West Chicago Street Railroad v. Dwyer , 162 Ill. 482 ( 1896 )

Mr. Justice Carter

delivered the opinion of the court:

The foregoing, from the opinion of the Appellate Court delivered by Mr. Justice Shepard, contains a full and clear statement of this case, and as all questions of fact have been finally settled by the judgment of that court, and as the principal questions of law relating to the instructions raised by counsel in this court have heretofore been determined by this court in other cases, this appeal may be disposed of within narrow limits.

But two points are made .in this court by appellant. First, that the trial court erred in refusing to give to the jury the following instruction: “The jury are instructed, as a matter of law, that where a party has been injured for the want of ordinary care, such as a reasonable or prudent person would have exercised under the same circumstances, he cannot recover unless the injury is wantonly and willfully inflicted. And so, if the jury believe, from all the evidence in this cause, (there being no proof or claim herein of wanton or willful injury,) that' the plaintiff did not exercise ordinary care at the time of sustaining the injury complained of, then they shall find for the defendant;” second, that the court instructed the jury erroneously upon the doctrine relating to vice-principals.

As to the first question, it is sufficient to say that the substance of the refused instruction was fully contained in others given at the request of the defendant. By the fifth instruction the jury were told that the plaintiff could not recover unless it appeared, from a preponderance of the evidence, that the plaifitiff exercised reasonable and ordinary care for his own safety, and the tenth, also given, was as follows:

10. “The jury are instructed, as a matter of law, that an employee himself must use due care and caution to avoid injury; and if he voluntarily exposes himself to any danger that he knew, or by reasonable attention or the exercise of ordinary prudence might have known, he thereby assumes all risks, and cannot recover for any injury resulting from his own acts.”

The following instructions were also given:

14. “The court instructs the jury that it was the duty of the plaintiff, before starting the car, to examine those parts of the grip-car which appertain to the grip and brakes, and if he failed to do so, and his failure directly contributed to the injury, he cannot recover for any injury occasioned to him because of any defect in the grip, brakes or appurtenances thereof.

15. “If the plaintiff, by the use of ordinary care, could have discovered that the wrecking crew had not properly repaired the car, and if he failed to use such care, and that his failure so to do contributed directly to the injury, he cannot recover, and the burden of proving the use of such care is on the plaintiff.”

Why should complaint be made because the court refused to multiply instructions on the same point ?

As to the second point, it is claimed the following instruction, which was given on the court’s own motion, was erroneous:

“You are also instructed, that when an injury results to a servant from an order improperly given or act negligently done, and the person who gives the order or does the act is in the performance of a duty the breach of which by the master, in person, would create a liability, and he is clothed with apparent authority in that respect, and the order given or act done is within the scope of the apparent authority, the master is responsible in damages to the injured servant, if the injured servant is in the exercise of due care and caution for his own safety. It is immaterial whether the person exercising the authority was known as a foreman or by any other title, if he is clothed with apparent authority to direct and command, and the injured servant in good faith obeys and performs, the person so exercising such authority is not, as to the person injured, a fellow-servant, in the sense that the common master is relieved of responsibility for injuries resulting from his imprudent conduct or negligent act.”

And in the same connection it is claimed that the court erred in modifying, and giving as modified, the sixteenth instruction asked by the defendant. This is the instruction, with the modification in italics:

16. “The jury are instructed, as a matter of law, that even if they believe, from the evidence, that the sliding bar was down on the left side of the car at the east end of the tunnel, and if they further believe, from the evidence, that the same sliding-bar was down at the time the" plaintiff was injured, and that such sliding-bar being out of repair was the cause of the plaintiff’s injuries, yet if the jury further believe, from the evidence, that the plaintiff, in the exercise of ordinary care, could have known, at the east end of the tunnel, that the sliding-bar in question was not repaired, then the court instructs the jury, as a matter of law, that the plaintiff assumed such peril and risks, and cannot recover in this case, unless you further believe, from the evidence, that the plaintiff proceeded, with the car in obedience to the orders of a superior who was authorized to give orders in behalf of defendant, and that the danger was not of such a nature as to threaten immediate injury, and that a reasonably prudent man in the position of plaintiff would be justified in presuming that by the exercise of extraordinary care and caution he might proceed with safety, and that the plaintiff exercised that degree of care commensurate with the probable danger. What the facts are in these as in all other respects you must decide from a fair preponderance of all the evidence.”

Counsel’s criticism may be best stated in their own language, thus: “We contend, * * * as applied to the facts in this case, that plaintiff’s instruction number 6, and defendant’s sixteenth instruction as modified, were manifestly erroneous, and calculated to mislead the jury as to the elements necessary to constitute a superior officer or vice-principal. Instruction 6, which was given on behalf of the plaintiff,- charges that ‘it is immaterial whether the person exercising the authority was known as a foreman or by any other title, if he is clothed with apparent authority to direct and command.’ This was manifestly unfair to the defendant. One may be clothed with a limited or special authority, and yet, if the negligence with which it is sought to charge the master did not in any way arise out of or result from the performance of his particular authority, the master will not be liable. In this case we have seen that Smith was, in one sense, the superior of everybody. In the spacing out of the cars going westward through the tunnel he had unquestioned authority over these gripmen, but he had nothing whatever to do with the condition of this grip, —the active force in this accident.”

We do not think these instructions are open to the criticism made. If, in accordance with the meaning of the instruction, Smith was clothed by the defendant with apparent authority over the plaintiff in the respect mentioned, then he was not “clothed with a limited or special authority,” as supposed by counsel, the exercise of which in no way operated to cause the injury. In considering these instructions it is proper to notice that the court, at defendant’s request, also instructed the jury as follows:

11. “The jury must not presume that Smith, the starter, was the superior over the plaintiff. Unless they are satisfied, from a preponderance of the testimony, that Smith was such superior they must conclude he was not.”

12. “The plaintiff cannot recover in this case on the ground that the injury to him was caused by the negligence of Smith, the starter, unless the jury believe, from the evidence, that the plaintiff and the said Smith were not fellow-servants of the defendant, the West Chicago Street Railroad Company. Fellow-servants are servants of the same master engaged in the same line of the master’s business, and who are habitually associated with each other in their usual duties in such a way that they can exercise an influence upon each other promotive of proper caution.”

Taken as a series the instructions properly directed jury as to the law on this branch of the case. It was a question of fact for the jury whether or not Smith was a fellow-servant with the plaintiff and acting as such, or whether he stood in the relation of the representative of the common master, clothed with authority to direct and command the plaintiff in respect to the circumstances that combined to cause the injury, in view of the instructions of the court defining to the jury the meaning, in law, of those terms. This court has had occasion in several cases to consider the general doctrine announced in these instructions, and which, in the main, we do not understand counsel to question. Without extending this opinion further in its discussion, reference is made to the following cases: Chicago Anderson Pressed Brick Co. v. Sobkowiak, 148 Ill. 573; Chicago and Alton Railroad Co. v. May, 108 id. 288; Mobile and Ohio Railroad Co. v. Massey, 152 id. 144; Chicago and Eastern Illinois Railroad Co. v. Kneirim, id. 458; Wenona Coal Co. v. Holmquist, id. 581; Mobile and Ohio Railroad Co. v. Godfrey, 155 id. 78; Pullman Palace Car Co. v. Laack, 143 id. 242. See, also, Chicago, Milwaukee and St. Paul Railway Co. v. Ross, 112 U. S. 377.

Finding no error in the record the judgment of the Appellate Court will be affirmed.

Judgment affirmed_