dissenting:
This is an action on the case, brought by the appellant against the appellee company to recover for injuries received by him on May 3,1892, at the village of Sublette in Lee county.
The original amended declaration contained two counts. The first count alleged that the plaintiff was injured on said day on account of a collision between a passenger train going south, upon which' he was acting as fireman, and a freight train of the appellee company, heading north and standing on the east side-track at the station in the village of Sublette; that the passenger train ran through an open switch; that the target on said switch was prepared for a lamp, but no lamp1 was furnished by the company, and none was on the switch. The proof tends to show, that the collision occurred about fifteen minutes after seven o’clock in the evening of said day; that it was cloudy and dark at the time; that, if there had been a light on the switch, the engineer on the passenger train could have seen the switch turned in time to stop the train and could have prevented a collision; that the main track and east and west side-tracks at said place and the switches were used both in the day time and in the night time under the directions of the defendant; that the- person or persons, whose duty it was to furnish the proper appliances of said switch, and signal lights to place thereon, and the necessary appliances for the ordinary safety of the company’s employes, were not fellow-servants of the plaintiff; that the plaintiff had no knowledge of the incomplete condition of the switch or of the neglect of the defendant to place signal lights thereon; that the same were necessary for the safety of the plaintiff and his fellow-servants.
The second count is substantially the same as the first, but does not allege that the injury occurred in the night time; on the contrary, the second count alleges that sufficient light was not afforded by the sun or the moon to see said target, and that there was no artificial light.
Under the issues made upon the two counts above described, the case was first tried before a jury in the circuit court, and resulted in a verdict and judgment in favor of the appellant for $9375.00. Upon appeal to the Appellate Court this judgment was reversed, and the cause was remanded to the circuit court, as will be seen by reference to the case of Illinois Central Railroad Co. v. Swisher, 53 Ill. App. 411. After such reversal and remandment the case was tried a second time in the circuit court before the court and a jury, and again resulted in a verdict and judgment in favor of the appellant. A second appeal was taken to the Appellate Court where the second judgment thus rendered was reversed, and the cause was again remanded to the circuit court, as will be seen by reference to the case of Illinois Central Railroad Co. v. Swisher, 61 Ill. App. 611.
After the second reversal and remandment of the cause to the circuit court two additional counts were filed. The first additional count alleged, that the switch was negligently permitted to be and remain open by the company and its servants, so that the engine and train in consequence of the said negligence, and as a proximate result thereof, were diverted from the main to the sidetrack on the easterly side of the main track, and came in collision with a locomotive engine and train of cars of the defendant standing on said side-track; that the switch was permitted to be and remain open .without the fault of the plaintiff or any of his fellow-servants. . The second additional count alleged, that the company, by its servants, carelessly opened said switch before the time when the locomotive was approaching, and by its servants negligently permitted the same to be and remain open, until the engine reached the same, and thereby caused the passenger train, upon which the plaintiff was working as a fireman, to run on to the side-track and collide with the freight train standing there.
Under the issues formed upon the declaration, as thus amended, consisting of the two original counts and of the two additional counts so added as, aforesaid, the cause' was tried a third time before the court and a jury; and the third trial again resulted iu a judgment in favor of the plaintiff and against the.company for $5000.00. The company took an appeal from the third judgment thus rendered to the Appellate Court. On December 17,1897, the Appellate Court entered a judgment reversing the cause without remanding it. Prom the judgment thus entered by the Appellate Court, reversing the cause without a remandment thereof, the present appeal is prosecuted to this court.
In the judgment thus entered by the Appellate Court on December 17, 1897, the Appellate Court embodied the following finding of facts, so called, to-wit: “And the court finds, as facts from the evidence in the case, that the injury to appellee (the present appellant) under the original declaration as amended was the result of the risks incident to his employment and occurred in the day time when lamps were not required on the switch of the appellant (the present appellee); and the injuries resulting to him by reason of the negligence averred in the additional counts of the declaration were occasioned by the negligence of a fellow-servant of the appellee (the present appellant) directly co-operating with him in the particular business in hand and in the same line of employment, in which the injuries were sustained.”
