Bennett v. Chicago City Railway Co. , 243 Ill. 420 ( 1909 )

Mr. Justice Carter

delivered the opinion of the court:

This is an action on the case brought by the appellee against appellant in the superior court of Cook county for injuries alleged to have occurred on the afternoon of June 14, 1902. A judgment for appellee was recovered in the trial court, which, on appeal, was affirmed by the Appellate Court, and the record is brought here by appeal for further review.

At the close of appellee’s evidence, and again at the close of all the evidence, appellant requested the court to direct a verdict in its favor as to each of the five counts in the declaration. This last motion was sustained as to the second, fourth and fifth counts and overruled as to the first and third counts, and the case was submitted to the jury on the two last named counts. It is contended that the instructions as to both these counts should have been given because the court should have held, under the facts in this case, as a matter of law, that appellee was a fellow-servant with the person whose negligence caused his injury.

On the date of the accident the appellant was operating double track street railways on Cottage Grove avenue and Sixty-third street, which crossed each other at right angles, Sixty-third street running east and west and Cottage Grove avenue north and south. The cars on Cottage Grove avenue were operated by a cable and ran out of car barns at Thirty-ninth street and Cottage Grove avenue. The employees on that line were under the control and direction of James H. Flynn, as superintendent. The Sixty-third street cars were operated by electricity and were sent from car barns at Sixty-first and State streets, and the employees of this line were under the control and direction of another superintendent than Mr. Flynn. At the time of the accident appellee was conductor on the rear car of a Cottage Grove avenue train consisting of a grip-car and two open passenger cars, the seats of which extended crosswise of the cars. Under the rules of the company it was appellee’s duty to be upon the rear platform at crossings and intersections, so as to observe teams or other obstructions upon the track and avoid collisions or other danger. It was, however, also his duty to look after his passengers, collect fares and give transfers. In order to discharge these duties it was necessary for him to pass from one end of the car to the other on the running-board. Appellee was on the running-board on the west side of his car, collecting fares and giving out transfers, with his face to the car and his back to the west, when the Sixty-third street intersection was being crossed. By the rules of the company the cable trains on Cottage Grove avenue had the right of way at the crossing, and if cars on the two different lines arrived at the crossing at the same time, it was the duty of the motorman on the Sixty-third street car to stop and let the cable train pass. The evidence tends to show that sometimes a Cottage Grove car would find its track near the crossing obstructed by teams or otherwise, and in such case if a trolley car was waiting the gripman on the Cottage Grove avenue car would indicate, by nodding his head to the motorman on the trolley car, that he might cross ahead of the cable car. When an electric car stopped to permit a cable car to clear the crossing the cars would not ordinarily be closer than forty feet to each other. There is no evidence of any communication between the employees on the two car lines, except the occasional indication that might be given by the gripman on the Cottage Grove car to the motorman to pass ahead across the intersection, as stated above. The evidence shows that while the Cottage Grove avenue car on which appellee was conductor was passing over the intersection and going not to exceed two miles per hour, having slowed down to make a stop on the south side of Sixty-third street, an electric car going east on Sixty-third street ran into the Cottage Grove avenue car, injuring appellee severely. The evidence also tends to show that when a short distance from Cottage Grove avenue the motorman made an attempt to stop the trolley car, but the tracks were so greasy and slippery that the car did not respond readily to the brake. There was an' elevated railroad on Sixty-third street, which contributed to keep the tracks greasy and slippery. The motorman applied the brakes, but the wheels kept sliding. He then reversed the power and put sand on the track and made every effort to stop the car, which gradually slowed down but continued moving slowly eastward, running into the last car of the cable train and striking appellee, who was standing on the running-board. On this state of facts were appellee and the motorman on the Sixty-third street car fellow-servants as a matter of law ?

Whether two persons, servants of a common master in a given case, are fellow-servants is a mixed question of law and fact. (Lake Erie and Western Railroad Co. v. Middleton, 142 Ill. 550.) The definition of fellow-servants is a question of law. (Indianapolis and St. Louis Railroad Co. v. Morgenstern, 106 Ill. 216; Hartley v. Chicago and Alton Railroad Co. 197 id. 440.) The question of the relation of fellow-servants is ordinarily one of fact, and only becomes a question of law when there is no dispute with reference to the facts, and the evidence, with all legitimate inferences to be drawn therefrom, is such that all reasonable and intelligent men must reach the same conclusion. (Illinois Southern Railway Co. v. Marshall, 210 Ill. 562; Chicago, Rock Island and Pacific Railway Co. v. Strong, 228 id. 281; Chicago and Eastern Illinois Railroad Co. v. Driscoll, 176 id. 330.) By the decisions in this State the exemption of the master from liability is confined within narrower limits than those usually recognized by other courts. Under the rule as laid down in this State, to create the relation of fellow-servants the servants must be directly co-operating with each other in a particular work at the time of the injury, or their usual duties must be such as to bring them into habitual association so as to afford them the power and opportunity of exercising a mutual .influence upon each other promotive of proper caution. (North Chicago Rolling Mill Co. v. lohnson, 114 Ill. 57.) The reasons for this doctrine were fully discussed and the authorities reviewed by this court in Chicago and Northwestern Railroad Co. v. Moranda, 93 Ill. 302, and that rule has been consistently followed by this court since that time. In that case it was said that the rule of respondeat superior rested upon the consideration of public policy and is founded on the expediency of placing the risk upon those who can best guard against it, and that the liability of the master turned upon the same consideration. In Chicago City Railway Co. v. Leach, 208 Ill. 198, this court said on this subject (p. 205) : “This is the principle underlying the application of the doctrine whether it was adopted on grounds of public policy or because the risk is assumed by the servant in entering the service, and the relation is made to depend upon the existence of association between servants which enables them, better than the employer, to guard against risks or accidents resulting from the negligence of each other.” '

