Chicago & Alton Railroad v. Brandau , 1895 Ill. App. LEXIS 1055 ( 1896 )

Mr. Justice Boggs

delivered the opinion oe the Court.

The intestate of each administratrix in the above styled causes was killed by the explosion of the boiler of a locomotive engine of the appellant company.

Brandau was fireman of the engine and Hastings was forward brakeman of the train which the engine was drawing. The engineer, DnBois, was killed in the same explosion. The above cases are appeals from judgment against the company in favor of the representatives respectively of the fireman and forward brakeman. We have filed an opinion reversing a judgment rendered in favor of the administratrix of DnBois, the engineer. (65 Ill. App. 142.)

All that is said in that opinion is applicable to the cases at bar.

While we think the evidence leaves the cause of the explosion a matter of pure conjecture, still if it resulted from the negligence of the engineer, DuBois, as is alleged in one or more counts in the declarations in these cases, there could be no recovery in favor of the fireman or the forward brakeman.

It appears from proof produced in behalf of the adminis-' tratrix the position of the forward brakeman when the train is in motion is in the cab of the engine with the engineer and fireman.

They were all in the cab of the engine when the explosion occurred. Their usual duties brought them into habitual association, and they were charged with the duty and had opportunity to exercise an influence, each over the other, promotive of due care and caution.

The relation of fellow-servant existed, and neither could look to the master to respond for the negligence of the other. I. C. R. R. Co. v. Kerr, Adm’x, 72 Ill. 512.

A great number of cases holding that an engineer and a brakeman are fellow-servants are collected on page 866, Vol. 7, Amer. & Eng. Ency. of Law, and a like collection of cases holding the relation exists between the engineer and fireman will be found on p. 877 of the same volume of the Encyclopedia.

The judgment in each of the cases is reversed and neither case will be remanded.

Chicago & Alton Bailroad Co. v.

Belle Hastings, Adm’x.

The clerk will incorporate in the judgment the following finding of facts:

The court doth find the evidence herein fails to show the appellant company was guilty of the negligence alleged in the declaration in respect of the construction or keeping in repair of the said locomotive engine and boiler and that the appellant used due care in that behalf.

The court doth find the evidence fails to disclose what was the cause of the explosion of the boiler of said locomotive and that the cause of the explosion is unknown.

The court doth further find Grant Hastings, appellee administratrix’ intestate, and the engineer, William L. DuBois, were at the time of the explosion fellow-servants of the appellant company.

Chicago & Alton Railroad Company v.

Minnie Brandau, Adm’x, etc.

The clerk will incorporate in the judgment the following finding of facts:

The court upon consideration hereof doth find that the evidence herein fails to show the appellant company was guilty of the negligence alleged in the declaration in respect of the construction or keeping in repair of the said locomotive engine and boiler, but that said appellant used due care in that behalf.

The court doth further find the evidence herein fails to disclose -what was the cause of the explosion of the boiler of said locomotive, and that the cause of the explosion is unknown.

The court doth further find that Henry Brandau and William L. DuBois, the engineer in control of said locomotive, were at the time of the explosion fellow-servants of the appellant company.