Metropolitan West Side Elevated R. R. v. Skola

Mr. Presiding Justice Sears

delivered the opinion of the court.

The only questions presented are, first, as to the sufficiency of the evidence to sustain the verdict of the jury, and, secondly, as to the refusal of the court to give certain instructions tendered by counsel for plaintiff in error.

It is contended that the evidence is insufficient to support the verdict, because, it is claimed, it appears from the evidence that McCrumb, who drove the train of cars upon the track where Triska, plaintiff’s intestate, was at work under a standing car, was, in so doing, acting as a fellow-servant of Triska. Hence, it is argued, the negligence which caused the injury was the negligence of a fellow-servant, and that fact appearing from undisputed testimony, as it is claimed, the court should have directed a verdict for the defendant, plaintiff in error here.

McCrumb was foreman of the gang of men among whom Triska worked. He was Triska’s foreman; and it is conceded that in setting Triska to work under the car in question, his act would be held to be that of a vice-principal of the master, viz., plaintiff in error.

But it is contended that one may occupy the position of foreman and yet perform service for the common master in the capacity of a fellow-servant of those over whom he is in some respects foreman. In other words, McCrumb, though acting as foreman and vice-principal of the master in setting Triska at work under the standing car, might have joined him in his work there, and while performing common service with him, have occupied for the time the position of a fellow-servant.

The soundness of the propositions of law which are advanced as a part of this argument of counsel, can not be questioned. It is true that the mere fact that one of a number of employes of a common master, who are in the habit of working in the same line of employment, has the direction, and control of the others as a foreman in respect to such employment, will not of itself and under all circumstances make the common master liable for the acts of negligence of such governing servant by which another of such employes is injured. In order to make the master liable, his act of negligence must be an act in the line of his service as a foreman. If his act of negligence be one done in the course of service as a fellow-servant, and not in any relation to his service as a foreman and governor of . the other workmen, the master will not be liable for injury to a fellow-laborer through such negligence, unless it be for some negligence of the master in employing or retaining him. C. & A. R. R. Co. v. May, 108 Ill. 288; Gall v. Beckstein, 173 Ill. 187, and cases therein cited.

And it is also true, as contended, that if it appear from conceded facts or undisputed evidence, that the relation of fellow-servants exists, then it may become a question of law and be the duty of the court to direct the jury as to their verdict in that behalf. Wabash Ry. Co. v. Brown, 152 Ill. 484; C. & E. I. Ry. Co. v. Driscoll, 176 Ill. 330.

But we must proceed to inquire if the facts of this case make the rules announced in these decisions applicable. Was McCrumb acting as a fellow-servant of Triska, or as vice-principal of the master, when he determined to have the train of cars run upon the track where Triska was at work, and without warning to Triska % We think it very clear that he was acting as foreman and as vice-principal of plaintiff in error when he determined that this train of cars should go upon that track, and that his omission to warn Triska was the omission of the master. And this conclusion is not altered by the fact that instead of ordering Barron to move the train, he chose to do it himself. If, instead of handling the train himself, he had ordered Barron, who usually performed that service, to move the train upon the track in question, and in so doing had failed to give any notice or warning to Triska, it could hardly be doubted that the direction to move the train upon the track without warning to Triska, was the act of a vice-principal of the master. And if, in carrying out his decision to have the train moved there, McCrumb can be said to have been acting as an ordinary workman, and hence as fellow-servant of Triska, the question would arise as to whether there was negligence only in the manner of handling the train, or as well negligence in having a train run upon that track where men were at work under standing cars, without warning to them of its approach.

We think that the jury were warranted in finding from the evidence that McCrumb was not negligent in his handling of the train as temporary motor man. If his testimony is to be credited, he made strenuous efforts to stop the train in time to avoid the injury. But the jury were surely warranted in finding as well that the very act of undertaking to send any train down the track without warning to the men who were working underneath the cars upon that track, was negligent and an efficient cause of the injury.

If McOrumb was also negligent in his handling of the train, and if such negligence was the negligence of a fellow-servant, yet the fact that it concurred in causing the injury would not relieve the plaintiff in error from responsibility for the act of its vice-principal in thus disregarding the safety of its employes by failing to warn them of the fact that trains were about to be moved upon the track. The question of the negligence of McOrumb and the responsibility of the master therefor, was, upon the facts in this case, a question for the jury. C. & A. R. R. Co. v. Swan, 176 Ill. 424.

We think that the verdict is sustained by the evidence.

The remaining question is as to the ruling of the trial court upon instructions.

The first of the refused instructions told the jury in effect that if McOrumb could not, in the exercise of ordinary care, stop the motor car in time to avoid the injury, then the plaintiff could not recover. It was properly refused, for it ignored the question of whether, in the exercise of ordinary care, the train should have been sent upon the track at all without warning to -Triska.

The refusal to give the second was not error, for it was sufficiently covered by the nineteenth instruction given.

The third refused instruction was substantially included in the twenty-second instruction given.

The seventh was covered by two instructions given, viz.j the fourteenth and the eighteenth.

Each of the sixth and eighth refused instructions presents correct propositions and such as should, at the request of either party, be given to the jury. We are of opinion that the trial court should in this case have given them as requested. In substance, they inform the jury that they should not arrive at their verdict through considerations other than of the evidence and the law; that they should not allow prejudice or sympathy to influence their action in this behalf, and that they should not reach a verdict by chance. But while the court should, we think, have given these instructions, yet it does not follow that the refusal should work a reversal. For two reasons we are disposed to disregard the error in refusing to give those instructions: first, because we are of opinion that the evidence clearly warrants the verdict which was returned; and secondly, because of the number of other instructions submitted •to the court and given. Fifty-four instructions were tendered to the court, of which forty-five were instructions offered by the defendant, plaintiff in error here. The court gave twenty-six of these instructions to the jury, seventeen of those given being instructions which were tendered by the plaintiff in error. In the course of these twenty-six instructions, the jury were very thoroughly informed as to just what should guide them in arriving at their verdict. In the nineteenth instruction given, they were directed to disregard any theory or argument as to anything not covered by the specific charges of the declaration, and that they should not consider any ground of recovery other than the specific charges of the declaration. We are of opinion that in view of all these instructions which were given, it may be safely concluded that no prejudice to plaintiff in error resulted from the refusal to give the two instructions indicated.

. Eo question is raised as to other instructions than those noted or as to other rulings of the trial court. The judgment is affirmed.