It is not claimed by counsel for appellant that appellee . was a fellow-servant of the motorman on the electric car under the first branch of this rule, but it is insisted that under the second branch the two men were fellow-servants as a matter of law. It is argued that this relationship does not rest upon the personal acquaintance between appellee and the motorman, but upon whether the classes of employees to which they respectively belong are fellow-servants. Under the decisions in this State the relationship of fellow-servants does not. necessarily depend upon personal acquaintanceship alone, or the length of time persons have worked together. (World’s Columbian Exposition v. Lehigh, 196 Ill. 612; Chicago City Railway Co. v. Leach, supra; Chicago and Eastern Illinois Railroad Co. v. White, 209 Ill. 124.) The rule established in this State holding that certain persons are fellow-servants, however, has as its basis, in some measure at least, such personal relation and association between them as to afford an opportunity and power to influence'each other through proper caution, by counsel, advice or example, whether under the first or the second branch of the rule. (Pagels v. Meyer, 193 Ill. 172.) This court in that case said (p. 179) : “Where they are brought together in direct co-operation in the performance of a particular work * * * they have such opportunity and power and are brought within the relation required by the rule. Where their usual duties bring them into habitual association, the association must be sufficiently personal to furnish the same opportunity and power to exercise an influence upon each other promotive of proper caution.”

It is most earnestly urged by appellant that under the reasoning of this court in Chicago City Railway Co. v. Leach, supra, the motormen and conductors on the Sixty-third street line, as a matter of law, were fellow-servants with the gripmen and conductors of the Cottage Grove avenue line under the second branch of this rule, and that therefore the motorman here in question and appellee necessarily were fellow-servants under that branch of the rule. ’

An examination of the authorities shows that it is not always eas}' to define who are to be considered as fellow-servants, within the rule laid down by this court. Doubtful cases may arise in which it will be difficult to say, as a matter of law, whether or not certain persons are fellow-servants. It may be true that there are expressions in the various cases on this subject which, without reference to the special facts in the given case, may seem incapable of being reconciled, but we think there is no real conflict in the decisions, viewed in the light of each particular set of facts. Under the decisions it is not sufficient to constitute two persons fellow-servants simply that they are working for the same master, but they must be brought into such relation, either by directly co-operating in the same-work at the time of the injury or by their usual and habitual duties, that they may exercise an influence upon each other promotive of their mutual safety. In addition to the authorities already cited the following, among many others, sustain this rule: Chicago and Northwestern Railway Co. v. Moronda, 108 Ill. 576; Chicago and Eastern Illinois Railroad Co. v. Geary, 110 id. 383; Abend v. Terre Haute and Indianapolis Railroad Co. Ill id. 202; Chicago and Alton Railroad Co. v. Hoyt, 122 id. 369; Mobile and Ohio Railroad Co. v. Massie, 152 id. 144; Louisville, Evansville and St. Louis Railroad Co. v. Hawthorn, 147 id. 226; Chicago and Alton Railroad Co. v. O’Brien, 155 id. 630; Leeper v. Terre Haute and Indianapolis Railroad Co. 162 id. 215; Chicago and Alton Railroad Co. v. House, 172 id. 601; Meyer v. Illinois Central Railroad Co. 177 id. 591; Duffy v. Kivilin, 195 id. 630; Chicago and Alton Railroad Co. v. Wise, 206 id. 453; Indiana, Illinois and Iowa Railroad Co. v. Otstot, 212 id. 429; Illinois Steel Co. v. Ziemkowski, 220 id. 324.

