Chicago, R.I.&P. Ry. Co. v. Benson

• Decision Date: 07 April 1933
• Docket Number: No. 21616.,21616.
• Citation: 352 Ill. 195,185 N.E. 244
• Court: Illinois Supreme Court
• Parties: CHICAGO, R. I. & P. RY. CO. v. BENSON.

352 Ill. 195

185 N.E. 244

CHICAGO, R. I. & P. RY. CO.

v.BENSON.

No. 21616.

Supreme Court of Illinois.

Feb. 23, 1933.

As Modified on Denial of Rehearing April 7, 1933.

Error to Appellate Court, Second District, on Appeal from Circuit Court, Peoria County; Joseph E. Daily, Judge.

Suit by Leo Benson against the Chicago, Rock Island & Pacific Railway Company. Judgment for plaintiff was affirmed on appeal by the Appellate Court (267 Ill. App. 11), and defendant brings certiorari.

Affirmed.

DUNN and DE YOUNG, JJ., dissenting.Daniel Taylor, of Chicago, and Miller, Elliott & Westervelt, of Peoria (Eugene R. Johnson, of Peoria, of counsel), for plaintiff in error.

John E. Cassidy, of Peoria, for defendant in error.

HEARD, Chief Justice.

Leo Benson, an employee of the Chicago, Rock Island & Pacific Railway Company as a switchman for a period of nine or ten years, was, on August 17, 1929, injured by a train of the railway company. He brought suit in the circuit court of Peoria county based on his injuries, and recovered a judgment of $32,500, which was affirmed, on appeal, by the Appellate Court for the Second District. The case is here on certiorari.

The declaration consists of two counts, each of which charges that on August 17, 1929, Benson and the railway company were employee and employer, respectively, and engaged in interstate transportation by rail, and that Benson was employed in defendant's railroad yards in Peoria as a member of a train crew. The first count charges that he was engaged in switching a certain cut of railway cars in the work of interstate commerce; that while he was so engaged he was injured because of the negligence of the company in permitting a strand of wire to be attached to a handhold of one of the cars in the switching cut, which made it unsafe for the employees; that when he was in the act of securing himself and his personal safety by grasping the handhold his glove became entangled in the wire, as a result of which he was pulled or dragged some distance, after which he was struck by another freight car which was then in the same switching operation, resulting in injuries to him. The second count avers that at the time of his injury Benson was engaged, as an employee of the company, in interstate commerce in a certain switching operation,and that by reason of carelessness and recklessness of the agents and servants of defendant a railway car was propelled against him with great force, striking him in the back, causing the injuries there recited. The only plea was that of not guilty.

The accident occurred about 11 o'clock on the morning of August 17, 1929, while he and three others were engaged in a switching operation with a train consisting of an engine and seven or eight freight cars. They were engaged in setting the cars in places where they were either to be loaded or unloaded and then sent to their particular destinations. This train had been made up and moved down into the yard, where the cars were taken from the main track and shunted onto a side track, pushed by the engine. At the time of the accident Benson was standing by the side of the track, facing the approaching cars. It was his duty to uncouple the first car, or the one farthest from the engine, by pulling a coupling pin, and then the fireman, standing off from the side of the train, would signal the engineer to stop the engine and the other cars, and the car that had been uncoupled would roll on down the track to its destination. The cars were approaching Benson at a rate of speed estimated at six to eight miles per hour. As the first car reached him he reached up with his right hand and took hold of the grabiron, and with his left hand uncoupled the car from the rest of the train. It was the switchman's custom to always run a short distance beside the car as it was uncoupled, so that if there was any slack in the train the next car to the one that had been uncoupled would not strike him. This Benson did when he uncoupled the car, but discovered that his hand was caught by his glove on the grabiron and he could not release himself. He stumbled and was dragged along until his glove was torn loose. He was struck by the next car to the one that he had released, and was knocked down and severely injured. After the accident the grabiron on which his hand had been caught was examined, and it was discovered that a piece of No. 9 fence wire, with a hook on the end, was wrapped around the grabiron.

It is first contended by plaintiff in error that at the time the accident occurred Benson was not engaged in interstate commerce. The trial court found that he was so engaged, and the Appellate Court affirmed that finding. Where the Appellate Court has affirmed a judgment for the plaintiff in an action at law the Supreme Court is precluded from weighing the evidence to determine where the preponderance lies; but where a motion is made to direct a verdict for the defendant the evidence may be examined for the purpose of determining whether, when all the evidence is considered in its aspect most favorable to the plaintiff, together with all its reasonable intendments, there is a total failure to prove any element necessary to maintain the cause of action alleged. Coal Creek Drainage District v. Sanitary District, 336 Ill. 11, 167 N. E. 807. There is evidence tending to show that in the cut of cars being switched at the time of the accident there was a tank car of acid consigned from Marquette, Mich., to the United States Industrial Alcohol Company of Peoria, Ill.; one from New Orleans, La., to the same alcohol company in Peoria; and one from the Commercial Solvents Corporation of Peoria of methanol, consigned to the Heyden Chemical Corporation, Garfield, N. J. The evidence with reference to these three cars tended to give an interstate character to the cut, to the switching crew, and to the operation in which they were engaged. Plaintiff in error's contention in this regard cannot be sustained.

During the progress of the trial plaintiff in error made a motion to withdraw a juror and for a mistrial, and in support of that presented an affidavit of one of its claim inspectors and adjusters to the effect that during the morning recess, and while the jury in the case was out in the lobby of the courthouse, the affiant saw the investigator for the attorney for the plaintiff mingling with the jurors in the case and saw him talking to one of them; that the investigator had attended the trial of the case and had been sitting at the table with plaintiff's counsel almost continuously during the trial of the cause. The court denied the motion, and thereafter the investigator, named as having been seen talking to one of the jurors, was called and denied having had any conversation with any of the jurors in the case. This motion, and the hearing thereon, were outside of the presence and hearing of the jury. While it is highly improper for an investigator or other party engaged in the prosecution of a case which is being tried by a...