delivered the opinion of the court.
Appellant’s counsel contend that inasmuch as it is averred in the declaration that James O’Connor was in the employ of appellant, as bridge tender, to have charge of the machinery and operation thereof, and to raise and lower the bridge, it was incumbent on appellee to prove that O’Con-nor was actually operating the bridge at the time of the accident, and was guilty of negligence. While we do not think this follows, we think the evidence is sufficient to show negligence of O’Connor. It was clearly his duty, as the regularly appointed bridge tender, to use ordinary care to so operate the bridge as not to injure appellee, the latter being in the discharge of his duty and in the exercise of care for his personal safety. O’Connor’s duty required that he should either assist in the operation of the bridge, or at least supervise its operation. It is apparent from the evidence that he was not on or at the bridge at the time of the accident. Whether he ever assisted in or supervised the operation of the bridge does not appear from the evidence. McDonald and O’Brien, whom O’Connor hired to actually operate the bridge, were mere instrumentalities used by him for that purpose, and O’Brien’s negligence was his negligence.
The case having been discontinued as'to O’Connor, the declaration is to be read as charging negligence against appellant only.
Appellant’s second contention is, that O’Connor or O’Brien or Kennedy, or whoever was operating the bridge, and the appellee, were fellow servants. In Gatham v. City of Chicago, 127 Ill. App., 150, which was an appeal from a former judgment in the cause, the question was presented whether Kennedy, who was operating the bridge under the direction of O’Brien, was a fellow-servant of appellee, and we held, Mr. Justice Brown delivering the opinion, that it could not be held, as matter of law, that they were fellow-servants; but that the question whether or not they were such was for the jury to find from the evidence. The evidence bearing on that question was substantially the same on that appeal as in the record now before us. Therefore, the question is res adjudicata in this court. Geiman v. Town of Browning, 87 Ill. App., 418; Newberry v. Blatchford, 106 Ill., 584; 591-2, and cases cited. On the last trial the question whether appellee and O’Brien were fellow-servants was submitted to the jury by instructions given at appellant’s request, and the jury, by their verdict, found that they were not. We concur in that finding’.
It is next contended by appellant’s counsel that appellee assumed the risk. It is uncontroverted that appellee, before he went below the bridge, told O’Brien that he was sent to make a measurement, and that he would take one first, and when he would have done so, he would give to him, O’Brien, a signal to lift the bridge, and another to lower it when he, appellee, would be through, and that O’Brien agreed to that arrangement. Appellee knew that the place in which it was necessary for him to be, to take the first measurement, would be safe while the bridge remained stationary; but if the bridge should be raised and the machinery thereof set in motion, it would be a dangerous place in which to be. He was unwilling to assume the risk of this danger, and by his arrangement with O’Brien did all in his power to avoid the risk. Therefore, the proposition of counsel is, that appellee assumed the risk of O’Brien raising the bridge without any signal from him, wrhich O’Brien had specifically agreed not to do. We regard the proposition as a good illustration of the quintessence of nonsense.
