Wabash Railroad v. Bhymer

Mr. Justice Stein

delivered the opinion of the court.

First. The correctness of the court’s ruling in sustaining the demurrer to the plea of the Statute of Limitations to the third and fourth additional counts depends upon whether the counts introduced a new cause of action or were merely a restatement of the cause of action previously declared on. If the former, the demurrer should have been overruled; if the latter, it was properly sustained. C. C. Ry. Co. v. Leach, 182 Ill. 364.

The argument is that by these counts appellee for the first time charges negligence in the operation of the first train. If this be so, the action of the court was wrong. But in our opinion the second additional count alleges that character of negligence. Its language is that “ defendant negligently caused, suffered and permitted a certain other locomotive and train of cars to become and remain wrecked upon said track.” While the words “ operate ” or “ manage ” are not used, still the words which are used may mean and include operation. The language is general and wanting in precision and might perhaps have been demurred to on that ground; yet under it, proof of negligence in the operation of appellant’s trains was, we think, permissible. The third additional count charges negligent operation in a general way, and the fourth is simply a fuller and more detailed statement of the cause of action declared on in the second in that it sets forth the specific facts and circumstances showing how appellant negligently caused the first train and locomotive to become wrecked.

Second. It is next contended that the court erred in not directing a verdict for appellant because (a) the employees on both trains, including appellee, were in law fellow-servants, and because (b) his injuries resulted from a risk which he had assumed.

a. Counsel do not in terms point out under which branch of the rule appellant is exempt from liability, and from their method of argument it is difficult, if not impossible, to determine upon which branch they rely. There is but little if any proof tending to show want of liability under the second branch, that “ their (the servants) usual duties shall bring them into habitual consociation.” The proof is practically confined to the running of the two trains on the day of the accident, and it does not appear whether the duties of appellee and the employees on the other train brought them together at other times. At the time of the injury appellee had been in appellant’s service only one month. At any rate, so far as the" second branch of the rule is concerned, the court would not have been justified in withdrawing the question from the jury and holding as matter of law that appellant is not liable; and we are inclined to think that counsel do not so claim.

The real contention then is that appellee and the other employees were directly co-operating with each other in the particular business in hand. Whether this contention be correct depends upon the meaning of the phrase “ the particular business in hand ” as applied to the circumstances of the case. If by such business is meant the operation of appellant’s road, it would not be liable; whereas it would be if the particular business in hand means the operation of each train by and for itself.

O. & M. Ry. Co. v. Robb, 36 Ill. App. 627, cited by counsel, is not in point because the plaintiff and his co-employee were held to be fellow-servants under the second branch of the rule. In Clark v. Wabash Ry. Co., 52 Ill. App. 104, next cited, it is apparent that the company was discharged from liability also under the second branch of the rule inasmuch as the court cite the Robb case, supra, as sole authority and the proof was directed to show “ habitual consociation.” The same ’ is true of E. J. & C. Ry. Co. v. Malaney, 50 Ill. App. 114, and Klees v. C. & E. I. Ry. Co., 68 Ill. App. 244. In T. H. & I. Ry. Co. v. Leeper, 60 Ill. App. 194, plaintiff’s intestate and the crew by whose negligence he lost his life were employed, not on different trains, but on different sections of the same train. I. C. Ry. Co. v. Swisher, 74 Ill. App. 164, is dissimilar in its facts. What was said on this subject in C. & E. I. Ry. Co. v. Rouse, 78 Ill. App. 286, was not necessary to the decision.

To hold in this case as a matter of law that appellee and the men working on the train ahead of him were fellow-servants, would be to hold that the operation of the numerous trains on appellant’s road was the particular business in hand. This we are not prepared to do. C. C. Ry. Co. v. Leach, 80 Ill. App. 354, s. c., 104 Ill. App. 30; C. & A. Ry. Co. v. O’Brien, 155 Ill. 630; Hartley v. R. R. Co., 197 Ill. 440. In the O’Brien case the Supreme Court say: “To hold broadly that the servants working in the same department are fellow-servants would practically abolish the rule of this court as distinguished from that at common law and held by other courts.” The decision in the Hartley case rests upon the same views. In the Leach case the plaintiff was a conductor in the employ of a street railway company, having in charge two cars, a grip-car and a trailer, and it became necessary for him to stop his train and get underneath between the cars to tighten a drawbar. While so engaged the train next following crashed into his, and inflicted upon him the injuries sued for. We regard the facts and attending circumstances in that case much stronger in favor of the master than.in the case at bar; yet the Appellate Court has twice held that Leach and the negligent gripman of the train that ran into him were not fellow-servants, and the Supreme Court in an opinion tiled October 26, 1903, affirmed the last decision of the Appellate Court. It has since, however, granted a rehearing.

b. The contention that appellee was injured as the result of a risk assumed by him is so well answered by what was said by Ball, J.. in the Leach case, supra, 104 Ill. App. 35, that we quote the passage: “ An employee does not assume all the risks incident to his employment; but such as are ordinary and usual he does assume. ‘Usual’ is that which is common, frequent, customary; ‘ordinary ’ is that which is often recurring. Can it be said that the dashing of one train into another upon a clear day on a straight track was an ‘ordinary’ or'‘usual’ danger which appellee assumed when he_ accepted employment with appellant? The jury have said it is not, and we agree with that finding.” Hartley v. R. R. Co., supra.

Third. Complaint is made of the refusal to give appellant’s second instruction which would have informed the jury that before appellant could be held oh account of an unsafe track, it must have had actual or constructive knowledge thereof. The jury were so informed by given instruction No. 6. Moreover, under the law and the facts ' of the case there could be no recovery by reason of the track’s condition. It was conceded that the track was safe and sound until the accident to the first train and there was no time to repair it during the few minutes that elapsed before the accident to the second train. Manifestly the jury took this view of the matter, for they found specially that the cause of the injury was the manner of operating the first train.

Instruction No. 5 was properly refused because it does not refer or limit the jury to the evidence and does not purport to be based thereon.

Under instruction No. 9 appellee could not recover if he was injured because “the engineer of the first or second engine of train 94 (the one appellee was on) failed to heed signals given by some of the crew of the train called 3-64 ” (the train ahead of him). This instruction was bad for two reasons. By it the court is made to say that the failure to heed the signals constitutes negligence. This" was a question of fact for the jury. But even if such negligence did exist, that is, negligence on the part of those engaged with appellee in operating the second train, such negligence would not "be imputed to him and bar a recovery unless appellant and its servants were free from negligence in managing the first train. Upon this point the instruction was silent. C. & A. Ry. Co. v. Harrington, 192 Ill. 9.

Whether appellee and his fellow employees upon his own train were in the exercise of proper care was a question of fact for the jury, and we cannot say that their finding is against the evidence. While there was proof tending to show a want of such care on the part of appellee’s fellow-employees, he himself is not shown to have been in default; and appellant’s witness testified that the engineers of both engines did everything .in their power to stop the train; that it could not have been stopped in less distance; that it was “ pretty near stopping ” when it was derailed. Besides, as has been pointed out, even if the éngineers were negligent, that'fact would not relieve appellant from liability if their and its joint negligence concurred in bringing about appellee’s injuries.

Other errors are assigned but not argued and hence waived. .

The judgment of the Superior Court is affirmed.

Affirmed.