Chicago & St. Louis Railroad v. Ashling

C. B. Smith, J.

This was an action on the case brought by appellee as administratrix of the estate of her deceased husband, Edward W. Ashling, against appellant, to recover damages on account of the death of her husband caused by the alleged negligence of appellant. The declaration is not abstracted, but as no question is made as to its sufficiency, and no question arises under it, we assume that it is in the usual form, charging that the death of Edward W. Ashling was caused by the negligence of appellant, and that the deceased was in the exercise of due care. • •

From the evidence, we learn that the deceased was what is known as a “hostler” in railroad parlance, i. e., that he received engines from the regular engineers, as they came from the road, and then took charge of them in the shops or ■round house, and had them cleaned and ready for departure on the road again when they were wanted, and that he also ran locomotives about the yard or assisted trains to pull over grades with an extra engine when that service was needed. It was in this latter bind of service that he was killed, on the 23d day of February, 1886. He was ordered by Heckman, the master mechanic of appellant, on that day, to take engine Ho. 11 out of the round house at Streator and push an outgoing train over Eansom Hill, a few miles east of Streator. He obeyed the order, and after assisting the train over the hill he started to return to Streator, and on his way back the boiler of the locomotive exploded and killed him.

It was contended by the plaintiff below that the boiler was weak and cracked, and had been out of repair for some time; and that it was dangerous and unfit for use at the time the deceased was sent out with' it, and known to be so by appellant; and that it was an act of negligence on the part of appellant to allow it to be used by the deceased, and that deceased did not know of the weak or dangerous character of the boiler. On behalf of the defendant it is urged that the boiler was not weak, cracked, or out of repair, and that the explosion was not due to that cause, but on the contrary, was caused by the negligence of the deceased himself in allowing the water in the boiler to get too low.

A trial below resulted in a verdict for appellee for $5,000, and the court, after overruling a motion for a new trial, gave judgment on the verdict. Proper exceptions to the ruling of the court were taken and now appellants bring the case here upon appeal.

Inasmuch as this judgment must be reversed and the cause remanded for another trial, we refrain from the expression of any opinion upon the weight or sufficiency of the evidence to support the verdict.

Mr. Heckman wras the master mechanic of appellant in 1886, and Mr. Crocker at the same time was supeilntcndent of all matters pertaining to the machinery, cars, tracks, bridges and buildings of the appellant’s road, and they had their headquarters at Streator at the time of the accident. At the same time John T. Corbet was foreman of the C., B. & Q. boiler shops at Aurora. He had for several years been inspector of boilers and was interested in knowing the cause of explosions, as he says. He saw an account of this explosion on the 23d of February, and on the 27th day of February, four days later, he went to Streator to examine this boiler, in company with a Mr. McDaniels. When they arrived at Streator they went to appellant’s yards and found what they supposed to be the wrecked locomotive, marked Ho. 11. While they were looking at it, Heckman and Crocker came out to them and engaged them in conversation concerning the boiler. The record discloses the following examination of Corbet, who was then on the witness stand testifying for appellant. These questions were asked by counsel for appellee on cross-examination:

Q. What did they or cither of them say about that locomotive being the one or not the one that exploded with Mr. Ashling ?

Objection by defendant; overruled, and exception.

A. I asked Mr. Heckman if this was the engine that killed Mr. Ashling. He said it was. Mr. Crocker also said it was: then we examined the engine carefully and I pointed out to them the weak places in the engine.

Motion to exclude by appellant; overruled, and exception.

Q. What did you say or do to Mr. Heckman and Mr.

Crocker with regard to the locomotive ? If anything, state fully.

Objection by defendant; overruled, and exception.

A. I showed them the weak places in the boiler.

Q. What did you show them ? explain to the jury.

A. I showed them where the sheet was cracked, two-thirds of the way through.

Q. What sheet ?

A. The wagon top. * * *

Q. Did you call Mr. Crocker’s or Mr. Heckman’s attention to that crack at that time ?

Objection by defendant; overruled, and exception.

