Wenona Coal Co. v. Holmquist

38 N.E. 946, 152 Ill. 581

• Court: Illinois Supreme Court
• Decided: October 29, 1894
• Status: Published

Opinion

Mr. Justice Magruder

delivered the opinion of the court:

First, it is said that the trial cqurt erred in overruling defendant’s motion to exclude the evidence from the jury and to instruct the jury to find for the defendant. The motion was made after the defendant had introduced its •evidence and rested. Section 52 of the Practice Act, passed in 1872, provides that “hereafter no judge shall instruct the petit jury in any case, civil or criminal, unless such instructions are reduced to writing.” (2 Starr & Cur. Stat. page 1814). Section 53 provides that, “where instructions are asked which the judge cannot give, he shall, on the margin thereof, write the word ‘refused. ’ ” (Idem, page 1815). We find in the record no written instruction which directs the jury to find for the defendant, and which is marked “refused.” (L. S. & M. S. Ry. Co. v. Bodemer, 139 Ill. 596; Pullman Palace Car Co. v. Laack, 143 id. 242 ; J., A. & N. Ry. Co. v. Velie, 140 id. 59). The expressions used in the decisions to the effect that the court was “asked to instruct the jury,” or “requested to instruct the jury,” were intended to refer to requests made by submitting to the court an instruction in writing to be given to the jury. (Ill. Gen. R. R. Co. v. Nowicki, 148 Ill. 29).

The defendant asked, and the court gave in its behalf, 27 instructions, submitting the case to the jury in every variety of aspect and requiring them to determine, according to the preponderance of the evidence, the questions, whether the defendant was guilty of the negligence which caused the injury, and whether the plaintiff exercised ordinary care on his part. If it be admitted that the defendant did not waive its right to complain of the overruling of that portion of the motion, which had reference to the exclusion of all the evidence from the jury, by asking for instructions submitting the case upon the evidence, still we do not think, that the court committed any error in that regard. A motion of this kind should not be sustained, if there is proof tending to establish a cause of action. (Jones v. Fortune, 128 Ill. 518). Here, there is evidence, tending to support the allegations of the declaration, which was sufficient to justify a submission of the cause to the jury. Where a motion is made to exclude the plaintiff’s evidence, or an instruction to the jury to find for the defendant is asked, it is not within the province of the judge to weigh the evidence and ascertain where the preponderance is. His function is strictly limited to determining whether there is or is not evidence legally tending to prove the fact or facts affirmed. He is never authorized to refuse to submit the case to the jury, or to direct a verdict for the defendant, unless the evidence given at the trial, with all the inferences which the jury can justifiably draw from it, is so insufficient to support a verdict for the plaintiff, that such a verdict, if returned, must be set aside. (Frazer v. Howe, 106 Ill. 563; Simmons v. Chi. & T. R. R. Co. 110 id. 340; Bartelott v. International Bank, 119 id. 259 ; C. & N. W. Ry. Co. v. Dunleavy, 129 id. 132; Pullman Palace Car Co. v. Laack, 143 id. 242).

Second, it is claimed that the injury was caused by a fellow-servant of the appellee, and that the appellant was thereby relieved from liability. There is evidence tending to show, that a shipping clerk named Walker in the service of the defendant had in charge the business of switching the empty cars with mules, and placing them upon the down-grade track, so that they would slide along by their own momentum towards the chute where the loading of the cars took place. Walker had the charge, direction and control of the men who did the switching. During the forenoon of the day on which ■ the accident ■occurred, the trains had been bringing up many cars ; “the switch was nearly full of cars; there was hardly room enough to do the switching,” and there was difficulty about placing the cars where they were wanted. Thereupon, Walker ordered an employee, whose regular business was that of a blacksmith, to aid in placing and switching the cars. The proof tends to show that this blacksmith started upon its journey the car, which struck the car being loaded by appellee and injured him. On the other hand, the proof tends to show that appellee was subject to the •orders and direction of a mine boss named Marlin, and that he had been ordered upon that day by Marlin to clean out the clogged coal chute, so as to let the coal run into the bin and load the car, and was engaged in that work when he was injured. In other words, Troedson, the blacksmith, who did the switching which caused the accident, was under the immediate control and direction ■of the shipping clerk, while appellee, who was engaged in loading a car and cleaning a chute when the injury was inflicted upon him, was under the immediate control and \ direction of the mining boss.

