this question in cases involving different situations and circumstances do not give much assistance in the determination of the case at bar. None of the many cases cited by both counsel involves such facts as we now have under consideration, and we can discern no principle or test in these cases which guides us to a conclusion as to whether or not the defendant in error, Foster, and Matuskey were fellow-servants at the time of the accident in question. It is apparent that these men were not co-operating, at the time of the injury, in the particular business in hand. Therefore they do not come within the first branch of the rule. It is contended by plaintiff in error that they were fellow-servants within the second branch of the rule, because their usual duties were such as would necessarily, from time to time, bring them into association. It appears to be the fact that seven or eight times a day Foster would signal to Matuskey to run the crane over to the point where Foster was working, and lift an iron box or ‘ ‘ flask” used by Foster in making molds. This- operation consisted in Foster and his helper attaching hooks running from the hoisting tackle of the crane to the top of the box or flask, and then signaling Matuskey to hoist. This box would then be turned over, and Foster and his helper would disengage the hooks and Foster would then signal to Matuskey to take the crane away. While in a certain sense it might be said that the performance of this- operation seven or eight times' a day was an habitual association of the men in the discharge of their usual duties, we are unable to see how it can be said, as a matter of law, that it appears beyond doubt or dispute that this relation or association between them was so intimate that they must have had an opportunity to exercise a mutual influence upon each other promotive of proper caution. One can readily see that after they had finished the particular work in which they co-operated, the work of each would be wholly apart from and independent of the work of the other. There would be no occasion at this time for either man in the discharge of his duties to have any thought or care concerning the other. The associations between them were such that we are unable to say that all reasonable minds would agree that they could exercise an influence upon each other pro-motive of proper caution. At least there is- reasonable cause for doubt on this question, and we are of the opinion that the defendant in error not only had the right to have this question submitted to the jury, but we are unable to say that the conclusion of the jury in this regard was against the weight of the evidence. There was no error, therefore, in the order of the trial court denying the motion for a new trial, and we see no reason to disturb the verdict and the judgment. The judgment will be affirmed. Affirmed.