The facts in this case are readily distinguishable from those in the Leach case, supra. In that case the grip-car and trailer of one servant ran immediately behind the grip-car and trailer of the other servant, and it was the duty of the one servant so to manage his grip-car and trailer as not to run into the train immediately in front of him. The duties of the employees on the two trains were such as to bring them into habitual association, so they would have an opportunity to influence each other by advice and caution. Then, too, they ran out of the same car barn and were under the control and direction of the same superintendent. In this case there was nothing in the rules of ' the company under which the twTo car lines were operated which required the meeting of the cars at this crossing. While such meeting was reasonably to be expected occasionally, when it occurred it was by mere chance and not in accordance with any fixed rule. In other words, the two lines were not operated on a schedule requiring particular trains to connect and exchange passengers at this crossing. It is true, the rules provided that when two trains on these two lines met at Sixty-third street and Cottage Grove atenúe the Cottage Grove avenue cars should usually have the right of way, but the proof showed that sometimes, when trains thus met at the crossing, upon a signal from the Cottage Grove avenue gripman the motorman on the Sixty-third street car would run his car across ahead of the Cottage Grove avenue car. The rules of the company made no provision on this latter point, and it was purely a question of proof as to the practice among the trainmen of the two lines. The trainmen of the two different lines ran out of different barns and were under different superintendents. Even though it be conceded that whether the appellee and the motorman on the Sixty-third street line were fellow-servants depends upon whether the trainmen on the Sixty-third street line, considered as a class, were fellow-servants of the trainmen on the Cottage Grove avenue line, still it could not be held, as a matter of law, that appellee and the motorman were fellow-servants. All reasonable minds would not reach the same conclusion on this question on the facts in this case. That question was therefore one of fact that was properly submitted to the jury.

Appellant further contends that the court, in giving'instructions 8 and g, erred, because these instructions erroneously shifted the burden of proof on the fellow-servant question. We are disposed to think the instructions are not open to this criticism. Furthermore, the jury were correctly instructed as to the burden of proof in other instructions given on behalf of appellant. Taking all the instructions together we do not think the jury were misled on this question.

Appellant .further contends that the court committed error in refusing to direct a verdict in its favor because appellee was guilty of contributory negligence in being on the running-board of the car at the time he was injured. On this record it was a question of fact for the jury whether the circumstances shown excused appellee for being in the position he occupied or whether he was guilty of such negligence as would prevent a recovery.

It is further contended that the court erred in instructing the jury, at the request of appellee, that they might consider the fact that any witness in the case had been or was in the employ of the plaintiff or defendant in determining the weight that ought to be given the testimony of such witness. This instruction was given in Donley v. Dougherty, 174 Ill. 582, and it was there held, on the facts in that case, that the court did not commit substantial or reversible error in so doing. We are disposed to hold that the instruction is not accurate. Under some conditions this court might feel that it was so far misleading as to require a reversal of the judgment, but in the case at bar we think it is obvious that no harm resulted to appellant from its being given. The verdict of the jury is not inconsistent with the hypothesis that everything testified to by appellant’s witnesses is absolutely true.

Appellant also contends that the court committed error in the admission and exclusion of evidence. It is argued that the court erred in refusing to allow appellant to ask appellee whether it would be his duty to report an act of negligence on the part of the gripman, motorman or conductor. If appellant had any rule prescribing such duty the rule would have been better evidence. There was no error in this ruling.

It is also insisted that the court erred in refusing to allow appellant to prove that it was the general custom of conductors to be upon the rear platforms of their cars at the time they were crossing transfer points. Appellant’s rule upon this subject was put in evidence, and the proffered evidence was nothing more than an attempt to show that the conductors customarily obeyed the rule. Such proof would not have added anything to the force of the rule. Had there been any contention that the rule was habitually violated with the knowledge of the company, then such evidence as to custom might have been pertinent.

A motion was made in arrest of judgment, based on the contention that neither of the two counts upon which the cause was submitted to the jury was sufficient to support the judgment. The only objection pointed out to the third count is its omission to aver, in express language, that the servant through whose negligence appellee was injured was not a fellow-servant with him. This count should have so stated. (Schillinger Bros. Co. v. Smith, 225 Ill. 74.) While in this respect the declaration was demurrable, it does not offer any reason for arresting the judgment after verdict. The facts showing the relation of the parties are fully set out in this count, and the issue joined was such as necessarily required, on the trial, proof of these facts. The defect in this count was therefore cured by the verdict. (Cribben v. Callaghan, 156 Ill. 549; Chicago and Alton Railroad Co. v. Swan, 176 id. 424; 1 Chitty's Pl.-7th Am. ed.-722; Chicago and Eastern Illinois Railroad Co. v. Hines, 132 Ill. 161; Sargent Co. v. Baublis, 215 id. 428.) This being so, we do not find it necessary to decide as to the sufficiency of the first count when questioned on motion in arrest of judgment. Where there is an entire verdict on séveral, counts, the verdict will not be set aside because the declaration contains a defective count if there are one or more counts sufficient to sustain a verdict. Consolidated Coal Co. v. Scheiber, 167 Ill. 539; Illinois Central Railroad Co. v. Weiland, 179 id. 609; Baltimore and Ohio Southwestern Railway Co. v. Keck, 185 id. 400; Swift & Co. v. Rutkowski, 182 id. 18.

We think we háve covered all the material points raised and insisted upon as error.

The judgment of the Appellate Court will be affirmed.

Judgment 'affirmed.