Pierce v. Chicago City Railway Co. , 202 Ill. App. 69 ( 1916 )

Mr. Justice Goodwin

delivered the opinion of the court.

4. Master and servant, § 242^*—what act of vice principal not that of felloro-servant. In an action to recover for the death of a street car conductor as a result of being struck by a car at a street car terminal, resulting from the act of a starter in leaving open a switch, causing an incoming car to take the switch and strike deceased, where there was evidence sufficient to show that the starter was a vice principal, held that in the act of personally opening the switch the starter was not a fellow-servant of deceased, the starter’s duty being that of supervision, and to use due care to see that no other car was switched across so as to injure deceased, which duty was continuing and of which the starter could not divest himself, no matter whether the switch was opened by himself or another. 5. Master and servant, § 103*—when street car conductor acting within scope of authority. In an action to recover for the death of a street car conductor as a result of being struck by another car at a street car terminus, where there is evidence that at the time of the accident it was within one minute of deceased’s leaving time, for which reason he himself was shifting his trolley poles preparatory to a quick departure, instead of waiting for a switching crew who usually performed such service, held that deceased was acting in the scope of his duty when killed, for since the duties of conductors and motormen in such case cannot be absolutely defined and divided, and since the successful prosecution of the company’s business demands the prompt dispatch of cars from a terminus, it is the duty of conductors- and motormen to co-operate to that end. 6. Master and servant, § 779*—when instruction as to effect of negligence of vice principal proper under evidence. In an action to recover for the death of a street car conductor as a result of the act of defendant’s vice principal, a starter, in leaving a switch open at a street car terminus, so that deceased was struck by another car, an instruction as to the effect of the negligent and unskilful exercise of the authority of a vice principal as bearing on the principal’s liability for negligence, held not erroneous for want of evidence whereon to base it, where it appeared that at the time of the accident such starter was, under defendant’s rules, in control of cars and men at the point where the accident occurred, and where the man in charge of the car which struck deceased was under the control of such starter and subject to his directions, although it appeared that the starter gave no commands, the language used being obviously proper in such case. 7. Master and servant, § 779^*—When instruction on effect of acts of vice principal on master’s liability not erroneous. In an action to recover for the death of a street car conductor as a result of the act of defendant’s vice principal, a starter, in leaving a switch open at a street car terminus, so that deceased was struck by another car, an instruction that the “commands” of the vice principal within the scope of his authority are the commands of the principal, held not erroneous where the evidence showed that no commands were given, and that the act complained of as negligence consisted of permitting the car which struck deceased to pass the open switch, since the jury could not have understood the reference to commands to refer to directions given in the case, and since the language complained of was used merely to illustrate to the jury the close identification of the master and vice principal. 8. Master and servant, § 789*—nohen instruction on effect of negligence of vice principal does not direct a verdict. An instruction that the commands given by a vice principal within the scope of his authority are the commands of the master, and that if the vice principal is negligent in the exercise of his power and authority, his negligence is the negligence of the master, held not to direct a verdict either expressly or impliedly, the sole effect of the instruction being to say that the negligence of a direct representative of the master is that of the master himself. 9. Master and servant, § 804*—when instruction on who are fellow-servants not misleading. In an action to recover for the death of a street car conductor as a result of the act of defendant’s starter in leaving a switch open at a street car terminus, whereby deceased was struck by another car, where defendant claimed that the starter was a fellow-servant of deceased, an instruction as to who are fellow-servants, held to give no misleading direction or impression, where the second part, which was the vital ánd directing part of the instruction, stated with clearness the alternative conditions which must exist in order to constitute fellow-servants, although the first or negative part was awkwardly worded and difficult to understand. 10. Master and servant, § 699*—when instruction on contributory negligence not erroneous. In an action to recover for the death of a street car conductor as .a result of the negligence of defendant’s vice principal, an instruction defining ordinary care as that of an ordinarily prudent person “situated as he was, both before and at the time of the injury,” held not erroneous as assuming that an ordinarily prudent person would be situated as deceased was, the plain import of the instruction being to require deceased to observe ordinary care both before and at the time of the injury. 11. Master and servant, § 777^*—when instruction properly refused as misleading. In an action to recover for the death of a street car conductor as a result of the act of defendant’s starter in opening a switch at a street car terminus and slipping a block under the switch handle so that the switch remained open, as a result of which a car took the switch instead of proceeding to the end of the line, and, crossing to the other track, struck and killed deceased, an instruction that because it was not charged in the declaration that a stick or block of wood was used to prop the switch open, no recovery could be had on account of the act of using such block, held properly refused, since the act was but a single incident in the negligent conduct charged in the declaration, and the requested instruction would have created an erroneous impression that such fact might be eliminated in considering the question of negligence. 12. Instructions, § 128*—when refusal to direct finding on count not supported by evidence not erroneous. In an action to recover for death which is the result of personal injuries sustained by deceased by reason of defendant’s negligence, it is not reversible error to refuse instructions to find defendant not guilty on counts not supported by evidence where the evidence is sufficient to support any one valid count.