West Chicago St. R. R. Co. v. Anderson

102 Ill. App. 310, 1902 Ill. App. LEXIS 512

• Court: Appellate Court of Illinois
• Decided: May 23, 1902
• Status: Published

Opinion

Mr. Justice Waterman

delivered the opinion of the court.

In this State when injury results from the negligent operation of a railroad, whether by the corporation to which the franchise is granted or by another corporation or other corporations which the proprietary company authorizes or permits to use its tracks, the company owning the railway tracks and franchise is liable therefor.

The theory upon which this rule is based is that the company which is permitted to use the tracks of another company is regarded, in so using, as the acting servant or agent of the owner company. Pennsylvania Co. v. Ellett, 132 Ill. 654, 659; Chicago & Erie R. R. Co. v. Meech, 163 Ill. 305, 308.

Appellee might, in the first instance, have brought suit against the West Chicago Street Railroad Company, as he did against the Cicero and Proviso Street Railway Company, or he might have brought his action against the two jointly; thus he might have had a recovery against either or both.

Under the law the alleged negligence was that of both companies. Having sued the Cicero and Proviso Company and been defeated in his action against it, can the plaintiff sue and recover against the West Chicago Company %

All of the evidence as to the injury and alleged negligence admissible in one case was admissible in the other; unless a recovery could be had against the Cicero and Proviso Company, the principal, none could be obtained against the West Chicago Company, the agent, for doing only that which it was authorized by its principal to do. Emery v. Fowler, 39 Maine, 326-338.

In Pennsylvania Co. v. Ellett, the Supreme Court say:

“ It follows, therefore, that no other negligence than that of the company or corporation permitted or authorized by the owner company to use its railway, need be alleged or proved to fix the liability of the owner.”

The evidence given in the action against the West Chicago Street Bailroad Company might have entitled the plaintiff to a recovery against its lessor, the owner company.

Actions of trespass may be maintained against all or each of several joint trespassers. The plaintiff may begin and prosecute as many actions as there were trespassers. But if the cause of action in trespass against A, arise entirely out of his conduct as the agent of B, a judgment in favor of B, in an action against him for such conduct of his agent, may be pleaded in bar by A. Wells on Res Judicata, Sec. 63; Castle v. Noyes, 14 N. Y. 329-333; Goodrich v. Hanson, 33 Ill. 499-508; King v. Chase, 15 N. H. 9; Chicago & R. I. Ry. Co. v. Hutchins. 34 Ill. 108; Atkinson v. White, 60 Maine, 396-399; Vigeant v. Scully, 35 Ill. App. 44; Louisville, N. A. & C. Ry. Co v. Carson, 169 Ill. 247-251.

The judgment in favor of the principal (Cicero and Proviso Co.) was properly set up as a bar to the action against the servant (West Chicago Co.) for the same acts and the same injury.

The court should have instructed the jury to find for the defendant.

The judgment of the Superior Court will be reversed with a finding of facts.

Beversed, with finding of facts.