Pullman Palace Car Co. v. Laack
32 N.E. 285
Ill.
1892
Check Treatment
Mr. Justice Shops

delivered the opinion of the Court:

At the close of appellee’s case in chief, appellant moved the court to instruct the jury to return a verdict for the defendant, and this being denied, again, at the close of the case, ashed and the court refused an instruction directing the jury to find for the defendant. This ruling of the court is assigned as error, and forms the chief ground of complaint in this court.

If there is in the record evidence upon which a verdict for plaintiff may be sustained, the court committed no error in not taking the case from the jury. It is only where the evidence, with all fair and legitimate inferences therefrom, is so insufficient to sustain a verdict for the plaintiff that the court must set it aside if rendered, that the court will he justified in directing a verdict for the defendant. Simmons v. Chicago, etc. Railroad Co. 110 Ill. 346; Chicago, Rock Island and Pacific Railway Co. v. Lewis, 109 id. 120; Goodrich v. Lincoln, 93 id. 360; Phillips v. Dickerson, 85 id. 11; Lake Shore and Michigan Southern Railroad Co. v. Johnsen, 135 id. 641; Purdy v. Hall, 134 id. 298. It is immaterial upon which side the evidence is introduced, if there is evidence which fairly tends to support the plaintiff’s case it must be submitted to the jury. If, therefore, there was any evidence tending to sustain the issues in plaintiff’s behalf, the error is not well assigned in this court. The weight and degree of credit to be given to evidence fall within the province of the jury, and when their finding of fact has been approved by the trial court and its judgment affirmed in the Appellate Court, the only question raised in this court by an instruction seeking to take the case from the jury is, was there any evidence fairly tending to establish a right of recovery by the plaintiff. If there was, the finding of the trial and Appellate Courts is conclusive as to its sufficiency to support the verdict.

It is, however, urged, that the omission to put in a stopcock in the supply pipe was not negligence, even if appellant can be held responsible therefor, and no other act of negligence being averred or proved, the plaintiff wholly failed to prove a case entitling him to recover. It is clear that the fact that the rubber used to carry the oil from the feed pipe to the burner was liable at any time to open and permit oil to escape, and that oil thus escaping was liable to ignite from the arch, was known, not only to the persons engaged in burning the kiln, but to the superintendent and officers of appellant, It had frequently happened, and it was known that the action of the oil and heat upon the rubber was such that it was very soon destroyed, and would crack open or break off. The company kept on hand a large supply of rubber to meet this condition. The manner of connecting the burner with the feed pipe was, the feed pipe opposite the arches was fitted with a short three-quarter inch pipe extending toward the arch, in which was fitted a stop-cock. Over the end of this short pipe the rubber tubing was forced, and the other end in like manner attached to the burner. The rubber tubing was about eighteen inches in length, and when completed it was about thirty inches from the feed pipe to the end of the burner next to the kiln. The effect of the breaking of the rubber might be the discharge of a stream of oil to its full capacity, practically under the s-top-cock, as the evidence tended to show was done by the breaking in this case. The effect testified to would be likely to occur, the oil being highly inflammable,, and, igniting, would prevent the use of the small stop-cock to check the flow of oil. The evidence tends to show that, without negligence on the part of appellee or his fellow-servants, it became, for the reason stated, immediately impossible to stop the flow of oil at that place; that he immediately went to the supply pipe, where a stop-cock had always before been inserted, and found none, and that this was the first notice he, or, so far as shown, his fellow-workmen then assisting him at the kiln, had that no valve had been put in to the supply pipe.