A. I did, sir.

Q. What did they say about it, if anything ?

Objection by defendant; overruled, and exception:

A. They both of them said it was a weak place; surely a weak place.

Motion by defendant to exclude answer; motion overruled, and exception.

When Mr. McDaniels was called as a witness for appellee, he was permitted, over the objections of appellant, to testify as to what the witness Corbet said to him and the others, on the occasion when the locomotive was being examined, referred to by Corbet, and to give to the jury what Corbet said and did in pointing out the weak places in the boiler.

The admission of this testimony so far as it relates to the declarations of Crocker and Heckman as to the condition of the boiler or locomotive was clearly and manifestly erroneous.

The declarations of .an agent or servant of the principal, made in the discharge and line of his duty and in the immediate connection of the doing of some act in the line of his duty, and which relate to what he is doing, so as to become a part of the act or res gestee itself, is always competent evidence to be used against the principal when the act done becomes the subject of judicial inquiry. This is allowed because the act and the declarations made in connection with it form one indivisible transaction. Mix v. Osby, 62 Ill. 193.

On the contrary, the declarations of agents and servants are not admissible against the principal or master, when they do not form a part of the transaction involved so as to become a part of it, or be a part of the res gestm. This rule of law seems to be so well settled and so universal in its application that a citation of authorities in its support would be wholly unnecessary and we shall refer to but three cases: M. C. R. R. Co. v. Granger, 55 Ill. 503; C., B. & Q. R. R. Co. v. Lee, 60 Ill. 501; C., B. & Q. R. R. Co. v. Riddle, 60 Ill. 534.

Indeed, we do not understand appellant as denying that this is the law, but it insists that Crocker and Heckman were not the agents or servants of the company, but being chief officers, their declarations might bind the company whenever or wherever made.

There can be no claim that Heckman was a chief officer. As to Crocker, he swears that “ in 1886 he was in the service of appellant and had general supervision of all matters pertaining to the machinery, cars, tracks, bridges and buildings of the appellant, and had the appointment of master mechanic or foreman of the machine shops.” This answer would indicate that he had charge of . the particular matters mentioned in his answer; but we do not understand that this employment would make him what the law recognizes as one of the general officers of the corporation, such as president, or general superintendent or manager, standing in the very stead and place of the corporation, and speaking and acting for it, and binding it by his declaration from very necessity.

There is a wide difference between a president or a general superintendent of a corporation," having general control or power over all its affairs, and a mere master or chief of some particular department. There are many subordinate departments or divisions in the operation of railroads with individual chiefs or heads of these departments, but they are all responsible to the general head or chief officer. But even in the case where the declarations of a president may bind a corporation they must be so intimately connected with the discharge of some duty required by him by virtue of his office that such declarations are a part of the res gestae. The conversation must be a part of, or relate to, some act which he is doing in the line of his duty as such officer. Otherwise his declarations can not bind the company. And in the C., B. & Q. R. R. Co. v, Coleman, 18 Ill. 297, the very case relied on by appellant, this distinction is clearly recognized and pointed out. In that case the declarations made by the president of the company related to a business transaction which he, as such president, had in hand and was trying to adjust, and when he not only had the right, but it was his duty to act and speak for this company. We think this distinction will be found to run through all the cases, viz.: That none but general officers can bind corporations by their declarations and admissions, and that even then such declarations must be made while they are engaged in the line of their duty, doing some act required or permitted of them by their office, in the transaction of some business. While it may be true that the same strictness as to the time, place and circumstances, which would be required in order to make the admission of a mere agent or servant admissible, would not apply to a general officer of a corporation, still it must, at all events, appear that the general officer, in order to bind the corporation or his principal by his declarations or admissions, is speaking in connection with some official act required or permitted to be done by him by virtue of his office, although completion of the business in hand may require a greater or less length of time, and may properly relate to and cover transactions on different dates.

