Avance v. Thompson

• Decision Date: 16 May 1944
• Docket Number: No. 27864.,27864.
• Citation: 55 N.E.2d 57,387 Ill. 77
• Parties: AVANCE v. THOMPSON.
• Court: Illinois Supreme Court

387 Ill. 77

55 N.E.2d 57

AVANCE

v.THOMPSON.

No. 27864.

Supreme Court of Illinois.

May 16, 1944.

Suit by Harry N. Avance against Guy A. Thompson, trustee of the Missouri Pacific Railroad Company, under the Federal Employers' Liability Act for injuries sustained while employed as a brakeman. A judgment for plaintiff was affirmed by the Appellate Court, 320 Ill.App. 406, 51 N.E.2d 334, and the defendant appeals.

Reversed and remanded for a new trial.Appeal from the Appellate Court for the Fourth District, on appeal from the Circuit Court, St. Clair County; Maurice V. Joyce, Judge.

Whitnel, Browning, Listeman & Walker, of East St. Louis (T. T. Railey, of St. Louis, Mo., of counsel), for appellant.

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

GUNN, Justice.

Plaintiff, Harry M. Avance, brought suit against Guy A. Thompson, trustee of the Missouri Pacific Railroad Company, in the circuit court of St. Clair county to recover under the Federal Employers' Liability Act for injuries sustained while employed as a brakeman. The trial resulted in a verdict for the plaintiff of $125,000. On motion for a new trial plaintiff assented to a remittitur of $25,000 and judgmentwas entered against defendant for $100,000. The Appellate Court for the Fourth District affirmed the judgment, and we have allowed an appeal to this court.

The complaint consisted of one count which charged the employment of the plaintiff as a freight brakeman in furtherance of a movement in interstate commerce at Bismarck, Missouri, January 17, 1942, and alleges the defendant violated the Federal Employers' Liability Act (1) in negligently operating certain cars causing them to collide with cars on which plaintiff was riding with unnecessary violence, by reason of which plaintiff was thrown from the car, run over and injured, and (2) in negligently kicking some cars against cars upon which plaintiff was working, without warning, resulting in the fall and injury. The defendant denied that at the time of the accident plaintiff was engaged in the furtherance of interstate commerce; denied the negligence charged; denied the injuries were the result of defendant's negligence, and averred affirmatively that the plaintiff's injuries were proximately caused by his own negligence, and that the plaintiff's rights were covered by the workmen's compensation law of the State of Missouri. On demand of plaintiff defendant filed a number of admissions pertaining to the commerce character of the plaintiff's employment. Before the trial stated the part of the answer referring to the workmen's compensation law of the State of Missouri was stricken on the motion of plaintiff.

The appellant contends the plaintiff did not prove the appellee was engaged in the furtherance of interstate commerce; and also that the court erred in giving an instruction that the plaintiff and defendant were engaged in interstate commerce and transportation at the time of the accident.

Briefly the facts show that plaintiff was about twenty-two years of age, lived at Poplar Bluff, Missouri, and was a brakeman on a train operating between Poplar Bluff and Bismarck, Missouri. In Poplar Bluff the train was made up by a switching crew; at the Bismarck terminal the train crew did the switching in the yards to make up the train. January 16, 1942, the train was operated from Poplar Bluff to Bismarck, arriving at about two o'clock in the afternoon. The crew had nothing more to do that day. On the following morning the plaintiff reported at the yards around about 6:30 and commenced the switching operations to make up the freight train which would return to Poplar Bluff that day. In the yards where this was being done the track known as the lead track ran in a northerly and southerly direction. A track leading to the coal chute branched off from this track. On this coal-chute track at a point northerly of the switch was a cut of five coal cars, two loaded and three empty. The two loaded cars were on the north end of the cut. It was the purpose to remove the three empty coal cars so they could be put over in the yards, and after they were pushed on to another switch to spot the loaded cars on the coal-chute track. In the meantime the engine attached to two boxcars and a tank car was on the same track to the north. It backed these cars into the chute track, coupled on to the five cars already there and proceeded to the north until it was beyond the switch from the coal-chute track to the lead track. The immediate object was to kick the three empty coal cars to the south far enough up the lead track to clear the switch, thus rendering it possible, when they had been disconnected, to push the two loaded cars of coal south again, past the switch to the coal chute.

The plaintiff was riding one of the empty cars that was to be pushed into the lead track, and while this operation was being carried on he claims he was knocked off by an unusually hard bump and lost both legs. There is some disagreement as to how this occurred, the plaintiff claiming that while the entire cut was moving very slowly it was suddenly bumped by the movement of the engine crew, causing him to fall. Other witnesses testified that the three empty cars were cut loose and failed to move far enough down the track to clear the switch, and then in order to get them past the switch point the engine came down and made a coupling to push them over rather than to kick them over, and that plaintiff was warned of this movement. At any rate, while the plaintiff was riding upon the three empty cars he fell and was injured.

Of the three cars connected with the engine one was an empty tank car known as PTX 4741. It is contended this car was one that was moving interstate from a point in Illinois to one in Arkansas. This car came from the Missouri and Illinois Railroad, and a part of the duties of the crew that morning was to switch cars from the Missouri and Illinois Railroad in the yards, as well as make up the train going from Bismarck, Missouri, to Poplar Bluff, Missouri. The PTX 4741 car was arriving with the Missouri and Illinois Railroad train. It is claimed by plaintiff that this and other cars switched at the coal chute came from Illinois. Defendant says there is no proof that they came any further than from Ste. Genevieve, Missouri.

The contention of the appellant is two-fold: (1) that until the train from Bismarck to Poplar Bluff was made up plaintiff's crew was engaged entirely in a switching operation, and that the work in which they were actually engaged at the time of the accident was moving the three empty cars which were to remain in the yards so they could spot the loaded coal cars at the chute, and (2) that the movement of the PTX 4741 car attached to the engine had no relation to interstate commerce, and was only moved with the engine and other cars in connection with switching the empty cars in the yards. It is also contended that, since there was...