Jackson v. Illinois Northern Railway, 11246.
| Decision Date | 15 June 1955 |
| Docket Number | No. 11246.,11246. |
| Citation | 224 F.2d 76 |
| Parties | Malikiah JACKSON v. ILLINOIS NORTHERN RAILWAY. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Clifford D. O'Brien, Solomon Sachs, Chicago, Ill., for appellant, Lee Leibik, Walter N. Kaufman, Chicago, Ill., of counsel.
William J. O'Brien, Jr., Floyd J. Stuppi, Marshall E. LeSueur, Chicago, Ill., for appellee.
Before DUFFY, Chief Judge, and FINNEGAN and SCHNACKENBERG, Circuit Judges.
Plaintiff, Jackson, a railroad hostler helper, suffered a right inguinal hernia, indirectly acquired, while performing his duties as an employee of defendant Railroad. He asks us to reverse a judgment entered below on defendant's motion for a directed verdict, and order a new trial on his action brought under the Federal Employer's Liability Act.1
Defendant moved for a directed verdict at the close of plaintiff's evidence, and the trial judge took it under advisement. That motion was renewed and again taken under advisement at the close of all the evidence. When the trial jury was unable to reach a verdict, they were discharged and defendant's motion for a directed verdict was granted and the court ordered judgment for defendant from which plaintiff appealed. No question, according to both sides, arises on the pleadings.
The record discloses the following undisputed facts:
Wet sand, delivered in gondola cars, was brought to defendant's sand house and shoveled through trap doors into that structure where plaintiff worked drying such sand. Incoming sand was thus dumped and stored in one end of that shed opposite to which was a window, electric light and coal stove surrounded by a perforated steel screen. A wooden barrier about four feet high was located approximately 10 or 12 inches from the steel screen, forming a partition between, and dividing, wet from dry sand. Standing on the damp sand side, Jackson participated in the drying process by shoveling wet sand over the steel screen into the space between screen and stove. On the occurrence date that heating unit was producing heat from shortly after 4 P.M., November 21, 1951. When this sand dried it flowed through the screen and was removed by another worker. Defendant supplied Jackson with several shovels and a pick with which to perform his work. These tools were not defective in any way and were available to defendant at the time of his alleged injury.
In short, plaintiff alleges that because the trap doors were partially open due to heaps of sand and because rain during summer months fell into the sand house through large unrepaired holes in the roof, as did snow and sleet, quantities of sand were frozen into large masses. A foreman for the defendant Railroad, and called by that party as a witness, testified (T. R. 107) as follows:
On cross-examination of that witness this portion of his testimony is stressed by plaintiff:
Plaintiff picked up a lump of frozen sand which was part of a larger lump he had chopped off the heap of sand. When he started to reach over the barrier the frozen lump in his hands started crumbling, and he lurched forward and felt "a pain, a stinging kind of pain."
Jackson's theory of recovery rests upon paragraphs 6 and 7 of his complaint:
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Harris v. Pennsylvania R. Co.
...findings both that the deceased's conduct did not cause the accident and that the railroad's did.' In the case of Jackson v. Illinois Northern Railway, 7 Cir., 224 F.2d 76, a railroad hostler helper experienced a hernia in picking up a large frozen mass of sand. He had been furnished the pr......
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TEXAS & PACIFIC RAILWAY COMPANY v. Thomson
...148, writ refused N.R.E.; Great Atlantic & Pacific Tea Co. v. Evans, 1943, 142 Tex. 1, 175 S.W.2d 249; and Jackson v. Illinois Northern Ry. Co., 7 Cir., 1955, 224 F.2d 76. Appellee cites no authorities supporting her position, her only two federal court decisions9 being easily distinguishab......
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Eversole v. Consolidated Rail Corp.
...et seq. (West Supp.1986).2 Federal courts have upheld the choice of ways rule articulated in Instruction No. 22. See Jackson v. Illinois N. Ry. (7th Cir.1955), 224 F.2d 76; Wadiak v. Illinois Cent. R.R. Co. (7th Cir.1953), 208 F.2d 925.3 The interest tables provided for interest rates of 6%......
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Marmo v. Chicago, Rock Island & Pacific Railroad Co.
...who exposed himself to obvious danger was set aside. Nor does this court's affirmance of a directed verdict in Jackson v. Illinois N. Ry. Co., 224 F.2d 76 (7th Cir. 1955), where the plaintiff performed a job in an obviously dangerous manner, present a comparable case. The danger to Marmo wa......