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of negligence in refusing to remain with defendant in error while he was in the combustion chamber, in any matter in which he attempted to assist defendant in error in making an examination of the boiler he was not in the line of his duty as an employee of plaintiff in error. It was at the request of Bond & Co., as agents of the owner of the premises, that defendant in error, an employee of the Page Boiler Company, went to examine the boiler. Defendant in error was a licensee upon the premises, and the law required plaintiff in error to exercise reasonable care to protect him from injury. Plaintiff in error had not been requested by defendant in error, or by his employer, to render him any assistance in making his examination of the boiler. Indeed, it does not appear from the evidence that plaintiff in error had any knowledge that defendant in error was on the premises at all. Rossow was requested by the defendant in error to turn on the water and to remain while he made the examination. Defendant in error was not in the combustion chamber when Rossow left and went up on the elevator, and the first notice he had that defendant in error was in a place of danger was when he returned to the engine room. Even if it be conceded that Rossow was guilty of negligence in not remaining in the engine room, as requested by defendant in error, we are unable to see how his negligence in this regard can be imputable to plaintiff in error. Before there can be actionable negligence there must be a duty due from the person charged to the injured party, a violation of that duty and resulting damages. If Rossow undertook, at the request of defendant in error, to render him any assistance in making his examination, in doing so he was not in the discharge of any duty that plaintiff in error owed to defendant in error. He was not in the line of his employment in obeying the command or request of defendant in error. If he had refused to turn the water on when defendant in error requested him to do so, his refusal would not have been a

violation of any duty that he owed to his employer. If Rossow had been injured while attempting to comply with the request of defendant in error, through some defect in the appliances which he was required to use in complying with such request, he could not have recovered from the plaintiff in error on the ground that it had failed to furnish him reasonably safe appliances or tools with which to do his work.

The general rule is that a party injured by the negligence of another must seek his remedy against the person who caused the injury, since such person is alone liable. To this general rule the case of master and servant is an exception, and the negligence of the servant while acting within the scope of his employment is imputable to the master, but to bring a case within this exception it is necessary to show that the relation of master and servant exists between the person at fault and the one sought to be charged for the result of the wrong, and the relation must exist at the time and in respect to the particular transaction out of which the injury arose. Outside of the scope of his employment the servant is as much a stranger to his master as any third person, and an act of the servant not done in the execution of services for which he was engaged cannot be regarded as the act of the master. If the servant step aside from his master's business for some purpose wholly disconnected with his employment the relation of master and servant is suspended. The act of the servant during such interval is not to be charged to his master. This doctrine is established by substantially all of the authorities. (Higgins v. Western Union Telegraph Co. 156 N. Y. 75; 50 N. E. Rep. 500; Standard Oil Co. v. Anderson, 202 U. S. 215.) The same rule has often been recognized by this court. (Pawlak v. Smith, 233 Ill. 401; Kehoe v. Marshall Field & Co. 237 id. 470; Harding v. St. Louis Nat. Stock Yards, 242 id. 444.) Assuming all that the evidence proves or tends to prove to be true, it

does not establish a case of liability against plaintiff in error. This question is decisive of the merits of the case.

The trial court erred in refusing to direct a verdict for plaintiff in error, and the Appellate Court erred in refusing for that error to reverse the judgment of the trial court. The judgments of the trial and Appellate Courts are reversed and the cause remanded to the trial court. Reversed and remanded.

Mr. JUSTICE CARTER, dissenting.

SARAH E. HEMMICK, Admx., Appellant, vs. THE BALTIMORE AND OHIO SOUTHWESTERN RAILROAD COMPANY, Appellee.

Opinion filed April 23, 1914.

1. RAILROADS-contract that acceptance of benefits from relief department shall release cause of action is valid. A contract is valid by which an employee agrees that the acceptance of benefits in the relief department of the employer and the payment by the employer of the amount stipulated to be paid by the relief department shall operate as a release of any cause of action that might otherwise be maintained against the employer.

2. RELEASE—a release under seal imports consideration-impeachment. A release under seal imports consideration, and the fraud which will impeach such a release in an action at law must relate to the execution of the instrument and not merely to the nature and extent of the consideration.

3. SAME-party signing release need not be named in body of the instrument. A person who signs a release under seal becomes a party to the instrument, and it is not necessary that he be named in the body of the instrument.

4. SAME when application and certificate of membership in relief department need not be proved. If a release under seal recites that the application for membership in the relief department and the regulations of such department make the acceptance of benefits a release of all claims on account of the injury received. it is not necessary that the application and certificate of membership in the relief department be introduced in evidence.

APPEAL from the Appellate Court for the Third District;-heard in that court on appeal from the Circuit Court of Sangamon county; the Hon. JAMES A. CREIGHTON, Judge, presiding.

ALONZO HOFF, and A. SALZENSTEIN, for appellant.

GRAHAM & GRAHAM, (EDWARD BARTON, of counsel,) for appellee.

Mr. JUSTICE VICKERS delivered the opinion of the court:

Appellant, as administratrix of the estate of David O. Hemmick, deceased, brought this action in case against the Baltimore and Ohio Southwestern Railroad Company to recover damages for the alleged wrongful death of her husband through alleged negligence of the railroad company. At the close of all the evidence the circuit court directed a verdict of not guilty, and the judgment entered upon the verdict so rendered was affirmed by the Appellate Court for the Third District. The case comes to this court on a certificate of importance granted by the Appellate Court.

The declaration was in four counts. The first count alleged that the appellant's intestate was an engineer in the employ of the appellee, and as such was in the line of his duty running and operating one of its engines attached to a passenger train from Flora, Illinois, to Beardstown, on the evening of February 14, 1911, and that by the negligence of the defendant through its servants, not fellowservants of the deceased, in negligently leaving open a certain switch track near Philadelphia, Illinois, on which there were freight cars, the engine which the deceased was operating, and while he was in the exercise of due care for his own safety, ran into said switch track and collided with said cars and he was thereby thrown out of said engine and killed; that the deceased left him surviving Sarah E. Hemmick, his widow, and Lenora M. Hemmick, his daughter,

aged eleven years, as his heirs and next of kin. The second count is the same as the first, except it charges that plaintiff's intestate was killed by jumping from the engine in an effort to escape. The negligence charged in the third count was the failure of appellee to maintain a switch light at the place where the engine left the main track and ran into the open switch. This count alleges that deceased met his death in the collision with the freight cars on the switch track. The fourth count is the same as the third, except it charges that the deceased lost his life in jumping from his engine to avoid the impending danger from a collision. The general issue was filed to this declaration and a trial had before a jury.

He was

Evidence was introduced which tended to sustain the averments of the declaration. The evidence shows that the deceased was a locomotive engineer and had been with the appellee company about twenty-one years, and for some time prior to his death he was an engineer of a passenger train running between Flora and Beardstown. forty-eight years of age at the time of his death, in good health and was earning $150 per month. He lived with and supported his family, consisting of himself, his wife and infant daughter, then eleven years of age. The train upon which he was engineer consisted of an engine, accommodation mail and baggage cars, and two coaches, equipped with automatic brakes. This train left Springfield on February 14, 1911, at eight o'clock P. M. and ran into the open switch about nine P. M. The passenger train passed a freight train at Ashland, seven miles from the switch. The crew of this freight train had used the switch about threequarters of an hour before the passenger engine ran into it. The freight crew had apparently neglected, upon leaving the switch, to lock it, as the lock was found open and unbroken on a tie that the switch stood upon. The conductor or brakeman of the freight train testified that the switch was closed and locked when the freight train left.

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