Avance v. Thompson

• Decision Date: 30 October 1943
• Docket Number: Ag. No. 14.
• Citation: 51 N.E.2d 334,320 Ill.App. 406
• Parties: AVANCE v. THOMPSON.
• Court: United States Appellate Court of Illinois

320 Ill.App. 406

51 N.E.2d 334

AVANCE

v.THOMPSON.

Ag. No. 14.

Appellate Court of Illinois, Fourth District.

Oct. 30, 1943.

Appeal from Circuit Court, St. Clair County; Maurice V. Joyce, Judge.

Suit by Harry M. Avance against Guy A. Thompson, trustee, Missouri Pacific Railroad Company, to recover damages under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., for injuries sustained by plaintiff while employed as a brakeman by defendant company. From a judgment for plaintiff, defendant appeals.

Judgment affirmed. Whitnel, Browning, Listeman & Walker, of East St. Louis, for appellant.

Joseph B. McGlynn, of East St. Louis, and Robert J. McDonald and William H. DeParcq, both of Minneapolis, Minn., for appellee.

STONE, Justice.

This is a suit brought by Harry M. Avance, plaintiff-appellee (hereinafter designated as plaintiff), against Guy A. Thompson, trustee, Missouri Pacific Railroad Company, a corporation, defendant-appellant (hereinafter designated as defendant), to recover damages under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., for injuries sustained at Bismarck, Missouri, on January 17th, 1942, while employed as a brakeman by defendant company. The accident resulted in his right leg being amputated about three inches above the knee and his left leg about four inches below the knee.

The complaint consisted of one amended count, and it alleged, in substance, the employment of plaintiff by defendant as a freight brakeman in the switching of certain cars and participating in the furtherance of the movement of interstate commerce at Bismarck, Missouri, on January 17th, 1942, and that defendant violated the Federal Employers' Liability Act in that defendant wrongfully and negligently pushed, kicked, hit and operated some cars on the same track on which were located the cars on which plaintiff was at work, causing these cars to collide with the cars on which plaintiff was so at work, with such force as to throw plaintiff to the ground and injuring him, and that no warning or notice was given of the approach and contact of these cars.

In his answer, defendant denied that at the time of the accident plaintiff was engaged in the furtherance of interstate commerce; denied the negligence charged; denied plaintiff's injuries were the result of defendant's negligence; averred plaintiff's injuries were proximately caused by his own negligence, which in any event contributed thereto.

A trial by jury resulted in a verdict for $125,000. On motion for new trial plaintiff assented to a remittitur of $25,000, and judgment was entered against defendant for $100,000 and costs, from which judgment defendant prosecutes an appeal to this Court.

Plaintiff at the time of the accident was 22 years old. On May 28, 1941, after about twelve student trips for instruction, he started work for defendant as a brakeman operating out of Poplar Bluff, Missouri. On the morning of the accident, the train crew's work was to switch the yard at Bismarck, make the Missouri and Illinois R. R. delivery and make up their train to be hauled to Poplar Bluff. This crew consisted of Maddox, conductor; Morse, head brakeman; Hayes, engineer; plaintiff, rear brakeman; Robertson, plaintiff's father-in-law, fireman; and Brandon, who was sort of assistant conductor.

In the yards a track known as the lead track ran in a northerly-southerly direction. The coal chute track branched off the lead track. This coal chute track was used to supply the coal chute with coal, and standing on it at a point northwardly from its junction with the lead track were in order, two loaded coal cars and then three empty coal cars. It was purposed to remove the three empty coal cars so that they could be put over in the yards and then spot the loaded coal cars on the coal chute track. At the time the engine was headed south and was just south of the coal chute switch. It had hold of two box cars and a tank car which it had brought back from the Missouri and Illinois R. R. connection. It backed these cars into the coal chute track, coupled onto the two loaded coal cars and proceeded backwards until it had coupled onto the three empty coal cars. Then it returned southwardly off of the coal chute track past the switch and drew the entire cut of cars onto the lead track. The immediate object of the foreman was to kick the three empty coal cars far enough up the lead to clear the switch leading to the coal chute, thus enabling him to spot two coal cars and return and pick up the three empties. Brandon, who in the absence of Conductor Maddox was in charge of the movement, decided to do this by kicking them instead of shoving them under engine control.

