Anderson v. Elgin, Joliet and Eastern Railway Co.

• Decision Date: 07 December 1955
• Docket Number: No. 11424.,11424.
• Citation: 227 F.2d 91
• Parties: Louis D. ANDERSON, Plaintiff-Appellee, v. ELGIN, JOLIET AND EASTERN RAILWAY COMPANY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

227 F.2d 91 (1955)

Louis D. ANDERSON, Plaintiff-Appellee, v. ELGIN, JOLIET AND EASTERN RAILWAY COMPANY, Defendant-Appellant.

No. 11424.

United States Court of Appeals Seventh Circuit.

November 9, 1955.

Rehearing Denied December 7, 1955.

Harlan L. Hackbert, Chicago, Ill., Stevenson, Conaghan, Velde & Hackbert, Chicago, Ill., of counsel, for appellant.

Bruce Parkhill, Chicago, Ill., for appellee.

Before DUFFY, Chief Judge, and MAJOR and SWAIM, Circuit Judges.

MAJOR, Circuit Judge.

This action was brought by the plaintiff under the provisions of the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., to recover damages for injuries incurred in the course of his employment by the defendant. The case was tried to a jury which rendered a verdict in favor of the plaintiff. From a judgment predicated thereon defendant appeals.

The principal issue argued here is that the trial court erred in its refusal to direct a verdict in favor of the defendant or, in the alternative, in its refusal to enter a judgment notwithstanding the verdict. This argument rests upon the premise that the proof was insufficient to take the case to the jury either on the issue of defendant's negligence or of a causal relationship between the accident as alleged and the physical condition of the plaintiff at the time of the trial. It is also contended that the court erred in its refusal of defendant's motion for a new trial, based upon certain instructions both given and refused.

Plaintiff was a switchman employed by the defendant in its mill yard at Gary, Indiana. On the morning of January 4, 1950, he reported for work at 7 a. m., and about thirty minutes later stepped from an engine on which he was riding to the ground which was covered with ice, when he slipped, fell and received his alleged injuries. Defendant's yard consisted of the railway tracks within the Gary Steel Works of United States Steel Corporation at Gary, on the southern shore of Lake Michigan, and covered an area some five miles long and two miles wide. There were 210 miles of railway track and more than 1600 switches, the largest industrial yard on the railway. Over these tracks were moved inbound shipments of raw materials and outbound shipments of finished products. There were moved daily in the yard 2200 to 3000 cars. All of the tracks and switches were used regularly, but some more often than others. The accident happened in what was called the subway district, at the edge of the place where a subway or under-pass went under the tracks. At this point more ice ordinarily formed than elsewhere in the yard. About 50 switches were located in the subway district and it was one of the busiest locations in the yard.

There appears to be no question but that plaintiff at the time of the accident was engaged in the performance of his duties in the usual and ordinary manner. The crew of which he was a member was engaged in a switching operation, with plaintiff riding on the step of the engine. When the engine reached switch 13-B, it slowed down almost to a stop, plaintiff stepped to the ground which was covered with ice and, as already stated, slipped and fell. Plaintiff had previously thrown one switch, it was his duty to throw switch 13-B, and it was for this reason that the engine slowed down and plaintiff stepped off. Plaintiff stepped off the engine on the side opposite to the switch stand. There is some dispute as to the precise manner in which plaintiff fell, which we think is immaterial. At any rate, he got up, crossed the track and performed the operation of throwing the switch. He again got on the engine and about an hour later was taken to the hospital. Eventually he was found to be suffering from herniated intervertebral disc, which allegedly resulted from the injury received in his fall on January 4.

On January 3, 1950 (the day before the accident), a cold front accompanied by freezing rain and sleet, followed later by snow, moved eastward from Chicago across northern Indiana. Past experience indicated that a storm of this severity might be expected from two to four times each year. The storm reached Gary, Indiana, about 11 p. m. Rain was frozen as it fell and soon a glaze of ice formed all over that area, including the switch yard. The storm continued during the remainder of the night. There is some variance in the testimony as to the time it ceased, but it appears to have continued until 7, and perhaps until 8 a. m. (January 4, the date of the accident).