Where a master confers authority upon one of his ■employees to take charge and control of a certain class of workmen in carrying on some particular branch of his business, such employee, in governing and directing the movements of the men under his charge with respect to that branch of the business, is the direct representative ■of the master, and not a mere fellow-servant; all commands given by him within the scope of his authority are, in law, the commands of the master; and if he is guilty of a negligent and unskillful exercise of his power and authority over the men under his charge, the master must be held to answer. (C. & A. R. R. Co. v. May, 108 Ill. 288). Whether the shipping clerk, or those acting under his direction, were fellow-servants with the appellee is a question of fact for the jury, although the definition.of fellow-servants may be a question of law. (I. & St. L. R. R. Co. v. Morgenstern, 106 Ill. 216; C. & N. W. Ry. Co. v. Moranda, 108 id. 576; C. & A. R. R. Co. v. Kelly, 127 id. 637; L., E. & St. L. R. R. Co. v. Hawthorn, 147 id. 226). Servants of the same master, one of whom has caused an injury and the other of whom has received an injury, are fellow-servants if, at the time of the injury, they are directly co-operating with each other in the particular business in hand, or if they are brought by their usual duties into habitual consociation, so that they may exercise an influence upon each other promotive of proper caution. (C. & N. W. Ry. Co. v. Moranda, supra; C. & N. W. Ry. Co. v. Snyder, 117 Ill. 376 ; C. & E. I. R. R. Co. v. Geary, 110 id. 383). But whether or not the facts of a particular case bring it within thfe definition thus given of fellow-servants, that is to say, whether the servant causing the injury and the servant receiving the injury are thus co-operating or consociating, is a matter to be determined by the jury. (C. & A. R. R. Co. v. Kelly, supra). Here, the declaration expressly avers that they were not fellow-servants; and the plea of the general issue not only puts that averment directly in issue, but is an admission, in law, upon the record, of the sufficiency of the respective counts to which it is pleaded. (C. & N. W. Ry. Co. v. Goebel, 119 Ill. 515). The question of fact was decided by the trial court in favor of appellee, and the judgment of the Appellate Court affirming the judgment of the trial court is conclusive here as to such fact. (C. & A. R. R. Co. v. Kelly, supra).

Third, error in the instructions given for the plaintiff is complained of. The first instruction is objected to upon the ground, that it does not require the exercise of ordinary care by the plaintiff. This is true, if the instruction is considered by itself, but all the instructions, both those given for the plaintiff and those given for the defendant, must be considered together as one charge. Upon examining the instructions given for the defendant, we find that five of them, distinctly and in express terms, say to the jury that the plaintiff cannot recover unless he shows-that at the time of the injury he was in the exercise of ordinary care. Plaintiff’s first instruction, although unnecessarily announcing the now obsolete doctrine of comparative negligence, is not inconsistent with the five-instructions of the defendant, which require the exercise of ordinary care as a condition to the right of recovery;, and, when it is read in connection with such instructions, it could not have misled the jury. This view is sustained by the following decisions of this Court: Willard v. Swansen, 126 Ill. 381; C., B. & Q. R. R. Co. v. Warner, 123 id. 38; Village of Mansfield v. Moore, 124 id. 133 ; Calumet Iron and Steel Co. v. Martin, 115 id. 358; C. & A. R. R. Co. v. Johnson, 116 id. 206; C., B. & Q. R. R. Co. v. Johnson, 103 id. 512.

It is further objected, that plaintiff’s first instruction assumes as a fact that plaintiff’s negligence was slight. This is certainly not true of the latter part of the instruction, which expressly requires the jury to find from the evidence that the negligence of the plaintiff is slight. The expression, “some slight negligence” is equivalent to-the expression, “some negligence which is slight.” That the use of the words, “which is slight,” in the connection in which they here occur, does not amount to an instruction to the jury that the plaintiff’s negligence is slight, is shown in C. & N. W. Ry. Co. v. Goebel, 119 Ill. 515. The added words merely express that which would be implied without them. The decision in C. & A. R. R. Co. v. Johnson, supra, sanctions an instruction, which told the jury that, if the plaintiff was guilty of some negligence, yet if his-negligence was slight as compared with that of the defendant, and the negligence of the defendant was gross, then plaintiff would not be prevented from recovery on account of his own negligence. But the proper way to instruct the jury is to tell them, that, in order to entitle the plaintiff to a recovery, he must show that, at the time-of the injury, he himself was in the exercise of ordinary care, and the defendant was guilty of such negligence as produced the injury. (Village of Mansfield v. Moore, supra).

Plaintiff’s second instruction is objected to upon the alleged ground, that it does not give the definition of fellow-servants, which is given in C. & N. W. Ry. Co. v. Snyder, supra, and which is the same as that above set forth in this opinion. To state the objection more specifically, it is said that the second instruction leaves out and takes away from the consideration of the jury the element of co-operation or consociation, and is therefore insufficient and misleading. Three instructions for the defendant presented to the minds of the jury the definition of fellow-servants as laid down herein and in the Snyder case, supra. These three instructions contain the element referred to; they expressly require the co-operation and consociation involved in the definition adopted in the Moranda cases, 93 Ill. 302, and 108 id. 576; the second instruction of plaintiff when read in connection with these three instructions merely explained and amplified their meaning. The language of the second instruction is the language used by this Court in Rolling Mill Co. v. Johnson, 114 Ill. 57, where it was said, that the idea of the ruling, which requires co-operation or consociation in order that servants of the same master may be co-employees, “is, that the relations between the servants must be such that each, as to the other, by the exercise of ordinary caution, can either prevent or remedy the negligent acts of the other or protect himself against its consequences; and, of course, where there is no right or no opportunity of supervision, or where there is no independent will, and no right or opportunity to take measures to avoid the negligent acts of another without disobedience to the orders of his immediate superior, the doctrine can have no application.”

We do not think that the instructions upon the subject of fellow-servants, considered as a whole, were inconsistent, or misleading.

The judgment of the Appellate Court is affirmed.

Judgment affirmed.