Tested by this rule it would not alter the result if it should be conceded that both Crocker and Heckman were general officers. Here is a conversation had with Corbet and McDaniels, strangers to all parties, four days after the accident, when the admissions are claimed to have been made, in no manner whatever connected with it in point of time or place. The admissions and conversations did not relate to any attempt to settle the claim of appellant and were not with any one authorized to settle for her. The admissions were not connected with the doing of any act required of either Crocker or Heckman, so far as the testimony discloses. The evidence was, therefore, hearsay, pure and simple. Both Crocker and Heckman were present and could have been called to testify to what they saw in relation to the condition of the boiler on that occasion. Their admissions were introduced as original testimony for the plaintiff and not by way of impeachment after a proper foundation had been laid, and after they had denied making use of the declarations attributed to them.

It is also insisted the court erred in giving appellee’s first instruction:

1. If the jury believe from the evidence that the deceased, Edward II. Ashling, the plaintiff’s intestate, in February, 1886, was killed by the explosion of a boiler on a locomotive of the defendant while running such locomotive in the employ of the defendant as an engineer, and that such death was caused by the said boiler being out of repair and defective through the carelessness of the defendant, so that it was unsafe and caused such explosion, and that the deceased at the time was using ordinary care in the running and use of such locomotive and boiler, then the plaintiff would be entitled to recover damages for such death to an amount not exceeding $5,000, and in such case, the jury should find for the plaintiff. (Owen.)

Only two other instructions were asked or given on behalf of the appellee, one defining what ordinary care was, and the other defining or relating to what is meant by a preponderanee of the evidence. While there were thirty instructions asked and given for appellant (a most unreasonable number), there were none of them that recognized the right of appellee to recover any damages or that sought to lay down any limitations on the right of appellee to recover any amount in case the jury found for her. So that there was nothing in all the instructions to restrain the jury either as to the basis or grounds of recovery, or its amount, except the statement in the first instruction for plaintiff, that she might recover, if at all, the full amount of $5,000. The statute giving this cause of action to the widow and next of kin, expressly limits the right and extent of recovery to the pecuniary loss sustained in the death of the husband, to an amount not exceeding the sum of $5,000". The jury were not informed in this instruction that any such limitation as that imposed by the statute limiting appellee’s right of recovery to the extent only of her pecuniary loss, had any existence, or that they could not go beyond that sum.

The instruction was bad in another respect. It did not even restrict the jury in the assessment of damages, to what was shown by the evidence. It simply gave the jury an unbridled license to give the plaintiff whatever they pleased if she was entitled to recovery at all; and the only restriction placed upon them was that they could not exceed $5,000. In these respects this instruction was bad. City of Freeport v. Isbell, 83 Ill. 140; Martin v. Johnson, 89 Ill. 537; C., B. & Q. R. R. Co. v. Sykes, 96 Ill. 162; Rolling Mill Co. v. Morrison, 111 Ill. 646; James v. Johnson, 12 Ill. App. 286; McGinnis v. Berven, 16 Ill. App. 357; East St. L. & C. Ry. Co. v. Frazier, 19 Ill. App. 92. The instruction is also defective in not submitting to the jury the question of the knowledge of the deceased, or his want of knowledge, of the alleged dangerous condition of the boiler.

It may be and has been urged that the rule insisted upon and held to be the law in the above cases is unreasonably strict, and that both the Supreme and Appellate Courts have adhered to refinements not always supported by any substantial reason. However just or unjust these complaints may be in fact it is immaterial for us to inquire. It is enough for us to know that the Supreme Court has repeatedly laid down the rule that great strictness and technical accuracy shall be observed in instructions relating to the measure of damages in actions to recover damages for personal injuries. It is our duty to' follow the law in this as in all other respects, as declared by the Supreme Court. The only safe rule is for parties to recognize the requirements of the law in the preparation of their instructions and to use a little more care in that respect. If instructions were prepared after careful examination of the decisions instead of in the face of the jury and excitement and hurry of the trial, it would save many reversals for errors in law which may not affect the real merits of the case, but which courts can not disregard.

For the errors indicated, the judgment is reversed and the cause is remanded.

Reversed and remanded.