Auschwitz v. Wabash Ry. Co.

• Citation: 178 N.E. 403,346 Ill. 190
• Decision Date: 03 December 1931
• Docket Number: No. 20678.,20678.
• Parties: AUSCHWITZ v. WABASH RY. CO.
• Court: Supreme Court of Illinois

346 Ill. 190

178 N.E. 403

AUSCHWITZ

v.WABASH RY. CO.

No. 20678.

Supreme Court of Illinois.

Oct. 23, 1931.

As Modified on Denial of Rehearing Dec. 3, 1931.

Error to Third Branch Appellate Court, First District, on Appeal from Superior Court, Cook County; Marcus Kavanagh, Judge.

Action by Frederick A. Auschwitz against the Wabash Railway Company. The Appellate Court (259 Ill. App. 116) affirmed a judgment in favor of plaintiff, and defendant brings certiorari.

Reversed and remanded.Hay & Brown and Leesman & Roemer, all of Chicago, for plaintiff in error.

Royal W. Irwin, of Chicago, for defendant in error.

DUNN, J.

Frederick A. Auschwitz recovered a judgment in the superior court of Cook county against the Wabash Railway Company for $20,000 in an action on the case for personal injuries received on November 13, 1926. The Appellate Court for the First District affirmed the judgment, and the record has been brought before us in answer to a writ of certiorari.

The declaration was in four counts. The court instructed the jury that there could be no recovery on the third count. No cross-error having been assigned, no question arises on that count.

The plaintiff was a locomotive engineer employed by the defendant in interstate commerce and the suit was under the Federal Boiler Inspection Act (45 USCA § 22 et seq.). The first count alleged that the defendant carelessly and negligently furnished, provided, and maintained the tender of the locomotivefor the plaintiff's use in a dangerous and defendant condition, in that a certain step attached to the rear end of the tender was twisted, bent, and broken and was improperly and dangerously bent out away from the tender so that there was danger of the same fouling or striking against persons along and beside the track and rails as the locomotive and tender proceeded over them. The second count charged that the defendant failed to maintain the tender and its parts in proper condition and safe to operate and that the step ‘was bent, twisted and out of place and the same then and there improperly extended out beyond the outside of said locomotive and tender.’ The fourth count charged that the defendant furnished, provided, and maintained the tender and its parts in an improper condition and unsafe to operate, in that the step was bent and twisted and extended out too far away from the side of the tender; that the plaintiff complained to the defendant about the ‘dangerous and defective’ step, and thereupon the defendant promised that the ‘defective’ step would be ‘remedied, repaired, fixed and rendered safe to use,’ and ordered the plaintiff to use the tender with the ‘defective and dangerous' footboard, and ladder attached thereto, until it could be repaired. The dangerous condition relied on by the third count was furnishing, producing, and maintaining a certain wooden platform in a wet, greasy, and slippery condition. The plea was the general issue.

Each of the counts alleged that the plaintiff, in the exercise of due care for his own safety and in the performance of his duties, got off the locomotive as it was slowly proceeding over the track and was struck by the step and thereby thrown upon the track and run over by the cars attached to the locomotive.

The Federal Boiler Inspection Act provides: ‘It shall be unlawful for any carrier to use or permit to be used on its line any locomotive unless said locomotive, its boiler, tender, and all parts and appurtenances thereof are in proper condition and safe to operate in the service to which the same are put, that the same may be employed in the active service of such carrier without unnecessary peril to life or limb, and unless said locomotive, its boiler, tender, and all parts and appurtenances thereof have been inspected from time to time in accordance with the provisions of sections 28, 29, 30, and 32 and are able to withstand such test or tests as may be prescribed in the rules and regulations hereinafter provided for.’ 45 USCA p. 79, § 23. This act conferred on the Interstate Commerce Commission power to specify the sort of equipment to be used on locomotives in interstate commerce, and this power is exclusive of the power of the states. Napier v. Atlantic Coast Line Railroad Co., 272 U. S. 613,47 S. Ct. 207, 71 L. Ed. 432. In the exercise of this power the commission had maded an order in regard to sill-steps, which was in force at the time of the accident by which the plaintiff was injured, as follows: ‘Tender sill-step, steam locomotives, used in road service. Number, four on tender. Dimensions firm tread not less than 8 by 12 inches metal (may have wooden tread). If stirrup steps are used, stirrup length of tread shall not be less than 10, preferably 12, inches. Location, one near each corner of tank on side.’

