| Ill. | Jan 15, 1879
delivered the opinion of the Court:
It is certified to ns, the Appellate Court found “the facts as stated in its opinion,” which is made a part of the record, and as such finding, under our statute, is conclusive, there can be no disagreement in this court as to the facts.
Two propositions of law arising on the facts as found have been discussed: First, was plaintiff engaged in a common employment with Gage, the conductor of the “ wild train ” whose negligence or willfulness was the proximate cause of the injury to plaintiff; and second, was plaintiff injured by one of the ordinary perils of the service in which he was engaged.
As an affirmative answer to the second question will be conclusive of the case, no discussion need be had on the first proposition.
Prior to his last engagement, plaintiff had been in the service of defendant, and while so engaged drove his engine over that portion of the road where the accident occurred. Afterwards he engaged with the Wabash Railway Company, and ran over the same road under regulations adopted by defendant for the government of trains of both companies. On his re-engagement with defendant he was, previous to the accident, quite familiar with the service and with the dangers to which he would be exposed. It was as well known to him as to defendant that trains of both companies would be run over this portion of defendant’s road by employees of the different companies, selected and paid by them respectively. Of course he knew the employees of the Wabash Bailway Company would be selected by that company without consulting defendant, to run their trains upon this portion of the railroad, subject only to the rules established by defendant to secure the safety of the service, as far as practicable. One of the hazards incident to the service in which plaintiff was engaged was, the fact the employees of the respective companies might be negligent in the observance of the rules adopted to govern the running of trains. Defendant had adopted rules and regulations as to the operation of trains, which, had they been observed strictly, Avould have avoided the injury to plaintiff. More than that it could not do. Plaintiff was under as much obligation to anticipate the employees of the Wabash Company might become negligent in the observance of their duties as Avas defendant. Neither could know the employees of the lessee company would always observe due care and conform strictly to the rules and regulations as to running trains. Plaintiff must be held to have known as well as defendant that any negligence on the part of the servants of the Wabash Company in that regard would expose him to imminent danger. If any difference, his means of knowledge of these matters Avere better than those possessed by defendant. He had been familiar with the manner of running trains over that portion of the road for years, and with full knowledge of all the dangers incident to such employment, and to which he Avould be exposed, he voluntarily chose to engage in it. The laAV is, an employee, when he enters upon any service, assumes all the ordinary hazards arising from the performance of the- duties of his voluntary engagement.
The running of trains is known to be a dangerous occupation, and that in which plaintiff was engaged Avas, no doubt, rendered more so by reason of the fact trains were run over the same track by two distinct companies. But it can not, Avith any shoAV of reason, be claimed that plaintiff Avas injured by anything that defendant did to render the service more dangerous than it was known to him to be before he engaged in it. Opportunity Avas afforded him to ascertain and become familiar with the work to be performed and the peculiar dangers to which he would be exposed, and knowing them as well as he did, the law is well settled he assumed all the ordinary risks incident to his engagement. The negligence of the employees of the lessee company is one of the hazards against which, it must be presumed, he contracted. There is no warrant in law or in any consideration that concerns the public welfare, for the proposition that defendant impliedly contracted with plaintiff that the employees of the lessee company would observe strictly the rules adopted to secure safety in the running of trains over the road in which both companies were engaged. Experience teaches that in no service do the employees always observe due care. In railroad as well as other hazardous labor, every cautious person can not but anticipate that there may be omissions of duty on the part of employees that might expose co-employees to injuries. Such are among the ordinary exposures, and if a party is unwilling to assume such risks he must not engage in the service. It is a matter of no consequence whether plaintiff was in a common employment with the servant of the lessee company whose negligence or willfulness caused the injury. Plaintiff was not injured by any cause outside of the ordinary perils of the service in Avhich he was engaged. He Avas exposed t.o no new dangers by any negligent conduct of defendant that he could not have anticipated before he entered upon the performance of his engagement. The cases in this court are conclusive of this view of the law. Indianapolis, Bloomington and Western Railroad Co. v. Flanigan, 77 Ill. 365" date_filed="1875-01-15" court="Ill." case_name="Indianapolis Bloomington & Western R. R. v. Flanigan">77 Ill. 365; Chicago and Northwestern Railroad Co. v. Ward, 61 id. 131.
The judgment must be affirmed.
Judgment affirmed.