dissenting:
The defendant asked the court to instruct the jury that the plaintiff had failed to make out a case under the first count of his declaration and that the jury should disre: gard that count. The court refused to give the instruction and the defendant excepted. That count did not allege that the plaintiff was an employee of the defendant, but averred that the defendant was possessed of the intersecting street railway tracks in the streets; that while a train of street cars on Cottage Grove avenue was passing over the intersection at Sixty-third street, the defendant, by its servants, negligently operated and propelled a street car on Sixty-third street so that it ran into and struck said train of cars, and that the plaintiff was then and there standing upon one of the cars of said train and in the exercise of due care for his own safety, and was struck and injured. It alleged that while the plaintiff was standing on one car of defendant he was struck by another car, but it did not allege that he was a passenger, that he was rightfully on the car, or any other fact which would raise a duty on the part of defendant to observe care for his safety. If it was a fact that he was on the street car as a trespasser it would have been entirely consistent with the allegations of that count. As it did not state any cause of action the court erred in refusing to instruct the jury to disregard it, and in advising the jury, in substance, by the second instruction, that the plaintiff could recover if he had made out his case by a preponderance of the evidence as laid in the declaration, which included the first count. That count did not disclose the relation existing between the parties, but the evidence introduced by the plaintiff showed that he was a conductor in the employ of defendant and engaged in its service, and that the injury was occasioned by an electric car on Sixty-third street, under the management and control of other servants of the common master. When the evidence established the relation between the parties, the law regulating the duties and obligations between master and servant governed and fixed the rights of the parties. Whatever duties the defendant owed to the plaintiff were the duties of a master toward a servant, which that count failed to, allege, and if the count had been good the evidence did not sustain it.
A similar request and instruction were tendered as to the third count, which alleged that the defendant was possessed of the railway tracks which intersected each other at the street crossing; that it operated a train of street cars upon the tracks in Cottage Grove avenue and a trolley car along the tracks on Sixty-third street, which train and trolley car were both in charge of its servants; that the plaintiff was a servant of defendant as conductor on the rear car of the Cottage Grove avenue train; that the trolley car was operated by a servant employed by defendant as a motorman, and that the motorman negligently operated and managed the trolley car on Sixty-third street so that it ran into and struck said rear car on the Cottage Grove avenue train and injured plaintiff, who was in the exercise of due care for his own safety. It alleged that the plaintiff was injured through the negligence of another servant of the common master, and did not allege that they were not fellow-servants, either by a direct averment of that fact or by such statement of their duties as would show that they were not fellow-servants. In order to state a cause of action it was necessary to allege, directly or by intendment, that the servant charged with negligence was not a fellow-servant. (Joliet Steel Co. v. Shields, 134 Ill. 209; Schillinger Bros. Co. v. Smith, 225 id. 74.) The court erred in not instructing the jury to disregard that count, and neither of the counts on which the case'was submitted to the jury stated a good cause of action. On the motions to disregard those counts the court could not consider the question that either would be good after verdict.
The defendant also presented to the court, at the close of all the evidence, a motion in writing asking the court to instruct the jury to find it not guilty, and presented a written instruction to that effect, which was refused. We think the instruction should have been given, for the reason that the evidence conclusively proved that the plaintiff and motorman were fellow-servants. The facts upon which the relation depended were not controverted, and we do not see how different conclusions could be drawn from them. The intersection of the tracks was at a transfer point, which the cars frequently crossed. There were rules of the defendant regulating the duties and conduct of the servants in charge of the defendant’s cars. If two cars arrived at the crossing at the same time the cable train had the right of way, and it was the duty of the motorman to stop the electric car and let the cable train pass. If the electric car arrived at the crossing far enough in advance of a cable train to permit crossing with safety it would proceed over the crossing. If the way in front of the cable train was obstructed or there was doubt or uncertainty whether the electric car should attempt the crossing, it was the custom for the motorman and gripman to signal each other. There was no controversy over the fact that the trainmen on the Sixty-third street line, and the trainmen on the Cottage Grove avenue line were crossing the intersection very frequently, and were liable to meet there any minute, day or night, in the performance of their duties, nor that each set of trainmen had every opportunity to observe the manner in which their respective duties were performed at the intersection, in accordance with the established rules or by means of signals, nor that the safety of one train crew depended upon the care, caution and obedience, to the rules of the other. The fact that the electric cars were kept in one barn and the grip-cars in another as a matter of necessity, and that they started from such barns, is of no more significance than the fact that two engines in a switch yard are kept in different round-houses. Of course, the electric car could not run on a cable or a cable car by means of a trolley, but whether the barns were close together or not was of no importance. The fact that the men started from such separate barns no more determined their relations when performing their usual duties than would the fact that they lodged at different houses or lived at separate places when not at work. The fact that they were under different foremen did not affect their relation, if the duties of the trainmen on the electric car line and those on the cable car line brought them into habitual association, so that they might exercise influence over each other promotive of proper caution. (Chicago and Eastern Illinois Railroad Co. v. Driscoll, 176 Ill. 330; Illinois Steel Co. v. Coffey, 205 id. 206.) The fact of personal acquaintance or individual association does not determine the relation. World’s Columbian Exposition v. Lehigh, 196 Ill. 612; Illinois Steel Co. v. Coffey, supra; Chicago City Railway Co. v. Leach, 208 Ill. 198; Chicago and Eastern Illinois Railroad Co. v. White, 209 id. 124; Chicago Union Traction Co. v. Sawusch, 218 id. 130.
