202 Ill. 202 | Ill. | 1903
Lead Opinion
delivered the opinion of the court:
The appellant, at the close of the plaintiff’s evidence, asked the court that the jury be instructed to find for the defendant, which instruction was refused. This motion was renewed at the close of all the evidence and the instruction again refused. The refusal to give this instruction to the jury requires an examination of the record by this court for the purpose of ascertaining whether the evidence tends to make a case which sustains the allegations of the declaration.
Clearly there can be no recovery against appellant except on the theory that the engiqe crew causing the accident was under its control to such an extent as to establish the relation of master and servant. (Foster v. Wadsworth-Howland Co. 168 Ill. 514; Hexamer v. Webb, 101 N. Y. 377.) This seems to be conceded by appellee to be the law. He contends, however, that the relation of master and servant was established, by the proof, between appellant and the National Stock Yards Company of East St. Louis. Assuming that this is true, it would still be necessary to establish, by a preponderance of the evidence, that the engine and crew causing the accident was that of the National Stock Yards Company acting as the servant of appellant, and this we think he has failed to do. The testimony on this point is as follows:
Q. “Mr. Ron an, didn’t you look around there to see what it was that struck the car, when you came out of it?
A. “I did not look; I knew it was an engine struck it.
Q. “I am not asking you w'hat you know. I ask you if you looked to see what it was that struck the car.
A. “I seen an engine; I could not say what engine; I seen an engine up there.
Q. “That was the engine that struck the car, wasn’t it?
A. “I suppose so.
Q. “You don’t know whose engine that was that came in there?
A. “I would not swear, no.
Q. “You don’t know anything about that?
A. “No, sir; I would not swear whose engine it was.”
The only other testimony in the record upon this point, was that of Beasley, foreman of the stock yards switching crew which was on duty at appellant’s plant during-each working day, who on direct examination testified:
Q. “Do you know anything about the accident to Mr. Ronan?
A. “No, sir, not a thing; I did not know Mr. Ronan at. all only since the last trial.”
And on cross-examination:
Q. “I believe you said when you were here the last-time that you were in Swift’s yard with this engine on the 3d of November, but whether you were there on the occasion when this man was hurt you could not say?
A. “Yes, I did; I think that is the way.
Q. “Were you there that day?
A. “I am pretty positive I was there that day, Mr. Lee, but whether I was there at the time of the accident I could hot say.
Q. “What other engines went in that yard besides your own?
A. “The Bridge company, the Cotton Belt, the CloverLeaf and the Air Line, — or the Southern now.”
This was all the testimony .as to the identity of the engine causing the accident. We do not think this can be said to tend to prove that it was the engine and crew of the National Stock Yards Company which appellee contends was occupying the position of servant to appellant, and in our opinion the question of master and servant is of no importance until the identity of the engine and crew causing the accident is established. It is apparent from the evidence that the acc-ident might have been caused by an engine of one of the railroad companies which the proof shows also went in the appellant’s, yards, and that there was no evidence upon which to base a finding that it was the engine of the National Stock. Yards Company which caused the accident. It is not claimed the relation of master and servant existed between the railroad companies whose engines entered said yards, and appellant. It was vital to the case, of appellee that he connect the National Stock Yards Company engine with the accident. Failing in this, no case was made, and the court should have so instructed the jury.
The judgments of the Appellate and city courts will be reversed and the cause remanded for a new trial.
Reversed and remanded.
Dissenting Opinion
dissenting: Questions of fact, in cases submitted to juries, are for the determination of the jury, and not of this court.