But, it is said, two ways of stopping the flow of oil having been provided, it was not negligence not to supply the third. The question as to whether it was or was not negligence was a question of fact, which has been found adversely to appellant’s contention. The jury were justified by the evidence, in finding that the check valve in the three-quarter inch ripe, as could readily have been foreseen might be the case, was rendered immediately useless by the spread of the burning oil. There was evidence tending to show that the valve on the tank was not relied upon in an emergency, as, when it became necessary to quickly stop the flow of oil. It was used when the supply pipe was to be attached or disconnected or the ear moved. It is conceded that, from its construction, it could not be turned by hand. Counsel for appellant say, in speaking of it: “It was evidently so arranged that it required some kind of wrench to turn it.” No notice was given appellee, or any of his fellow-workmen in the same gang or shift, of the omission of the stop-cock from-the supply pipe, so as to enable him or them to have appliances ready to shut off the oil from the tank if it became necessary. When Wagner, and others of the fellow-workmen, were called to assist in moving the tank, he jumped upon it and endeavored to turn the valve with his hand, and found it impossible. He went immediately for a wrench, but upon his return was driven away by the flames. Notice to Williams, foreman at the kiln, or to others who might be regarded as fellow-servants of appellee, was not notice to appellee. If, by reason of the omission to supply the usual and ordinary means to prevent accident, the hazard to its servants was increased, and the change in appliances was not known to the servants, or so open and visible that they, by the exercise of ordinary care, would see and know of it, the legal duty rested upon the master to notify them of the increased danger to which they were thereby exposed; and it being a duty owed, by the master to the servant, it could not delegate that duty to another, even though a fellow-servant of appellee, and absolve itself from liability for the injury resulting in consequence of the failure to communicate knowledge to appellee of the increased hazard. Chicago, etc. Railroad Co. v. Roth, 112 U. S. 377; Indiana Car Co. v. Parker, 100 Ind. 181; Thompson on Negligence, 972; Wharton on Negligence, sec. 211; 4 Am. and Eng. Ency. of Law, 59, note 3.

It is also insisted that a change in the appliances, by means of which it is alleged the injury was caused, although not known to appellee, having been made by his fellow-servants, the negligence, if any, was that of his fellow-servants, and he can not therefore recover. This question, like the preceding, was one of fact. Whether the persons who put in the appliances to which the Cannon burners were attached were fellow-servants of appellee in performing that work, under the rules defining who are fellow-servants, was a question of fact. (Indianapolis and St. Louis Railroad Co. v. Morgenstern, 106 Ill. 216; Chicago and Northwestern Railroad Co. v. Moranda, 108 id. 576.) There is ample evidence from which the jury might have found that they were put in by Mr. Cannon, and men in his employ, (none of whom were in the employ of the appellant,) under a license from appellant, for the sole purpose of testing the relative merits of the two burners in the consumption of oil in producing the requisite heat to burn a kiln of brick. If so, they were not fellow-servants of a common master with appellee, or engaged in the same line of employment, or so associated with him as to fall within the definition of fellow-servants, as held by this court in the foregoing and numerous other cases. Where the negligent act is a direct result of the exercise of power conferred by the master, in the performance of a duty devolving by law upon him, the master is liable. (Chicago and Alton Railroad Co. v. May, 108 Ill. 288; North Chicago Rolling Mill Co. v. Johnsen, 114 id. 57.) If, therefore, it be said that they were fellow-servants of appellee, or that fellow-servants of appellee in the work of burning brick and operating the appliances furnished by the master at the kiln assisted in putting in su'ch appliances, they would not be fellow-servants of appellee in respect of the particular work done by them.

That the master, although not held to guarantee the absolute perfection and suitableness of the machinery and appli- ' anees furnished the servants, is, nevertheless, bound to provide that which is safe and suitable for carrying on the business in which the servant is engaged, and is held to the employment of every precaution which a reasonably prudent man would exercise under like circumstances, is well established. Arising by implication from the contract of employment, as well as from reasons of public policy and natural justice, the duty rests upon the master,—whether a corporation or a natural person,—not to expose the servant, in the discharge of his duty, to perils and dangers against which the master may guard by the exercise of reasonable care. (Pennsylvania Co. v. Lynch, 90 Ill. 333; Fairbank v. Haentzsche, 73 id. 236; Missouri Furnace Co. v. Abend, 107 id. 44.) Hence the rule is, that the master must, either personally or by his agent, if an individual, and by its agents, if a corporation, exercise reasonable and proper care, taking into consideration the nature of the business and the instrumentalities employed, to provide and keep in suitable repair and condition safe and suitable machinery and appliances, adequately sufficient for use by the servant in and about the business in which they are to be used by him; and if a servant is injured in consequence of a neglect of such duty or a negligent discharge of it, he being in the exercise of ordinary care for his own safety, the master is liable. (Cases supra; Chicago and Alton Railroad Co. v. Platt, 89 Ill. 141; Railroad Co. v. Troesch, 68 id. 545 ; Calumet Iron and Steel Co. v. Martin, 115 id. 358; Wood on Master and Servant, sec 326, et seq.; Beach on Contributory Neg. 123; Hough v. Railroad Co. 100 U. S. 213.) It necessarily follows, that in the discharge of the duty resting upon and owing by the master to the servant, the acts of the person authorized by the master to perform the duty are the acts of the master. The liability of the master does not depend upon who performs the duty, but upon the existence of the duty itself, which the master must perform, and he can not, by delegating it to another, absolve himself from liability for its non-performance.

