| Ill. | Jan 23, 1884
delivered the opinion of the Court:
"When this case was here before, we reversed the judgment for error of the circuit court in admitting evidence to the effect that the widow and children of the intestate had no other means of support than that of his daily earnings. (Chicago and Northwestern Ry. Co. v. Moranda, 93 Ill. 302" date_filed="1879-09-15" court="Ill." case_name="Chicago & Northwestern Railroad v. Moranda">93 Ill. 302.) Although, as the law then was, we reviewed questions of fact as well as of law, this left no question of fact to be passed upon, and it was not intended to then express any opinion that might prejudice a future trial upon any question of fact involved in the case; but in answer to a point made by counsel for appellant, and to eliminate from previous decisions a rule of law for future guidance, we assumed, as a hypothesis sustained by the evidence in the record, that at the time of the alleged injury the intestate, as„section foreman of a gang of track repairers, and the engineer and fireman on an engine drawing one of appellant’s trains, were not directly cooperating with each other in their respective labors, and that their usual duties did not bring them into habitual consociation, so that they might exercise an influence upon each other promotive of proper caution. As a hypothesis presenting the question discussed, the particulars were as well assumed as if actually true,—for the 'governing rule, -not the sufficiency of the proofs, was the thing to be determined. But it was not intended to be asserted, and obviously it could not be asserted, as a universal truth, for numerous cases may be readily conceived in which there would be either direct cooperation or habitual consociation between and with such servants in a single, continuous work or enterprise, and, as a particular truth, it would be a subject of inquiry upon each trial. The circuit court, upon the second trial, however, gave this instruction to the jury:
“The jury are instructed that a man employed by a railroad company in the capacity of a section foreman, having Oharge and oversight of repairs upon a certain portion of its Q track, is not engaged in the same line of duty with an engineer and fireman running such company’s locomotive engines, and is therefore not within the rule which exempts the common employer from liability to one of its employees for damages resulting from the fault, carelessness or negligence of a fellow-servant or co-employee.”
Even if, when the case was here before, we had found, on the facts then before us, that the intestate and fireman and engineer were not so cooperating or eonsociating at the time of the injury as to exempt the common master from liability for injury received by the one in consequence of the negligence of the other, this instruction ought not to have been given. Whether they were so cooperating or eonsociating is a question of fact for the jury, and not of law for the court. (Wabash Ry. Co. v. Elliott, 98 Ill. 481" date_filed="1881-05-13" court="Ill." case_name="Wabash Railway Co. v. Elliott">98 Ill. 481; Pennsylvania Co. v. Conlan, 101 id. 93; Chicago and Alton R. R. Co. v. Bonifield, 104 id. 223; Indianapolis and St. Louis R. R. Co. v. Morgenstern, 106 id. 216.) In the last named case we said: “The definition of fellow-servants may be a question of law, but it is always a question of fact, to be determined from the evidence, whether the particular case falls within the definition. ”
In the former opinion in this case, ubi 'supra, we held that in order to constitute servants of the same master “fellow-servants, ” within the rule respondeat superior, it is not enough they are engaged in doing parts of some work, or in the promotion of some enterprise carried on by the master, not requiring cooperation nor bringing the servants together or into such personal relations that they can exercise an influence upon each other promotive of proper caution in respect of their mutual safety, but it is essential that they shall be, at the time of the injury, directly cooperating with each other in the particular business in hand, or that, their usual duties shall bring them into habitual consociation, so that they may exercise an influence upon .each other promotive of proper caution. We feel constrained to adhere to this ruling, notwithstanding the very ingenious and able argument of counsel for appellant in favor of its modification.
But it is essential, not only that the rule shall be given to the jury with substantial accuracy, but also that the jurors shall thereupon be left free to form and declare, from the evidence before them, their opinion upon the question of fact. Because the evidence upon a former trial may have justified a particular conclusion of fact, it does not follow that the evidence on this trial justifies the same conclusion, and it is for the jury to determine, and not for the court to assume, what is the conclusion authorized by the evidence. Under our practice it is not admissible for the court to express any opinion to the jury on questions of fact, and it is no less so because the opinion, expressed' may be in conformity with a previously expressed opinion of this court upon reviewing a question of fact. Where there is evidence before a jury upon which it is legally admissible there may be difference of ' opinion, it is error to allow any opinion of judge or court to be obtruded upon the jurors to influence their determination. There was, here, such evidence, in our opinion, and the giving of the instruction was, therefore, clearly erroneous.
On the trial the appellee was permitted to ask of a witness, and the witness was permitted to answer, over appellant’s objection, what the witness considered a safe distance to retire from the track when the trains are passing. This was error. The matter is not such as requires the opinion of an expert. We can not conceive that it can be better known to a man familiar with the operation of railroads than to one ■who is not, that the safe distance is always beyond, and the unsafe distance is always within, the line of danger, and whether the line of danger is at one distance rather than another, depends upon facts, not upon opinions. If there is danger from passing cars, the questions naturally arise, what is its nature ?—how far does it extend ? And the jury being enlightened in these respects, determine for themselves what is a “safe distance.” The witness is not to be allowed to usurp their functions. Hopkins v. Indianapolis and St. Louis R. R. Co. 78 Ill. 32" date_filed="1875-06-15" court="Ill." case_name="Hopkins v. Indianapolis & St. Louis Railroad">78 Ill. 32; Pennsylvania Co. v. Conlan, supra.
A witness occupying the position of road master of a portion of appellant’s road at the time the intestate was injured, being called on behalf of appellant, testified that he had given the intestate instructions a number of times about getting out of the way of trains, etc. Appellee, thereupon, in rebuttal, called the other men, or at least several of them, who worked under the intestate at that time, and was permitted by the court, over appellant’s objection, to prove by them, severally, that the road master gave them no such instructions. This was improper. The road master had not testified that he gave these individuals such instructions, and because he did not do so, or because they did not hear him so instruct the intestate, it does not follow that his testimony is untrue.
For the errors indicated, the judgment will be reversed and the cause remanded.
Judgment reversed.