Excluding the hypothesis that appellee and the operator of the east half of the bridge were fellow-servants, and the hypothesis that appellee assumed the risk, it is not argued or claimed that the appellant is not liable. Therefore we might, in accordance with the well-settled rule that matters not argued are waived, omit, in this opinion, further consideration of the question of appellant’s liability, But the question being an important one, we will briefly consider it. What is appellant’s duty in respect to the bridge in question? Van Buren street bridge is a part of the street, and the city owes the same duty in respect to it that it does to other parts of Van Buren street. 2 Dillon on Mun. Corp., 4th ed., p. 881, section 728; City of Chicago v. Powers, 42 Ill., 169; City of Chicago v. McGinn, 51 ib., 266; Pres’t & Trustees, etc., v. Meredith, 54 Ill., 84; Gavin v. City of Chicago, 97 ib., 66, 70; City of Chicago v. McDonald, 57 Ill. App., 250, and cases cited. That duty is to exercise ordinary care to maintain the bridge in a reasonably safe condition for public travel. But manifestly there is an additional duty in the case of a movable bridge such as the one in question. The city has the exclusive control, management and operation of the Van Burén street bridge, and it is incumbent on it to exercise ordinary care in the operation of the bridge, to reasonably operate it so as to avoid injury to persons and property. And if one, without fault on his part, is injured by reason of the city’s negligence in the operation of the bridge, we think it necessarily follows that the city is liable. Suppose that while persons and teams were on the bridge and others approaching it for the purpose of passing over it, that the city, without warning, •¡as by ringing a bell or otherwise, should suddenly and unexpectedly raise the bridge, carrying up persons thereon, and in consequence thereof some of such persons should be injured, without, fault on their part; can it be doubted that the city would be liable? In the present case there was not only the absence of any warning to appellee, but an express agreement that the bridge would not be raised without a signal from him, and he gave no signal. The duly of the city to exercise ordinary care in the operation of the bridge is a primary, duty, of which it cannot divest itself so as to avoid liability for negligence in its operation and consequent injury. Kreigh v. City of Chicago, 86 Ill., 407. The action was properly brought against the city. Tift v. Towns, 53 Ga., 47.
Lastly, counsel contend that each of the instructions 2, 3, 5, 6 and 7, given at appellee’s request, is erroneous. Instruction 2 is as follows:
“If the jury believe from the evidence in this case that one O’Connor was the bridge tender for the bridge in question, regularly appointed as such by the defendant, city of Chicago; that one. O’Brien was appointed as assistant bridge tender of said bridge by said O’Connor in his capacity as said bridge tender, and that he, said O’Brien, was paid his wages or salary, if any, by said O’Connor; and if the jury further believe from the evidence that the city of Chicago, by its superintendent of bridges, if any, or by some of its officers, if any, other than said O’Connor, had the right to discharge said O’Brien, then the jury are instructed that said O’Brien was at the time of the accident testified to in this case a servant of the city of Chicago.”
The question presented by this instruction is not free from difficulty. The evidence is that it required at least two persons to operate the bridge, by reason of the fact that there was separate machinery for the operation of each leaf of it, and at each end a controller for letting on and regulating the power by which the machinery is moved, and the city must have known that it was necessary for O’Con-nor to employ at least one man, and that, in fact, he employed two, McDonald and O’Brien. Patrick White, superintendent of bridges, knew, as his testimony shows, that O’Connor employed two men to operate the bridge, and his knowledge was, in law, the city’s knowledge. White testified that his duty was to see that the bridge tenders attended to their business, and that he had authority to discharge any one whom he saw operating the bridge improperly, no matter who he was. It is true that O’Brien was hired and paid by O’Connor, and that it was in O’Connor’s power to discharge him, but we are not prepared to hold from that circumstance, that he was not the servant of the city, which knew of his employment, the necessity for it, impliedly acceded to it, and had the power, by its bridge superintendent, to discharge him.
In Wood’s Law of Master and Servant, section 317, it is said: “The real test by which to determine whether a person is acting as the servant of another is, to ascertain whether, at the time when the injury was inflicted, he was subject to such person’s orders and control, and was liable to be discharged by him for disobedience of orders or misconduct.”
In Johnson v. Ashland Water Co., 71 Wis., 553, the plaintiff, Johnson, was employed, temporarily, by the defendant’s servant in charge of its work, and while so employed was injured. Held, that the plaintiff was defendant’s servant and was entitled to recover, citing numerous authorities. But even if O’Brien was not appellant’s servant, but merely the servant of O’Connor, this would not, as we think, affect the question of appellant’s liability, and the giving of the instruction is not reversible error.
We find no reversible error in any of' the other instructions. Appellant’s 18th instruction was properly refused, for the reason that there is no evidence in the record on which to base it.
The judgment will he affirmed.
Affirmed.