As a general rule, the servant assumes the natural and ordinary risks of the business in which he engages, and is held to impliedly contract that the master" shall not be liable for injuries consequent upon the negligence of a fellow-servant, in the employment of whom the master has exercised proper care, but he does not assume or contract to waive liability of the master for his own negligence, whether committed in person, or by an agent authorized by the master to perform a duty resting upon him. In such case, the master being under contract duly to perform, the servant may, without sufficient appearing or being shown to put him upon notice to the contrary, rely upon the due and reasonable performance of the duty. The law will not permit the master to evade the duty which it has cast upon him, by shifting it upon another. In this case, the master licensed Cannon, who was in nowise connected with the work which appellee was employed to do, to put in his burners. This required a new supply pipe connecting another tank of oil with one-half of the feed pipe. It was put in for the convenience of the master or his licensee, and the master was bound to see to it that it was suitable and safe, or give notice to appellee, so that he might quit the employment if-unwilling to assume the increased risk occasioned by the insufficient manner of its construction. The persons thus discharging the duty of the master were vice-principals, and their negligence was the negligence of the master.

But it is said, also, that upon the facts shown, appellee was guilty of such contributory negligence as to bar recovery. It is urged, first, that it was gross negligence for him to go under the tank and uncouple the supply pipe, whereby the oil poured over him; and second, that having been in a place of safety when he went to turn on the fire alarm, it was negligence for him to return to the place of known danger.

In respect to the first, it will only be necessary to say, that whether the doctrine of comparative negligence, as defined in Galena, etc. Railroad Co. v. Jacobs, 20 Ill. 478, and subsequent cases, has still a place in the jurisprudence of this State, and whether the later case of Calumet Iron and Steel Co. v. Martin, 115 Ill. 358, and other cases since decided, have not placed that doctrine upon a basis where it has become simply another form of stating the common law rule of contributory negligence, need not be here discussed, for the reason that it can have no application to cases like this, where the defendant is found to be in the exercise of ordinary care. The question was fairly submitted whether the plaintiff was, in uncoupling the supply pipe, in the exercise of ordinary care for his own. safety, and the jury have found that he was, upon ample evidence to sustain the finding. This is conclusive of the question of the right of recovery, if his injury was the result of the defendant’s negligence. Calumet Iron and Steel Co. v. Martin, supra; Chicago and Eastern Illinois Railroad Co. v. Connor, 30 Ill. App. 307; Abend v. Terre Haute and Indianapolis Railroad Co. 111 Ill. 203; Wharton on Negligence, sec. 334, et seq.; Shearman & Redfield on Negligence, secs. 25, 36, 37.

In respect of the second point, we are referred to numerous cases holding that, because of the sacredness with which human life is regarded by the law, negligence will not be attributable to him who impulsively rushes into known danger to save it. But that rule does not apply to one who goes voluntarily into such danger to save property, whether his own or another’s. The authorities are not uniform upon the last proposition, but its determination here is wholly unimportant. When appellee returned from sending the fire alarm there was nothing, save the possible explosion of the oil tank, that menaced him with personal danger. He undertook to move the tank out of the way of the fire, and undoubtedly would have succeeded, without injury to himself, had the valve upon the tank been closed when he uncoupled the supply pipe from it. It was his duty to make all exertion possible, consistent with his personal safety, to rescue the master’s property and prevent the farther spread of the conflagration. He was required to judge of the danger from the condition of affairs as they then existed, and act with promptness and as prudence dictated, and if, at the time he returned and endeavored to perform his duty, reasonable and prudent men, under all existing circumstances, would have apprehended no personal danger, he is not to be held guilty of negligence in returning because some unforseen cause intervened, which, concurring with the master’s negligence, produced the injury, which reasonable and prudent foresight could, not have anticipated. Whether there was in fact danger from explosion from the tank is unimportant. It did not explode, and the injury did not result from that or from any danger to appellee’s person, real or apparent, that the utmost prudence could have reasonably apprehended when he returned to the place of injury.

