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From the fact that he heard no previous sound it would seem as if there was no such warning of imminent danger as made it the duty of the appellee to leave his post of duty or to signal the train to stop, and we think that his presence on the grip-car should be considered as in the nature of an additional assurance, if any other were needed, to the appellee, that the crew had done all that was necessary to make the appliances of the car secure against danger. Gibbons also testified that he rode through the tunnel because the grip-car was disabled by the grip having been taken out; that he rode standing up on the floor of the car and leaning against the center post on the right side of the car, a few feet in advance of appellee, and was looking after the condition of the floor of the tunnel. Presumably, if the man-hole cover had been raised or misplaced he would have observed it, but he saw nothing to warn him of danger. It does not appear that the grip machinery itself was broken or out of repair, nor that it needed to be taken out, except for the reason that it could not be safely operated with a loose slide-bar.
"The inferences from all the evidence is, we deem, conclusive that the accident was caused from the defective and loose slide-bar dragging and catching against the iron cover to the man-hole, and that the slide-bar was loose and dragging before the wrecking crew was called, and that the accident would not have happened if the slide-bar had been properly chained up by the wrecking crew before starting through the tunnel, in the manner it was done after the accident."
EGBERT JAMIESON, and VAN VECHTEN VEEDER, for appellant:
Even if it be held that this wrecking crew were guilty of negligence in the performance of a duty, we insist that this defendant cannot be held liable for that negligence, for the reason that the wrecking crew were, under the
uncontroverted facts in this case, fellow-servants with Dwyer. Railway Co. v. Moranda, 93 Ill. 302; Railroad Co. v. May, 108 id. 298; Rolling Mill v. Johnson, 114 id. 64; Abend v. Railroad Co. 111 id. 203; Railroad Co. v. Keefe, 47 id. 108; Railway Co. v. Britz, 72 id. 257; Railroad Co. v. Geary, 110 id. 383; Valtez v. Railway Co. 85 id. 501; Railway Co. v. Murphy, 53 id. 336; Railroad Co. v. Touhy, 26 Ill. App. 99; Miller v. Railway Co. 24 id. 326; Railroad Co. v. McDonald, 21 id. 409; Railroad Co. v. Henry, 7 id. 322; Railroad Co. v. Schuring, 4 id. 533.
BARNUM, HUMPHREY & BARNUM, for appellee.
Mr. JUSTICE CARTER delivered the opinion of the court: The foregoing, from the opinion of the Appellate Court delivered by Mr. Justice SHEPARD, contains a full and clear statement of this case, and as all questions of fact have been finally settled by the judgment of that court, and as the principal questions of law relating to the instructions raised by counsel in this court have heretofore been determined by this court in other cases, this appeal may be disposed of within narrow limits.
But two points are made in this court by appellant. First, that the trial court erred in refusing to give to the jury the following instruction: "The jury are instructed, as a matter of law, that where a party has been injured for the want of ordinary care, such as a reasonable or prudent person would have exercised under the same circumstances, he cannot recover unless the injury is wantonly and willfully inflicted. And so, if the jury believe, from all the evidence in this cause, (there being no proof or claim herein of wanton or willful injury,) that the plaintiff did not exercise ordinary care at the time of sustaining the injury complained of, then they shall find for the defendant;" second, that the court instructed the jury erroneously upon the doctrine relating to vice-principals.
As to the first question, it is sufficient to say that the substance of the refused instruction was fully contained
in others given at the request of the defendant. By the fifth instruction the jury were told that the plaintiff could not recover unless it appeared, from a preponderance of the evidence, that the plaintiff exercised reasonable and ordinary care for his own safety, and the tenth, also given, was as follows:
10. "The jury are instructed, as a matter of law, that an employee himself must use due care and caution to avoid injury; and if he voluntarily exposes himself to any danger that he knew, or by reasonable attention or the exercise of ordinary prudence might have known, he thereby assumes all risks, and cannot recover for any injury resulting from his own acts."
