Chicago & Western Indiana Railroad v. Rolvink , 1888 Ill. App. LEXIS 420 ( 1889 )

Garnett, P. J.

On 'and before June 10, 1886, Frank Kolvink was engaged in business in the village of Hegewisch, in Cook county. On the day named he came to his death under the following circumstances:

Early in the forenoon some freight belonging to him, was delivered by the Chicago & Atlantic Bail way Company, at the-station of the Chicago & Western Indiana Bail road Company in the village, and was left on the platform adjoining the station, as there was no freight house where it could be deposited. The platform was built by the Western Indiana company, and was used in connection with railroad traffic at that point, over the adjoining tracks of that company. The platform was narrow, and at the time of Bolvink’s death, it is alleged that freight was piled^theredn in such a manner that only a very contracted space next to the railroad track was left, making passage thereon dangerous. Bolvink took away one load of his goods, and having returned for another, while passing along the space described, on the platform, was struck and killed by the pilot beam of a train of the Louisville, New Albany & Chicago Bailway Company running over the track of the Western Indiana company. The last named company owned .the railroad, station house and platform, but operated no trains over the road. It had granted to the Atlantic company the privilege of using the station and platform, and operating its trains over the road, and that company was then using the road, station and platform for its railroad business. The New Albany company had also received from the Western Indiana company a grant of the right to run its train over the track by the station, but not the use of the station or platform, and, in fact, it made no use of and had no control over either. Appellee sued the three companies, and recovered against them jointly a judgment of $3,000 for causing Kolviuk’s death, from which the defendants all appeal.

A joint judgment can not bé sustained unless there was some concert of action between all of the defendants, or concurrent neglect of a. common duty resting on all. City of Peoria v. Simpson, 110 Ill. 294; 2 Hilliard on Torts, 248 ; Bard v. Yohn, 26 Pa. St. 482. There can be no well founded claim that there was common design or concert of action between the three defendants. And the record is just as destitute of evidence that there was concurrent neglect of a common duty. The New Albany company had nothing to do with the station or platform, it had no agent or employe there, had no part in the management or control thereof, and derived no benefit therefrom. The station and others in charge there were not in its employ, and had it undertaken to give them orders, the other companies might justly have resented such action as impertinent intrusion. The evidence wholly fails to connect the New Albany Company so as to make it jointly. liable with the other defendants. But from what is here said no inference is to be drawn that it would not be separately liable if the evidence sufficiently established that it was guilty of negligence which caused Rolvink’s death, although he may have been killed on the platform under circumstances that would also make the other defendants responsible.

We are not prepared to say that a joint judgment against the Western Indiana and Atlantic companies could not be sustained. If the station and freight agent was employed by both companies to perform the same duties, there can be no doubt that he was their joint agent to that extent, and if in the performance of such duties he was guilty of neglect cansing Bo 1 vink’s death, the joint liability follows. The act of the agent in the j>erformance of his duties is as indivisible as the human will that sets him in motion. Stone v. Dickinson, 5 Allen, 29.

The declaration is faulty in charging that the deceased was killed by a locomotive and train of cars used and operated by the defendants. The fact is undisputed that the train was the property of the Eew Albany company, and it alone was using and operating the same. In this respect the plaintiff should have leave to amend her declaration, on the re-docketing of the cause in the court below.

The judgment is reversed and the cause remanded.

S ever sed and remanded.

Gaby, J., took no part in this case.