Defendant employed a section crew (sometimes referred to as track laborers) of some ninety men in its Gary yard, about half of whom lived in shanties within the yard. Their regular shift was from 8 a. m. until 4:30 p. m., although they were subject to call for special duty at any time. When so called, it required about two hours to get the crew on the job. This crew was not called for special duty but commenced work at the regular time, that is, 8 o'clock on the morning of January 4. At that time thirty of these men were assigned to cleaning out ice from the switches in the subway area where plaintiff had been previously injured, and the other sixty were assigned to other areas in the yard. One of the duties of the section crew was to scatter calcium chloride, a salt more powerful in melting or preventing the formation of ice than ordinary salt. This salt melts the ice wherever it is spread and acts like anti-freeze. It prevents falling rain from freezing. It was brought into the Gary yard by the defendant in large quantities and was stored in section-house shanties. Some of it was stored in a switchman's shanty about twenty-five feet from the switch where the accident happened.

The evidence strongly indicates that it was the custom to spread this salt not in the yards generally but only in the points of the switches and around the switch stands. There is some testimony, however, that it was customary to scatter the salt about three feet outside the rails on both sides along the switch, that it was spread along the leads (tracks) to provide a thawing path for the men working along such tracks, and that it was spread a lot of places where men walked, to provide a footing so that they would be able to do their work without falling. Defendant's road master in charge of maintenance and construction of tracks in the Gary mill yard testified that from his experience calcium chloride used during a freezing storm such as was experienced at the time in question dissolved and served no purpose. For this reason, so he testified, it was not the practice to call out the section crew until after a storm had ceased.

Plaintiff's argument that the issue of negligence was properly submitted to the jury is bottomed almost entirely upon the contention that the defendant, charged with the duty of exercising reasonable care in furnishing its employees a reasonably safe place to work, could have removed or remedied the icy situation which caused plaintiff's fall. It is pointed out that the glaze of ice in the yard must have been known to the defendant at 11 p. m. on the day before the accident (some 8½ hours before); that the accident took place in one of the busiest parts of the yard, at a location where icy conditions were always unusually bad; that there was available to the defendant both the material and labor by which the situation could have been remedied but that defendant failed to use the means at hand or to do anything prior to the time plaintiff received his injury.

On the other hand, defendant argues that it was not negligent as a matter of law and that there should have been a directed verdict in its favor. Its argument in condensed form is that its yards were covered with a coat of ice as a result of a severe storm which did not cease until after plaintiff had commenced his work. Such being the situation, so it is argued, reasonable care did not require it to call forth its section crew in the nighttime and during the progress of the storm, and thereby expose them to its hazards for the purpose of attempting to remove the ice which had accumulated in its yard. Moreover, it is pointed out that such an effort would have been futile during the progress of the storm, and that they were immediately assigned to the task of clearing the yard upon their arrival for work at about the same time the storm ceased, which was all that defendant could reasonably have been expected to do.

Both parties cite and discuss numerous cases in support of their respective positions on the issue of negligence. We doubt if any good purpose could be served in analyzing or discussing these cases in detail. The case most strongly relied upon by defendant is Missouri Pacific Railroad Co. v. Aeby, 275 U.S. 426, 48 S.Ct. 177, 72 L.Ed. 351, where it was held in an action under the Federal Employers' Liability Act that there was no proof of negligence and that there should have been a directed verdict for the defendant. In that case defendant's station agent received injuries when she slipped and fell upon ice which had accumulated during the night. Defendant interposed the defense of non-negligence on its part, as well as assumed risk and contributory negligence on the part of the plaintiff. The court based its decision on the defense of non-negligence, as is evidenced by the concluding statement in its opinion, 275 U.S. at page 431, 48 S.Ct. at page 179:

"As negligence on the part of the petitioner is essential, we need not consider its contentions in respect of assumption of risk and negligence on the part of respondent."

Since the rendition of that decision and by the 1939 amendment to the Federal Employers' Liability Act, 45 U.S. C.A. § 54, the defenses of assumption of risk and contributory negligence have been abolished. While the court in the Aeby case, as shown, relied upon the defense of non-negligence, it is evident from the language employed that assumption of risk by the injured employee entered into the reasoning of ...