The following instructions were also given:
14. "The court instructs the jury that it was the duty of the plaintiff, before starting the car, to examine those parts of the grip-car which appertain to the grip and brakes, and if he failed to do so, and his failure directly contributed to the injury, he cannot recover for any injury occasioned to him because of any defect in the grip, brakes or appurtenances thereof.
15. "If the plaintiff, by the use of ordinary care, could have discovered that the wrecking crew had not properly repaired the car, and if he failed to use such care, and that his failure so to do contributed directly to the injury, he cannot recover, and the burden of proving the use of such care is on the plaintiff."
Why should complaint be made because the court refused to multiply instructions on the same point?
As to the second point, it is claimed the following instruction, which was given on the court's own motion,
"You are also instructed, that when an injury results to a servant from an order improperly given or act negli gently done, and the person who gives the order or does the act is in the performance of a duty the breach of which by the master, in person, would create a liability,
and he is clothed with apparent authority in that respect, and the order given or act done is within the scope of the apparent authority, the master is responsible in damages to the injured servant, if the injured servant is in the exercise of due care and caution for his own safety. It is immaterial whether the person exercising the authority was known as a foreman or by any other title, if he is clothed with apparent authority to direct and command, and the injured servant in good faith obeys and performs, the person so exercising such authority is not, as to the person injured, a fellow-servant, in the sense that the common master is relieved of responsibility for injuries resulting from his imprudent conduct or negligent act."
And in the same connection it is claimed that the court erred in modifying, and giving as modified, the sixteenth instruction asked by the defendant. This is the instruction, with the modification in italics:
16. "The jury are instructed, as a matter of law, that even if they believe, from the evidence, that the sliding bar was down on the left side of the car at the east end of the tunnel, and if they further believe, from the evidence, that the same sliding-bar was down at the time the plaintiff was injured, and that such sliding-bar being out of repair was the cause of the plaintiff's injuries, yet if the jury further believe, from the evidence, that the plaintiff, in the exercise of ordinary care, could have known, at the east end of the tunnel, that the sliding-bar in question was not repaired, then the court instructs the jury, as a matter of law, that the plaintiff assumed such peril and risks, and cannot recover in this case, unless you further believe, from the evidence, that the plaintiff proceeded with the car in obedience to the orders of a superior who was authorized to give orders in behalf of defendant, and that the danger was not of such a nature as to threaten immediate injury, and that a reasonably prudent man in the position of plaintiff would be justified in presuming that by the exercise of extraordinary care and caution he might proceed with safety,
and that the plaintiff exercised that degree of care commensurate with the probable danger. What the facts are in these as in all other respects you must decide from a fair preponderance of all the evidence."
Counsel's criticism may be best stated in their own language, thus: "We contend, as applied to the facts in this case, that plaintiff's instruction number 6, and defendant's sixteenth instruction as modified, were manifestly erroneous, and calculated to mislead the jury as to the elements necessary to constitute a superior officer or vice-principal. Instruction 6, which was given on behalf of the plaintiff, charges that 'it is immaterial whether the person exercising the authority was known as a foreman or by any other title, if he is clothed with apparent authority to direct and command.' This was manifestly unfair to the defendant. One may be clothed with a limited or special authority, and yet, if the negligence with which it is sought to charge the master did not in any way arise out of or result from the performance of his particular authority, the master will not be liable. In this case we have seen that Smith was, in one sense, the superior of everybody. In the spacing out of the cars going westward through the tunnel he had unquestioned authority over these gripmen, but he had nothing whatever to do with the condition of this grip, -the active force in this accident."
We do not think these instructions are open to the criticism made. If, in accordance with the meaning of the instruction, Smith was clothed by the defendant with apparent authority over the plaintiff in the respect mentioned, then he was not "clothed with a limited or special authority," as supposed by counsel, the exercise of which in no way operated to cause the injury. In considering these instructions it is proper to notice that the court, at defendant's request, also instructed the jury as follows:
11. "The jury must not presume that Smith, the starter, was the superior over the plaintiff. Unless they