The plaintiff testified in his own behalf and offered no other evidence. His testimony was that he was first employed by the Wabash in 1895 and from the time continued in its employment until his injury, on November 13, 1926. For about eight weeks before he was hurt he had been engineer on trains 70 and 71, operating between Bement and Forest, making the trip one way one day and back the next day, except Sunday. While he had this run from Bement to Forest, he left at 7:50. During the two months he had been on that particular run he had a twenty-hundred class engine; most of the time the same engine but once in a while another one. At different times during this time he had other engines. They were all of the twenty-hundred class. He believed he had a seven-hundred one trip. The night before the accident he was over in the hotel when his foreman came over and told him that he was going to get another engine in the morning. His name was Frank Bohn, and he was in charge of the machinery department at Bement and had charge of the engines. He saw that they went out on time, and he had three or four men working for him, cleaning fires and things of that kind. It was the foreman, Bohn, who gave him the engine he was to use. He causes the repairs to be made on the engines. The plaintiff was at the hotel in Bement when Bohn came to him and said, ‘If you have got any extra equipment on the engine you had better take it off, because I am going to give you another engine in the morning.’ The next morning the plaintiff went over a little earlier than usual. He got there about 6:30 in the morning and said to the foreman, ‘What engine do I get?’ It the foreman said, ‘That one standing over on that track-on the south-bound track.’ It was the 874. It is what is called F-7-the eight-hundred class. The plaintiff had not worked on that engine during the two or three years before he got hurt but he had on some similar to it. He got work on those engines between Chicago and Decatur. He had the 806 regularly for two or three years, but never worked on the 874 before this time. The F-7 engines are built similar. The 874 was equipped with a footboard back of the tender, running from one side of the engine tender to the other. It was used as a local freight engine and for switching and everything else. A local freight engine is a run that does all of the local work between designated points and does the local switching and passenger also. Those particular engines are built with a footboard on the rear of the tender. That footboard is about six inches above the rails and some of them are twelve or fourteen inches wide. He never measured this particular one but supposed it was about twelve or fourteen inches wide, made of wood. They used a big, heavy plank on that, about an inch and a quarter or an inch and a half thick, according to his judgment. The plank did not go out as far as the outside edge of the tender. It just barely came flush. There was a grabiron running on each side from top to bottom of the tank, at the corner. There was another step on the rear end, on the side of the tender, that is, right on the outside of the corner of the tank, probably six or eight or ten inches from the back end of the tank, fastened onto the sill of the tank, and the sill is right flush with the outside of the tank, the tank coming even with the sill. The sill is the structure on which the tank rests. Some of them used to be made of wood, and when they went into the shop they put a steel frame on them. There are two hangers to which the step is fastened. They are made of malleable iron, about eighteen inches long, and vary in thickness from one-fourth to three-eighths and some of them one-half inch thick-some thicker-and about two inches wide. By eighteen inches long he meant where it was fastened onto the tank to go down to where the step is. The tops of the hangers come under the sill there and are bolted on with two bolts. The bottom bends out and generally comes flush with the board, which is supposed to be eight inches wide. He meant when this bar came flush with the board it was bent out underneath so that the board rests on top of it and is bolted on with two bolts, two on each hanger. The bar comes out past the bottom part. There are four bolts. The steps are twelve to fourteen, sometimes fifteen, inches long. On the morning going out it looked like the board on that particular engine was about eight inches wide, but it was bent out. The width from the inside to the outside of it was eight and one-half inches and the length about fourteen inches. He had used engines with steps just like it. When he went over to the roundhouse on this morning the foreman pointed out this engine to him. He changed his clothes and got an oil can ready and started to oil around and get ready for the trip. That was around 6:45. When he got to the rear end on the right side he discovered the step, the hangers on it bent out. The hangers hang straight up and down, perpendicular. On account of being eighteen inches long something must have bumped up against them. Instead of hanging down straight they were projecting out-bulging out. They looked...