#### Chicago, Burlington & Quincy R. R. Co. v. John Stafford.

1. Negligence oe co-si:rvant. — One of two employes of the same master, while engaged in the same line of general duty, can not recover for any injury received on account ol the negligent acts of the other, unless the common master has been guilty of some negligence, either in the employment of such servant or in retaining him in such service after notice of his unfitness for such employment.

2. When servant mat recover. — If the complaining servant enters into the employment ¡of such common master, or remains in it after notice of the character of his co-servant for recklessness or carelessness, and he receives any injury in consequer ce of the negligent acts of his co-employe, he can not recover unless he han notified the master of the character of such servant, and the master has iromised to remove him and has failed, while the servant was engaged with such employe for a reasonable time on the faith of such promise.

Appeal from, the Circuit Court of Peoria county; the Hon. H. M. Laws, Judge, presiding.

Opinion filed February 5, 1885.

The appellee arid Robert Mack were both in the employ of the appellant on and prior to the 11th day of June, 1883, when the accident complained of happened, the one the switch-man or helper, and the other the engineer of the switch engine, which they were both operating and working together in the appellant’s yard in Peoria, Ill., engaged in switching cars, and the two had been together, so operating, for about one month. They were what the law denominates fellow servants of the same master, engaged in the same line of employment. While the appellee was engaged with Mack, on that *85day, in coupling a certain passenger car, and in his proper place on the foot board in front of the engine, and Mack was in his proper place on the engine, driving and conducting the engine, the latter failed to stop the engine in time to prevent it from striking the car in front of it, by means of which the draw-bar or coupling was broken, and the front part of the engine was forced against the end of the car, and appellee was caught and crushed between the locomotive and car and greatly injured, sustaining an oblique fracture of the right femur in the upper third, also a com minuted fracture of the left femur in the lower third, and the intervening part of the bone was shattered, the muscles and tissues considerably bruised, and he sustained some injury to the muscles of the chest and abdomen. The result of the injury was that his right leg is shorter than the left, that he is bow-legged, and that he will never be able to resume his duties as a switchman.

The gravamen of the complaint is that Mack, the engineer, was incompetent and unskillful in operating and controlling this engine, as well as others under his control, and that through his negligence and carelessness the injury occurred; that he was at the time, and had for a long time before, been incompetent to properly manage and control that engine and others; that the appellant had notice of this and had had such notice for a long time; that the appellee did not have such notice.

The cause was tried in the court below and resulted in a verdict and judgment in favor of the appellee, and an appeal is taken to this court.

Messrs. Jack & Moore, for appellant;

cited Wood on Master and Servant, §§ 416, 419; Summersell v. Fish, 17 Mass. 312; Warner v. Erie R. R Co., 39 N. Y. 470; Caldwell v. Brown, 53 Pa. 457; Beaulien v. Portland Co., 48 Me. 294; Harrison v. R. R. Co., 31 N. J. 293; Hard v. Vt. Cent. R. R. Co., 32 Vt. 473; O’Connell v. B., etc., R. R. Co., 20 Md. 212; Thayer v. St. L., etc., R. R. Co., 22 Ind. 26; Morgan v. V. of N. Ry. Co., 12 B. 154; Feltham v. England, 22 B. 33.

*86Messrs. Wilson & Baum, and Messrs. Stevens, Lee & Horton, for appellee;

as to notice, cited Mich. Cent. R. R. Co. v. Gilbert, 46 Mich. 176; Davis v. Detroit, etc., R. R. Co., 20 Mich. 124; Cooley on Torts, 559.

Lacey, J.

There are several points raised by appellant’s counsel and urged as grounds for reversal, such as the improper admission of testimony of witnesses who were allowed to give their opinion rs to whether Mack was a careful, competent and safe enginser or not, and as to whether specific acts of negligence on .he part of Mack to show his carelessness and to show not ce to the company were competent, and as to whether certain of appellee’s instructions were properly given and cer sain of appellant’s offered were properly refused, but as we have concluded to reverse the judgment of the court below on tli b ground, that there was not sufficient evidence to support the verdict, it will not be necessary and we will not pass upon ‘hose questions.

We shall simply not ce this feature of the case:

The declaration charges that the engineer, Mack, was habitually careless and negligent and for a long time had been, and that this fact was know i to the appellant; hence the inference of law that it was negligent in retaining him in its employment, and therefore resoonsible for all the negligent acts of the engineer, even for injury resulting to its own employes working with him and in the same line of employment. It is again averred that appellee had no notice or cognizance of such fact. If he had, i‘. must be admitted that he can not recover even if the first two averments have been established. It admits of serious do lbt from the evidence whether Mack was so reckless and incompetent that an ordinary prudent man, knowing his character, would not have retained him in like service, and also whether appellant should be charged with notice; but it is qi ite clear that the appellee had as full notice of Mack’s chara iter as an engineer as the appellant, and this is deduced from the testimony of appellee himself.