The facts, which the Appellate Court is required by section 87 of the Practice act to find and incorporate in its judgment, are the ultimate facts upon the existence or non-existence of which, as set up in the pleadings, the rights of the parties depend. Section 87 of the Practice act, which has often been before this court for construction, “does not mean that the Appellate Court shall find what was the evidence of the ultimate facts, or that it shall find those merely subordinate or evidentiary facts which, when established, contribute to the establishment of the ultimate fact which must exist in order to sustain the alleged cause of action.” The ultimate facts thus to be found are ordinarily that the plaintiff was or was not in the exercise of ordinary care, and that the defendant was or was not guilty of negligence. Not only are the facts thus to be found the ultimate facts above referred to, but “where the Appellate Court finds the facts different from the trial court, the facts recited must include every material issue submitted to the trial court to authorize the Appellate Court to render final judgment different from the one below. * * * But a finding upon an immaterial issue, or facts which can have no bearing on the decision of the case, is not required.” The recital of the facts by the Appellate Court in its judgment is only authorized by section 87 when its finding, either wholly or in part, of the facts concerning the matter in controversy is different from the finding of the trial court. Where it makes the same finding of facts as the trial court, it must affirm the judgment of the latter court, unless it finds that there is some erroneous ruling upon a question of law. The views thus expressed are sustained by the following decisions: Hayes v. Massachusetts Life Ins. Co. 125 Ill. 626, and cases there cited; Hogan v. City of Chicago, 168 id. 551, and cases there cited; Senger v. Town of Harvard, 147 id. 304.
The finding of facts made by the Appellate- Court in this case, as above set forth, does not conform‘to the rules thus laid down. There is no finding of the ultimate facts, or either of them, as to whether or not the plaintiff was in the 'exercise of ordinary care when the injury occurred, or as to whether or not the defendant was guilty of such negligence as produced the injury.
The Appellate Court finds “that the injury to appellee (the present appellant) under the original declaration as amended was the result of the risks incident to his employment.” This finding, if it be a finding of fact, is consistent with the finding of the court below which resulted in a judgment in favor of the appellant, that is, upon the assumption that the opening of a switch, and the permitting of the same to remain open, and the inability of an engineer to see the switch in time to avoid injury, are risks incident to the employment of a fireman upon a passenger train.
In Chicago and Alton Railroad Co. v. House, 172 Ill. 601, where a fireman on a passenger train was killed through the negligence of the crew of another "train in leaving open in the night time a switch which had no light, it was said (p. 605): “That appellant was in fault with respect to the absence of the light is not denied, but it is contended that the risk it created was accepted and assumed by the deceased. An employe does not assume all the risks incident to his employment, but only such as are usual, ordinary, and remain so incident after the master has taken reasonable care to prevent or remove them, or, if extraordinary, such as are so obvious, and expose him to danger so imminent, that an ordinarily prudent and careful man would anticipate injury as so probable that in view of it he would not enter upon or remain in the employment. * * * ‘Usual’ is defined as ‘common; frequent; ordinary; customary; general;’ and ‘ordinary,’ as ‘common; usual; often recurring.’ It cannot truly be said that a switch left open when it should have been closed is an ordinary or usual incident in the employment of train hands on a railroad, and it is certain that no degree of light would enable the engineer to see it open except when it is open. Here there was no defect in the switch itself. Had it been used at all after it was" opened, it would have prevented the accident. The duty to close it rested upon those who knew how, were well able, had full opportunity, and every motive of interest to perform that duty and a settled habit of performing it.” Again in Pullman Palace Car Co. v. Laack, 143 Ill. 242, we said: “As a general rule, the servant assumes the natural and ^ordinary risks of the business in which he engages.” Still again in Consolidated Coal Co. v. Haenni, 146 Ill. 614, we said: “When a servant enters into a contract of hiring with the master, he assumes all the risks ordinarily incident to the employment, and is presumed to have contracted with reference to such risks.” Here, the finding made by the Appellate Court does not state that the injury was the result of the natural and ordinary risks incident to the employment of the plaintiff.
