224 F.2d 76 (7th Cir. 1955), 11246, Jackson v. Illinois Northern Ry.

Docket Nº:11246.
Citation:224 F.2d 76
Case Date:June 15, 1955
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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224 F.2d 76 (7th Cir. 1955)

Malikiah JACKSON



No. 11246.

United States Court of Appeals, Seventh Circuit.

June 15, 1955

Clifford D. O'Brien, Solomon Sachs, Chicago, Ill., for appellant, Lee Leibik, Waster 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.

FINNEGAN, Circuit Judge.

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 op 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

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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...

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