The main complaint against the competency of Mack -is that he was too lively ir running his engine when coupling *87cars, that he ran it habitually too fast, thereby subjecting it to the hazard of running into the car he was attempting to couple to, in fact the very hazard that caused this accident, in all probability. Ho other point of carelessness or incompetency is charged against him. Ill's character as to the manner of switching seemed to be generally well understood among all the railroad men with whom he worked — some of whom considered his mode of switching dangerous and some did not. It seems that he had a remarkable power of stopping his engine suddenly and saving any danger of collisions, and in all probability would have stopped this one at the time when the accident happened, save for the railroad track being wet so that the wheels did not cause sufficient friction on the track to enable him to stop in time.

Did the appellee have notice of this trait of character in Mack? He himself settles that point fully. He had been working with him about a month before the accident in this very business. He says:’ “Mack always handled his engine pretty fast; he always did good work and made good stops until this time, he didn’t stop.” * * * “ Always before this he would come up pretty lively and pull his engine over and stop from six to ten feet before he would get to the car, then throw her into the forward motion and come up so that I could make the coupling.” * * " Before this he always came up to the car carefully after he would stop. He approached the car pretty fast and a man that was not used to him, or acquainted with him, would think he would run into a car most every time” * * “ would think the engine would get away, because he came up at pretty good speed, and handled his engine lively, and a man had to work pretty lively with him.” The appellee testified that he had been a railroad man ever since the war and worked as a switch-man at yard work for several years. He twice worked in the P. & P. H. By. yards, alongside defendant’s yards. He swears that, “ During the month preceding the accident in which I assisted in making up these trains, Mr. Mack was engineer all the time except one half a day. I was familiar with Mr. Mack’s way of handling the trains; I knew he was in the habit *88of running up rapidly and stopping just before he got to the car and then slowing it up. He made this coupling this day in the same manner In always did except this time his engine did not stop, for some 'eason. I did not notice that he came up more rapidly that lay than usual; I do not know as he started up from the sw itch any faster than he had been in the habit of doing.” * * “I had done this same kind of work with him three tines a day, and he did it that morning in the same manner as usual, except that his engine did not take a halt. He was a man who handled his engine quickly and well, and one that I always had a great deal of confidence in and had at that tine; he did good work and made good stops until this time. I never knew him to fail except in this instance.”

It is seen from this testimony of appellee himself that he had full and complete notice of the very faults that Mack had, which is relied on alono to show that he was habitually incompetent and reckless in 1 unning his engine. The information that appellee had was the same that appellant could have been informed of and no other. If that was sufficient to compel the discharge of Mack by appellant at the peril of its being responsible to his' emp oyes for all damages that they might receive on account of his negligent acts, then it was sufficient to bar the right of recot ery of appellee if he received injury on account of such negl gence.

The law in this Stat 3 is that one of two employes of the same master, while engaged in the same line of general duty, can not recover for any injury received on account of the negligent acts of the other, unless the common master has been guilty of some negligence, either in the employment of such servant or in retaining 1 im in such service after notice of his unfitness for such employment; and if the complaining servant enters into the employment of such common master or remains in it after notice of the character of his co-servant for recklessness or carelessn 3ss, and he receives any injury in consequence of the negligent acts of his cc-cmploye, he can not recover unless he has no :ified the master of the character of such servant, and the master has promised to remove him, and *89has failed, while the servant was engaged with such employe for a reasonable time on the faith of such promise.

The Supreme Court seems to have laid down the law fully on this point in Missouri Furnace Co. v. Abend. 107 Ill. 44. The court say: “ The questions raised and discussed on this record have not heretofore been considered by the court in the exact form now presented, and the court is at liberty to determine them as of first impression.” * * * “Should the employe discover the service had become more hazardous than usual, or than he had anticipated, by reason of defective machinery, the retaining of unfaithful fellow servants, or for any other cause, the general rule is, he must quit the service or assume the extra risk to which he is exposed. The rule of law rests in this respect on a correct principle.” After deciding that notice of the discovery of new perils must be given to the master, the court further says: “ The relation of master and servant imposes no obligation on the master to take more care for the servant than the servant is willing to observe for his own personal safety.” Then the court goes on to give the exception, where there is a notice and promise on the latter’s part to remedy the wrong complained of. But as appellee gave no notice or made any complaint it is not necessary to notice this exception to the rule further.

This being the law, whether wisely or unwisely, it must be enforced and not allowed by the courts to be evaded. It is indeed a sad accident that has befallen the appellee, and there is no one who could fail to have the deepest sympathy for him in his misfortune, and in consequence we have given the case unusual attention and have come to the conclusion which we have announced, that it falls clearly within the rule of the law that forbids a fellow servant of a common master from recovering damages from such master for injuries received by reason of the negligence of his servant while engaged in the same line of duty — and the evidence in the case fails to show by any possibility that the appellee’s case falls within any exception to the general rule at present recognized by the laws of the State.

The judgment of the court below is therefore reversed.