It is also well settled, that the servant does not assume the risks incident to his employment, unless such risks are known to him, or unless the risks are of such a character that he ought to have known of them. “In order to imply assent on the part of the servant to the hazards of the service, the hazards and risks must be patent, or such as the servant knows or ought to know of. The servant assumes those risks only incident to his employment, of which he has express or implied notice. A servant does not assume the risks of any danger arising from unsafe or defective methods or surroundings or instrumentalities, unless he has, or may be presumed to have, knowledge or notice thereof. He has a rig'ht to assume that the place and appliances furnished him by his master are safe and suitable for the business in which he is engaged.” (Wood on Master and Servant, sec. 353; 14 Am. & Eng. Ency. of Law, pp. 843, 855; Whitney & Starrette Co. v. O’Rourke, 172 Ill. 177; Consolidated Coal Co. v. Haenni, 146 id. 614). In the case at bar, the question was-not whether the injury was the result of the risks incident to the appellant’s employment, but whether the injury was the result of the usual and ordinary risks incident to such employment, which were known to appellant, or which the appellant ought to have known of. The first count of the original amended declaration alleges that the appellant “had no knowledge of the incomplete condition of said switch and switches and the neglect of the defendant to place signal lights thereon.” Thus, the question as to whether the failure to close the switch, or the failure to give warning that the switch was open, was or was not such a risk as the appellant was bound to take notice of, or to have knowledge of„ was directly made by the pleadings. Therefore, the finding of the Appellate Court omits a material issue which was submitted to the trial court, and the finding actually made upon the question of risk is a finding upon an immaterial issue. It could make no difference whether the injury was the result of risks incident to "appellant’s employment or not, if such risks were not the usual and ordinary risks, which under the law he must be held to have assumed, or if the circumstances were not such as to charge him with notice or knowledge of such risks. The Appellate Court finds that the injury “occurred in the day time when lamps were not required on the switch of the appellant.” The statement is not that lamps were not required by the rules of the" company. The evident meaning of the finding, therefore, is, that lamps were not required simply because the injury occurred in the day time. Webster defines “day time” as “the time between sunrise and sunsetting.” The proof in this case shows, that the accident occurred at the hour of about fifteen minutes after seven in the evening. The almanac introduced in evidence showed, that, on May 3, 1892, the sun set at fifty-seven minutes after six in the evening. It would appear, therefore, that the injury did not occur in the day time, if the definition given by Webster is correct. By the terms, however, of section 87 of the Practice act, and in view of the construction given to that act by this court, the finding upon this question of fact by the Appellate Court must be regarded as conclusive. It is, nevertheless, true that the finding is immaterial under the allegations of the second count of the original amended declaration. That count does not allege that the injury occurred in the night time, but that “the sun had then set and sufficient light was not then afforded by the sun or moon whereby a person on said locomotive and train * * * could distinguish the said color of said painted sides of said target and target wings,” etc. The question under this count is, whether there was sufficient light to distinguish the targets on the switch pole, even though the time was day time instead of night time. The proof tends to show that the weather was cloudy and dark. If the weather was cloudy and dark, it was the duty of the company to see that there was a lamp upon the switch, whether the time when the injury occurred was before sunset or after sunset. The first count presents a case where the injury is alleged to have occurred in the night, and when, therefore, a lamp on the switch was necessary. The second count presents a case, in which the injury is alleged to have occurred when the weather was cloudy and dark so that there was no light from the sun, and when, therefore, a lamp upon the switch was equally necessary. Hence, the adverse finding of the Appellate Court is as to the facts set up in the first count, and not as to the facts set up in the second count. It is “the duty of the Appellate Court to recite in its final judgment its finding in respect of every controverted fact concerning every material issue submitted to the trial court, and material and necessary to the maintenance of its judgment, which it found differently from the trial court. * * * Where there is a recital of the facts controlling some of the issues, and no recital of facts as to other issues, it may be presumed that the Appellate Court found, in respect of the latter, as did the trial court.” (Hawk v. Chicago, Burlington and Northern Railroad Co. 138 Ill. 37). In Hayes v. Massachusetts Life Ins. Co. 125 Ill. 626, we said (p. 640): “Upon the failure of the Appellate Court to find the facts differently from the trial court upon both causes of action set forth in the declaration, it will be considered that, as to the cause of action whereof there is no finding of facts, the Appellate Court found the facts as did the court below.” In such case it is error for the Appellate Court not to affirm the judgment of the circuit court. (Ibid.)
