Chicago & Alton Railroad v. Swan

Mr. Justice Wilkin delivered the opinion of the court:

The first and principal contention of counsel for appellant is, that the declaration is insufficient to sustain the judgment. It is objected that it fails to allege that the plaintiff and the engineer, through whose negligence it is claimed he was injured, were not fellow-servants. Such an averment was unnecessary. (Cribben v. Callaghan, 156 Ill. 549 ; Louisville, Evansville and St. Louis Railroad Co. v. Hawthorn, 147 id. 226; Libby, McNeill & Libby v. Scherman, 146 id. 540.) The facts showing the relation of the parties are stated in the declaration. It is never necessary to aver mere matters of conclusion. Taylor v. Felsing, 164 Ill. 331 .

But it is said the facts so alleged show the relation of fellow-sérvants to have existed. This position is only tenable, if at all, upon the ground that the engineer of a passenger train and the baggage-master on the same are, per se, fellow-servants at all times and under all circumstances, which is not true. Taking the rule in this State for determining whether employees are fellow-servants in the sense which will relieve the common master from liability for an injury to one through the negligence of the other to be as quoted in Chicago and Eastern Illinois Railroad Co. v. Kneirim, 152 Ill. 458 , two tests of the master’s liability under that rule are assumed to exist: First, “where they are directly co-operating with each other in a particular business in the same line of employment;” and second, “where their duties are such as to bring them into habitual association, so that they may exercise a mutual influence upon each other promotive of proper caution.” As thus construed, the qualifying words, “so that they may exercise a mutual influence upon each other promotive of proper caution,” have mo application to the first, but are limited entirely to the second. Under this construction, and further assuming- that an engineer and a baggage-man on the same train do, as a matter of law, directly co-operate with ea"ch other in the business (of running the train) in the same line of employment, the conclusion is reached that plaintiff and the engineer who negligently injured him are shown by the declaration to have been fellow-servants of the defendant. Whatever may be said of the correctness of the construction tested by strict grammatical rules, it is unsound in law, under the decisions of this court. The reason for the rule, definitely settled in this State since the Moranda case, ( 93 Ill. 302 ,) is wholly inconsistent with the restricted construction here contended for, as shown by the cases cited in the opinion .of the Appellate Court by Justice G-ary.

We do not understand that the Kneirim case, supra, or Leeper v. Terre Haute and Indianapolis Railroad Co. 162 Ill. 215 , in view of the matters there under consideration, conflict with this conclusion. The quotation from 53 Ill. 336 , in the Leeper case, was perhaps unnecessary, and more liable to mislead than make clear the point under consideration, but it sufficiently appears from the whole opinion that it was not intended, by the use of that language, to give a definition of the term “fellow-servant.” The same language had been criticised as such a definition in the Morando, case, and was well understood as not conforming to the rule then announced and since adhered to.

Neither do we assent to the view that under the facts stated in this declaration plaintiff and the engineer in charge of the locomotive drawing the train were necessarily fellow-servants, even under the rule as interpreted by counsel. Whether different servants of the same master are fellow-servants, within the legal signification of that term, is a question of fact, to be determined by the jury from all the circumstances of each case. (Mobile and Ohio Railroad Co. v. Massey, 152 Ill. 144 ; Louisville, Evansville and St. Louis Railroad Co. v. Hawthorn, supra; Chicago and Alton Railroad Co. v. House, 172 Ill. 601 ; Lake Erie and Western Railroad Co. v. Middleton, 142 id. 550.) The definition of fellow-servants is a question of law. Whether a given case falls within that definition is a question of fact. (See the foregoing cases, and also Springside Mining Co. v. Grogan, 169 Ill. 50 , and Pittsburg Bridge Co. v. Walker, 170 id. 550.) In determining whether the relation exists it is often necessary to determine many facts, some of which are recited in the opinion in the Morgenstern case, 106 Ill. 216 .

It is difficult to see upon what theory it can be held that a baggage-man, as such, has any control over the movements of the train upon which he is employed or anything to do with the running of the same. Proof that one was a baggage-man and the other an engineer would, of itself, justify the inference that they were not directly co-operating with each other in the business of running the train, and hence not fellow-servants under our rule. But in this case the plaintiff testified that his duties as baggage-man were to handle baggage and railroad letters, and anything of that kind pertaining to railroad business in his car; that he had nothing to do outside of the car, and that the conductor or engineer had no control over him in the performance of his duties; also, that he was hired by the general baggage agent, and instructed that his place was in the baggage car; that he had never been required to get out and perform other duties for the trainmen, and that it was not the custom for baggag'e-men to do so. There was, as a matter of fact, no co-operation between him and the engineer.

The declaration sustains the judgment, and the evidence supports the allegations of the declaration.

We have not, in the view taken of the case, deemed it important to inquire whether the objections urged against the declaration could be made after verdict and without a motion in arrest of judgment, or whether the question of the sufficiency of the evidence to sustain the plaintiff’s cause of action was properly preserved in the record as one of law, so as to be reviewable in this court.

It is urged that the trial court erred in giving the fourth and fifth instructions on behalf of the plaintiff, and refusing the third and fifth asked by the defendant. We think the fourth and fifth were properly given under the facts of the case, and were fair, to say the least, for the defendant. The third of defendant’s instructions was substantially given in another asked by it. The fifth was properly refused because it assumed that a baggage-man and engineer on the same train are, as a matter of law, fellow-servants. We have examined the instructions given to the jury both for the plaintiff and defendant, and are convinced that the defendant has no just grounds of complaint in that regard.

Other objections are made to the ruling of the circuit court on the trial, but we do not regard them as of substantial merit.

We find no reversible errors of law in the record. The judgment of the Appellate Court must be affirmed.

Judgment affirmed.