52 Ill. App. 277 | Ill. App. Ct. | 1893
delivered the opinion of the Court.
The position of the appellee in the narrow space between two trains which were moving in opposite directions in the darkness, was one of great peril. He bore the relation of passenger to the appellant company and was entitled to expect and receive from it and its servants the exercise of the highest degree of skill and care to the end that he should not be injured. The company caused its trains to be so set in motion, and if his presence there was also due to or chargeable to it, no reason is perceived why it ought not to be held answerable to him in damages for his injuries.
The peril to which he was exposed was so obvious that.it ought, in the exercise of ordinary care, have been anticipated, and injury to him apprehended as a natural or at least probable result. It is insisted that the appellant company is not responsible for his being there.
The brakeman, it is said, had no authority, by virtue of his employment in that capacity, to request or direct the appellee to leave the caboose which the company had prepared for its passengers, and accompany or assist him; it is also said that there is no proof that the brakeman had any special power or authority beyond such as arose by virtue of the capacity in which he acted for the company. Hence it is argued that the appellee was there as a mere volunteer or intermeddler, engaged as of Ms own choice in assisting an employe of the appellant company in the discharge of a duty which such employe should have alone performed, and therefore not entitled to recover damages for the injury received. The test of his right of recovery was whether, in going to the place of danger, he exercised such care as an ordinarily prudent and cautious man would exercise for his safety. In deciding as to this the jury were ivarranted in considering not only his acts but also the acts of the brakeman, as an agent of the company, if such brakeman was apparently in discharge of his duty.
It does not appear that the appellee had notice of the authority and duty of the brakeman under the rules and regulations of the company, and in the absence of such notice it is said in L. S. & M. S. R. R. v. Brown, 123 Illinois, 162: “ Those dealing with a company can only judge of the power of its agents and servants from appearances and the position and acts of such employes.”
Whether we accept the version of the appellee or of the brakeman as to the remark of the latter in the caboose, it is indisputable that the appellee did go with him, and did so because he understood that it was desired at least, if not required, that he should accompany him and assist in securing the safety of the horse. Moreover the jury were warranted by the evidence in believing that the brakeman directed the appellee to go with and assist him.
The brakeman assumed and appeared to be invested with power to act in the premises and did so act, and we see nothing to indicate that a prudent and reasonably cautious man would have questioned his authority or had cause or grounds to suspect or fear that compliance with his request or invitation would lead him into danger.
Under ordinary circumstances no danger attended the proposed undertaking. It is said in Pierce on Railroads, 329, that “ the direction or invitation or an assurance of safety given by a servant of the company may so qualify the plaintiff’s act as to relieve it of the quality of negligence.”
Whether, under all the circumstances, the appellee failed to exercise ordinary care was a question of fact for the jury, and under the evidence in the case the finding of the jury is so far justified that it is beyond our power to disturb it. The injury did not arise from a purely accidental occurrence as is suggested, but from the negligence of the company through its servants, in causing the appellee to place himself where he would be exposed to imminent danger from its trains, which it designed to move, and did move, in opposite directions, in such close proximity upon each side of him.
The declarations averred that the appellee was “ ordered by the brakeman to alight from the caboose and assist about the door of the car. "Counsel for the appellant company insist that the proof at most shows but a “ request ” to alight and assist, and that there is therefore a fatal variance between the allegations and the proofs. If, as we have seen, an invitation or request was sufficient to relieve the appellee from the imputation that he had failed to use ordinary care, it follows that it is not material whether he acted upon an “ order ” or " request.”
The supposed distinction thus sought to be drawn between an “ order ” and a “ request ” forms the chief ground of objections to the instructions given in behalf of the appellee, and does not, therefore, demand further notice.
The refusal of the court to give instructions No. 1, 2, 3, 4 and 5, asked in behalf of the appellant company, and the modifications made by the court in instructions No. 1, 2 and 3 that were given in that behalf, constitute the other ground of alleged error.
We have examined all the instructions given, refused and modified, and do not find that reversible error occurred' in the rulings of the court upon them.
The instructions given as a series correctly and fairly stated the law applicable to the case except in so far as those given for the appellant company failed to recognize the doctrine that the power assumed and exercised by the brakeman might be considered by the jury in determining whether the appellee acted with that degree of care demanded of him by the law, but of this defect the appellant can not, of course, complain.
The objections urged against the action of the court in refusing certain instructions asked by the appellant, rest, so far as they are at all important, upon the contention that the brakeman was wholly lacking in power or authority emanating from or binding upon the appellant to act in the matter of requesting or seeking to. induce the appellee to leave the caboose or assist in closing the stock car.
The argument in support of such objections proceeds upon the assumption that the power and authority of a brakeman is limited by, and can only be determined from or by the rules and regulations of the company prescribing his duties and defining his powers; as has been said herein before, our Supreme Court has ruled that in cases such as the one at bar, the power of such an employe may be determined from appearance and from his acts,- and the position he assumes to occupy.
We think there is no error in the record demanding a reversal of the judgment. It is therefore affirmed.