The conductor and motorman in this case were not employed in different departments of the service but were in the same department. What constitutes different departments of railway service is clearly shown by numerous decisions which illustrate the doctrine, among which are the following: A brakeman on the road and foreman of a round-house.-—Chicago and Alton Railroad Co. v. Shannon, 43 Ill. 338. A locomotive fireman and track repairers.-Chicago and Northwestern Railway Co. v. Swett, 45 Ill. 197. A brakeman and men placing an awning at a station.—Illinois Central Railroad Co. v. Welch, 52 Ill. 183. A brakeman and car inspectors.—Chicago and Northwestern Railway Co. v. Jackson, 55 Ill. 492. A fireman and servants placing a mail-catcher too near the track.— Chicago, Burlington and Quincy Railroad Co. v. Gregory, 58 Ill. 272. A carpenter and locomotive engineeer.—Ryan v. Chicago and Northwestern Railway Co. 60 Ill. 171. A switchman and car inspectors.—Toledo, Wabash and Western Railway Co. v. Fredericks, 71 Ill. 294. A track repairer and locomotive engineer.—Pittsburgh, Ft. Wayne and Chicago Railway Co. v. Powers, 74 Ill. 341, and Toledo, Wabash and Western Railway Co. v. O’Connor, 77 id. 391. A section hand and train crew.—Chicago and Northwestern Railway Co. v. Moranda, 93 Ill. 302. A common laborer under the control of the assistant foreman of a rolling mill and other servants under the control of the yardmaster in a switch yard.—North Chicago Rolling Mill Co. v. Johnson, 114 Ill. 57. A section hand at a station in his usual labors and those in charge of a construction train.—Chicago and Alton Railroad Co. v. Kelly, 127 Ill. 637. A section foreman repairing a bridge and a train crew.—Peoria, Decatur and Evansville Railway Co. v. Rice, 144 Ill. 227. A fence builder and a locomotive engineer.— Louisville, Evansville and’ St. Louis Consolidated Railroad Co. v. Hawthorn, 147 Ill. 226. A wrecking crew and grip-man.—West Chicago Street Railroad Co. v. Dwyer, 162 Ill. 482. Not only were the plaintiff and motorman servants of the defendant operating in the same department of the service, but the evidence was uncontroverted that the men on the two lines were in the habit of meeting at the intersection and might be expected to meet there at any time, and that the men on one line had every opportunity to observe the manner in which the men on the other line performed their usual duties. We do not see how it could be said that different conclusions could be drawn from such state of facts.
The court instructed the jury, at the request of plaintiff, that they might consider the fact that any witness was, or had been, in the employ of either plaintiff or defendant in determining the weight which ought to be given to the testimony of such witness. No employee of the plaintiff testified, and the only witnesses to which the instruction applied or was intended to apply were witnesses of the defendant. The employee may have no interest whatever in the result of a suit, and the fact that he is employed does not establish such interest or justify the jury in discrediting him. The testimony of an employee is to be treated the same as that of any other witness, (Cicero and Proviso Street Railway Co. v. Rollins, 195 Ill. 219,) and in this case there was an. absence of any possible interest in any employee who testified. The instruction would have the effect to discredit the testimony of the motorman as to his efforts to stop the car, and the testimony of other employees of the defendant that it was the duty of a conductor to give out transfers before he came to the transfer point, so that he would be on the rear platform in compliance with the rules of the defendant, and that the plaintiff was guilty of negligence in being where he was.
In our opinion the judgments of the Appellate Court and superior court ought to be reversed.
Mr. Justice Dunn, also dissenting.