In its finding of facts, as embodied in the judgment, the Appellate Court finds that “the injuries resulting to him (appellant) by reason of the negligence averred in the additional counts of the declaration were occasioned by the negligence of a fellow-servant of appellee (the present appellant) directly co-operating- with him in the particular business in hand and in the same line of employment in which the injuries were sustained.”
This is a finding that the injury was occasioned by the negligence of “a fellow-servant of appellant,” that is to say, of one fellow-servant of appellant.. But there was evidence tending- to show, that the injury was the result of the negligence of two servants of the railroad company. Some of the witnesses testified that the switch was opened by one Irwin, who was head brakeman upon the freig'ht train standing upon the side-track. The testimony also tended to show, that it was the duty of the station agent at Sublette to see that all switches were closed before the trains came in. One Jones was the station agent at that point, and was at the platform of the depot looking up the track before the train came in, but did not examine to-see whether the switch was closed or not. There is nothing in the finding of the facts made by the Appellate Court to indicate whether the fellow-servant therein referred to was Jones, the station agent, or Irwin, the brakeman upon the freight train.
The rules of the company, as introduced in evidence, provided that “station agents will be held responsible for the position of the switches and cars therein; and in no case will they allow the switches from the main track, without orders from the trainmaster, except when a train has arrived, to enter the side-track. Station agents must know that all switches are in proper position for the passage of trains upon the main track.” The testimony also shows, that “the division superintendent appoints station agents; trainmaster employs brakemen and conductors on freight trains.” There is no evidence that the appellant, Swisher, and the brakeman, Irwin, knew each other, or ever worked together, or were ever associated together in any way in any kind of work. If. however, Irwin and Swisher were fellow-servants, it does not appear that Jones and Swisher were fellow-servants. If Irwin was negligent in leaving the switch open, Jones was negligent in permitting it to remain open and in not examining it to see whether it was open, inasmuch as the proof shows that it was open at least twenty minutes before the passenger train arrived. The duty of the station agent would appear to have been a duty of supervision and inspection. The rule is, that a master’s duty of supervision and inspection is one that cannot be delegated, so as to relieve the master of liability. “Whilst a corporation must act through "its servants, yet when such servants are entrusted with a duty that belongs to the principal as a primary duty, the negligence of the servant entrusted- with that duty is negligence for which the principal is liable.” (Chicago and Eastern Illinois Railroad Co. v. Kneirim, 152 Ill. 458). The servant of the master who is thus entrusted with the duty of supervision and inspection is the direct representative of the master, and not a mere fellow-servant with those whose acts are subject to his supervision and inspection. (Wenona Coal Co. v. Holmquist, 152 Ill. 581).
It is true that the question, whether or not the servant who has caused an injury and the servant who has received an injury are fellow-servants or not, is a question of fact to be determined by the jury. The definition of a fellow-servant is a question of law, but whether the person claimed to be a fellow-servant comes within the definition is a question of fact for the jury. The verdict of the jury upon the trial below, and the judgment of the trial court based upon that verdict, amount to a finding- that the injury was not caused by the negligence of a fellow-servant. The judgment of the Appellate Court reverses the finding thus made by the jury, and substitutes therefor the finding of that court that the injury was caused by a fellow-servant. Such finding, however, made by the Appellate Court, is based upon the definition of fellow-servant as embodied in the finding of facts made by the Appellate Court. The Appellate Court says that the injuries were occasioned by the negligence of a fellow-servant “directly co-operating with him in the particular business in hand and in the same line of employment in which the injuries were sustained.” This definition of fellow-servant omits a qualifying clause which is essential to make the definition complete. It is a well settled rule in this State, that, when one servant is injured by the negligence of another servant, they are fellow-servants if, at the time of the injury, they are directly co-operating with each other in the particular business in hand in the same line of employment, or their duties being such as to bring them into habitual association, so that they may exercise a mutual influence upon each other, promotive of proper caution. (Chicago and Eastern Illinois Railroad Co. v. Kneirim, supra, and cases cited therein; Wenona Coal Co. v. Holmquist, supra, and cases cited therein).