But it is urged that, the injury resulting as a consequence of the negligence of a fellow-servant in not closing the valve' upon the tank, no recovery against appellant can be justified. It is said, first, that the negligence of the fellow-servant intervening as an efficient cause of the injury, the negligence of the master, if any is attributable, became the remote, and not the proximate, cause; and second, that the master not being liable for injury inflicted in consequence of the negligence of a fellow-servant, if the injury would not have resulted but for such intervening negligence of the servant the master is not liable.

The fallacy of the first position lies in its assumption of the fact that the negligence of the fellow-servant was, in and of itself, a new and efficient cause of the injury. Whether the negligence of the defendant was the proximate cause of the injury was a question of fact, also, to be determined by the jury, under proper instruction from the court. We held in Fent v. Toledo, Peoria and Warsaw Railroad Co. 59 Ill. 349, (approving Toledo, Peoria and Warsaw Railroad Co. v. Pindar, 53 id. 451,) that whether the alleged negligence was the proximate cause of the injury was in each case a question of fact, and expressly repudiating the contrary rule, as laid down in Ryan v. New York Central Railroad Co. 35 N. Y. 314, as in the teeth of almost numberless decisions and as unsupported by reason. In the subsequent case of Toledo, Wabash and Western Railway Co. v. Muthersbaugh, 71 Ill. 572, the same was again held. We said in the Fent case, that so far as the ease turned upon the issue of remote or proximate cause, the .jury should be instructed that if the loss is a natural consequence of the alleged carelessness, which might have been foreseen by any reasonable person, the defendant is responsible, but is not -to be held responsible for injuries which could not have been foreseen or expected as the result of the negligence. This is not to be understood as requiring that the particular result might have been foreseen, for if the consequences follow in unbroken sequence from the wrong to the injury, without an intervening efficient cause, it is sufficient if, at the time of the negligence, the wrongdoer might, by the exercise of ordinary care, have foreseen that some injury might result from his negligence. Baltimore, etc. Railroad Co. v. Kean, 61 Md. 154; Milwaukee, etc. Railroad Co. v. Kellogg, 94 U. S. 469; Terre Haute, etc. Railroad Co. v. Buck, 96 Ind. 346, and the cases collected; 4 Am. and Eng. Ency. of Law, 42; Consolidated Ice Machine Co. et al. v. Keifer, 134 Ill. 481; La. Mut. Ins. Co. v. Tweed, supra; Miller v. St. Louis, etc. Railroad Co. 90 Mo. 389; Kellogg v. Chicago Railroad Co. 26 Wis. 223; Smith v. London, etc. Railroad Co. L. R. 6 C. P. 21; Bevan on Negligence, 80, 81. Thus, in the Keifer case, supra, it could not be foreseen that the particular injury might follow the placing of the tank upon an insufficient support. It might have fallen and injured no one, or a person other than appellee’s intestate. It was held sufficient that the support was so insufficient that injury might result from the falling of the tank.

If, therefore, the wrong of appellant put in motion the destructive agency, and the result is directly attributable thereto, and there was no intervention of a new force or power of itself sufficient to stand as the cause of the mischief, the negligence of appellant must be considered the proximate cause of the injury, if it could have been forseen, by the exercise of ordinary care, that injury might or would result from the negligence. “An intervening efficient cause is a new and independent force which breaks the causal connection between the original wrong and the injury, and itself becomes the direct and immediate, that is, the proximate, cause of an injury.” (Bishop on Non-Contract Law, secs. 42, 835, 836.) And the test is, “was it a new and independent force, acting in and of itself in causing the injury, and superseding the original wrong complained of, so as to make it remote in the chain of causation.” It must be manifest from this definition that the negligence of the fellow-servants, whether it be treated as creating a condition, merely, or as a cause, was not such an intervening efficient cause as to break the causal connection between the negligence of appellant and the injury. The destructive agency set in motion by the negligence of appellant increased in extent by the flow of burning oil, igniting whatever was in its way that was combustible. This followed as a natural and inevitable sequence, and coming in contact with the oil upon appellant’s clothing, ignition followed as a natural result. It therefore required the combined negligence of appellant and the fellow-servant to produce the conditions resulting in appellee’s injury.