It is claimed by plaintiff that Brandon instructed him to ride the cars and tie them down when they came to a stop, and claims he was given no information or instructions concerning the next stop. Brandon claims that he directed plaintiff to ride the three empty coal cars and watch out for them, to ride the cars until they came to a stop, and to watch them in case another engine came out, or if they fouled the roundhouse switch 443 feet north of the coal chute switch.

The cars were travelling at a speed variously estimated by plaintiff at two miles an hour, by brakeman Morse at three or four miles an hour, by engineer Hayes at six or seven miles an hour, and by brakeman Brannon at seven to nine miles an hour, when plaintiff got to the southwesterly corner of the most northerly car, going immediately to the brake platform at that corner. Plaintiff took his station on the brake platform three feet below the top of the car, facing toward the north, in the direction in which he was travelling, with his back toward Brannon and the engine intending to set the brake when the car stopped. Brannon claims that he shouted to plaintiff, “Lookout, I am going to bump them,” and that plaintiff answered, “O. K. let them bump.” Morse also testified to this in substance. Brannon then signalled the engineer to back up. Plaintiff claims that he had not started to set the brake, when he heard someone say, “Look out” and there was a loud crash. This cry and the crash, so he testified, came at the same time and the impact knocked him to the ground. Plaintiff fell on the track, and the trucks of two of the coal cars ran over his legs, causing the injury complained of. Principal errors relied upon for reversal are, that the verdict is against the manifest weight of the evidence on the question of the commerce character of plaintiff's employment; that the court erred in striking defendant's special defense based on the Missouri Workmen's Compensation Act, Mo.R.S.A. § 3689 et seq.; that the court erred in ruling on evidence, particularly in the admission of a mortality table; that the verdict is excessive; and that the court erred in the giving of certain instructions to the jury.

The error assigned that the court erred in striking defendant's special defense based on the Missouri Workmen's Compensation Act is not argued. Where a party objects in his brief on appeal to rulings of the trial court but gives no reasons or arguments and cites no authorities to support his objection, this point will be considered waived. Joseph Schlitz Brewing Co. v. Mahozki, 108 Ill.App. 511.

It is urged that the trial court erred in admitting in evidence a mortality table, and cite in support thereof, Chicago, B. & Q. R. Co. v. Johnson, 36 Ill.App. 564. It is true, that in that early case, it was held error to admit such a table, the reasoning of the court there being, that it was not competent to thereby show the probable duration of life of the injured party, and to indicate how long that party would suffer. In the later case of Foley v. Everett, 142 Ill.App. 250, the court said, “The appellee is entitled to all the earnings that he has lost by reason of his loss of time since the injury and all that he will lose in the future. He is entitled to compensation for all his suffering, pain, and inconvenience, past and prospective, and compensation for all medical expenses necessarily incurred by him. In arriving at the amount he is entitled to recover, his age and expectancy of life should be considered in connection with both his earning capacity and suffering.” We know of no better way of showing his expectancy of life, as the rule is laid down in the Foley case, than by giving the jury the benefit of a standard mortality table. As the court said in the case of Vicksburg & M. R. Co. v. Putnam, 118 U.S. 545, 554, 7 S.Ct. 1, 2, 30 L.Ed. 257, “In order to assist the jury in making such an estimate, standard life and annuity tables, showing, at any age, the probable duration of life, and the present value of a life annuity, are competent evidence.” Certainly this would be so in cases of permanent injury not causing death or total disability. Louisville & N. R. Co. v. Burns, 6 Cir., 242 F. 411. We are not inclined to hold that the trial court erred in the admission of this exhibit.

Defendant further claims that plaintiff was not in any way concerned with interstate commerce. The statute, broadened by the 1939 amendment, now reads, “Any employee of a carrier, any part of whose duties as such employee shall be the furtherance of interstate or foreign commerce; or shall, in any way directly or closely and substantially, affect such commerce as above set forth shall, for the purposes of this chapter, be considered as being employed by such carrier in such commerce and shall be considered as entitled to the benefits of this chapter.” 45 U.S.C.A. § 51. In construing such amendment in the late case of Edwards v. Baltimore & O. R. Co., 7 Cir., 131 F.2d 366, 369, which involved a machinist's helper repairing an engine, the court said, “Despite any question as to whether plaintiff might have recovered under the original act * * *, it is clear that he is within the scope of the amendment. Under the original statute experience demonstrated continued...