The clause: “so that they may exercise a mutual influence upon each other promotive of proper caution;” qualifies both of the preceding clauses which are separated by the disjunctive, “or.” To be fellow-servants they must be directly co-operating with each other in the particular business in the same line of employment, so that they may exercise a mutual influence upon each other promotive of proper caution. (Chicago and Alton Railroad Co. v. Swan, 70 Ill. App. 331). That this is the proper construction of the definition, laid down in the books, of fellow-servants will appear from the reasons lying at the basis of that definition, as given in the case of Chicago and Northwestern Railroad Co. v. Moranda, 93 Ill. 302, which is the leading case in this State upon the subject of fellow-servants, and the foundation of all the subsequent decisions of the court upon that subject.
Co-operation means working together (con together and opus work). The two clauses draw a contrast between, or set over against each other, co-operation in a particular business and habitual association in the performance of duties. But whether the co-operation is in a particular business in the same line of employment, or there is habitual association in the • performance of duties, in either case the situation of the parties must be such that they may exercise a mutual influence upon each other promotive of proper caution. Persons can be directly co-operating with each other in a particular business in hand, and still not be in such a position that one could influence the other so as to make him cautious. Two persons may be directly co-operating with each other in running a train, as a brakeman on a train and as a train dispatcher, and yet they would not be regarded as fellow-servants because one cannot influence the other for cautfon. One is a superior servant to the other, or one is a vice-principal over the other. Two persons may be directly co-operating with each other in the particular 0 business in hand, and not be near each other, or have anything to do with each other, as, for instance, one person may be running one train of cars on the Illinois Central railroad in the State of Louisiana, and another in the State of Iowa. While they would both be co-operating with each other in the particular business of running trains on one railroad, they would not be fellow-servants under the rule laid down in the Illinois cases.
The Appellate Court, in their finding of facts, make application of a faulty definition of fellow-servants. They find that the injury was caused by a person, who cooperated with the appellant in the particular business in hand and in the same line of employment, but not necessarily a person standing in such a relation to the appellant, that he and' the appellant might exercise a muthal influence upon each other promotive of proper caution. Therefore, the finding of facts made by the Appellate Court upon the subject of fellow-servants is not only defective in not indicating whether or not the servant causing the injury was the station agent or the brakeman on the freight train, but also in not applying a proper legal definition in order to determine the facts found.
In addition to what has been said, it cannot be doubted that the injury here was caused in part by the station agent who was not a fellow-servant-. The station agent certainly contributed to the injury by not causing the switch to be closed, when he could have had it closed in time to prevent the injury. Consequently, even if the injury was caused in part by the brakeman on the freight train wTho left the switch open, there were two wrongdoers, one. of whom was jointly liable with the other; and, under this state of facts, the defendant company was liable. Where the negligence of two independent persons results in injury to a third, when neither is sufficient in itself, both are to be treated in combination as the proximate cause of the injury. Where the negligent acts of two persons are, in combination, the proximate cause of the injury, either or both may be held responsible for the corisequences resulting from their combined negligence. Where the neglig-ence of the master is combined with the negligence of a fellow-servant in producing the injurious result, and neither is the efficient cause alone, the master as well as the fellow-servant is liable. In other words, where the negligence of the master, whether due to his own fault or that of his vice-principal, contributes to the injury, the servant is entitled to recover. (Pullman Palace Car Co. v. Laack, supra; Consolidated Ice Machine Co. v. Heifer, 134 Ill. 481; St. Louis Bridge Co. v. Miller, 138 id. 465; Village of Carterville v. Cook, 129 id. 152). The Appellate Court, in view of the testimony in regard to the duties of the station agent, should have made a finding upon the. question whether or not the negligence of the station agent contributed to the injury.
For the errors thus indicated I think that the judgment of the Appellate Court should be reversed, and that the judgment of the circuit court should be affirmed.