It is well settled that where the injury is the result of the negligence of the defendant and that of a third person; or of the defendant, and an inevitable accident; or an inanimate thing has contributed with the negligence of the defendant to cause the injury, the plaintiff may recover, if the negligence of the defendant was an efficient cause of the injury. (2 Thompson on Negligence, 1085, sec. 3; Bishop on Non-contract Law, secs. 39, 450, 452; Shearman & Redfield on Negligence, sec. 31, et seq.; Carterville v. Cook, 129 Ill. 152; Ice Machine Co. v. Keifer, supra, and cases cited.) In such case, the negligence of two independent persons resulting in injury to the third, where neither is sufficient within itself, both are to be treated in combination as the proximate cause of the injury. It is clear that the negligence of the fellow-servant, in and of itself, could not have produced the injurious results suffered by appellee. .The negligence of appellant and the fellow-servant were therefore concurrent causes, and combined were the proximate cause of the injury. An efficient cause is simply the “working cause,” or that cause which produces effects or results, (Webster,) and a proximate cause is that which stands next in causation to the effect,—not necessarily in time or space, but in causal relation.

The modification of instructions complained of was in harmony with the view here expressed, and was not erroneous. The court modified the twenty-first and other instructions asked by the defendant, and thereby said to the jury, in effect, that if they believed, from the evidence, that the injury resulted wholly from the negligence of the fellow-servant as the immediate cause of the injury, the defendant was not liable. This modification raises the second proposition, and in effect presents the question whether, where the negligence of the servant necessarily entered into or intervened to produce the injurious result, the master is liable. It would seem to follow, as a result of the doctrine, that although the servant impliedly agrees that the master shall not be liable for the negligence of fellow-servants, he does not agree to take any risk or waive liability of the master for his own negligence,—that the servant may recover although the injury is the combined effect of the negligence of the master and fellow-servant. It is a familiar principle, that where the negligence of two are, in combination, the proximate cause of an injury, either or both may be held responsible for the consequences resulting from their combined negligence. Carterville v. Cook, supra; Ice Machine Co. v. Keifer, supra; Wabash, St. Louis and Pacific Railway Co. v. Shacklet, 105 Ill. 364; Union, etc. Railroad Co. v. Shacklet, 119 id. 232; 2 Thompson on Negligence, 1085, sec. 3, and cases cited; Cooley on Torts, (1st ed.) 684; Hill on Remedies for Torts, 178 ; Wharton on Neligence, sec. 788; Shearman & Redfield on Negligence, sec. 122.

Mr. Bishop, after stating that the rule of law is, “That a person contributing to a tort, whether his fellow contributors are men, natural or other forces or thing, is responsible for the whole, the same as though he had done all without help,” subject to the limitation that the person injured shall receive his damages but once, (Non-contract Law, secs. 518, 519) proceeds (sec. 684,) that, within the doctrine thus explained, "“a master whose negligence contributed to the injury of a servant is, if the servant’s negligence did not contribute also, liable for the entire injury, though some other force for which the former is not responsible—for example, the negligence of a fellow-servant—likewise contributed,” and cites in support, Crutchfield v. Railroad Co. 76 N. C. 320, Boyce v. Fitzpatrick, 80 Ind. 526, Paulmier v. Erie Railroad Co. 5 Vroom, 151, Stringham v. Stuart, 100 N. Y. 516, and Railroad Co. v. McKinzie, 81 Va. 71. See, also, Thompson on Negligence, 981, sec. 10 ; Booth v. Boston, etc. Railroad Co. 73 N. Y. 38 ; Cayzer v. Taylor, 10 Gray, 274. These authorities fully sustain the position that where the negligence of the master is combined with the negligence of a fellow-servant in producing the injurious result, and neither is the efficient cause alone, the master as well as the fellow-servant is liable. No case to which we have been referred, or of which we are aware, has gone so far as to hold that where the negligence of the master contributes to the injury the servant may not recover. The doctrine of contributory negligence is confined to the negligence of the party injured, and it is such negligence only, concurring with the negligence complained of, that will defeat the right of action.

The modification of the defendant’s instructions had the effect of making them conform to the rules and principles herein held, and was not, therefore, in our judgment, erroneous. Nor was it error for the court to refuse the instruction in effect taking the case from the jury.

While the ease is extremely close upon its facts, the jury were correctly instructed, and we find no error for which the judgment should he reversed. It is accordingly affirmed.

Judgment affirmed.