Barry v. Elgin, J. & E. Ry. Co.

• Decision Date: 01 March 1971
• Docket Number: Gen. No. 53324
• Court: United States Appellate Court of Illinois
• Parties: Edward D. BARRY, Administrator of the Estate of Joseph J. Barry, Deceased, Plaintiff-Appellant, v. ELGIN, JOLIET & EASTERN RAILWAY COMPANY, a corporation, and Dean Wallace, Defendants-Appellees.

Page 152

270 N.E.2d 152

132 Ill.App.2d 371

Edward D. BARRY, Administrator of the Estate of Joseph J.

Barry, Deceased, Plaintiff-Appellant, v. ELGIN, JOLIET & EASTERN RAILWAY COMPANY, a corporation, and Dean Wallace, Defendants-Appellees.

Gen. No. 53324.

Appellate Court of Illinois, First District, First Division.

March 1, 1971.

John A. Doyle and Hugh J. McCarthy, Chicago, for plaintiff-appellant.

Hackbert, Rooks, Pitts, Fullagar & Poust, Chicago, for defendant-appellees; Paul Noland, James T. Harrington, Chicago, of counsel.

GOLDBERG, Justice.

This appeal brings before the court a most tragic industrial accident which resulted in the death of Joseph J. Barry on September 3, 1964. At that time, he was 19 years of age and was employed by the United States Steel Company in its foundry in Chicago. Plaintiff is administrator of the estate of the deceased and claims damages for alleged wrongful death and recovery of funeral expenses. Deceased left surviving his father, mother, one brother and one sister.

The defendants are the Elgin, Joliet and Eastern Railway Company, a corporation, (referred to as the 'Railway') and Dean Wallace, an employee of the Railway. Plaintiff claims negligence on the part of defendants in operation of a train of cars upon a switchtrack running inside the foundry.

Plaintiff's complaint charges that defendants failed to exercise ordinary care to maintain a lookout prior to moving the railroad cars; moved the cars when danger to deceased was imminent; failed to give adequate warning of the movement of the cars considering the noise and activity within the foundry; moved the cars when danger to deceased was imminent, of which danger they knew or should have known; failed to stop the cars prior to striking deceased; and failed to use an adequate system of control for moving the cars. The answer of defendants denies that deceased was in the exercise of ordinary care for his own safety considering his age, intelligence, capacity and experience, and alleges that the deceased was inattentive and negligent and that this proximately caused his death. The answer admits that defendants were operating the train in question but denies that the operation was under their control or direction. The answer also denies the specified charges of negligence.

There was trial by the court without a jury. The judgment order found the issues in favor of defendants and directed entry of an appropriate judgment. The order also contained a 'finding of fact' that plaintiff failed to sustain the burden that decedent was in the exercise of ordinary care for his own safety and a 'conclusion of law' that defendants were under no duty to warn persons inside the foundry of impending danger and that they did not undertake to do so.

The question of propriety of these two portions of the order, that is the finding of fact and the conclusion of law, constitutes the two basic issues in this appeal. There are also several collateral questions presented, as hereinafter noted. Determination of the two basic issues first requires description of the complicated area and of the technical process in the foundry. Truly a series of pictures would save many words at this point. The foundry building is operated by United States Steel Corporation. The building is approximately 200 feet in depth. It was erected some 40 or more years ago and is apparently used for casting heavy iron objects. The length of the entire structure runs from north to south. However, the single track in question enters the foundry building on its east side and goes entirely through to the west or back end of the building.

This track approaches the foundry in a large curved arc. It does not become straight until shortly after it enters the front or east end of the building. As it progresses in a westerly direction, the track passes a number of so-called bays or divisions of the foundry. There bays are divided by walls with doors large enough to permit passage of a train.

At the east entrance to the building, there is a gate which may be closed to bar the tracks or opened by steel company personnel inside the foundry. Commencing at this eastern entrance, there is first the Stool Foundry Bay, 65 feet in length. Next is an Oven Bay of 30 feet; then an Ingot Mold Bay 65 feet long; and, finally, at the rear end, a Storage Bay 33 feet in length. In the first bay, there is a large mechanism called a ladle tipper, used in the process of pouring out the contents of the ladles. Similarly, there is a ladle tipper in the Ingot Bay. The foundry also contains seven huge overhead cranes. Each of these machines is equipped with a warning bell which sounds when the crane is in operation. These bells are mechanically operated by a foot pedal. The volume of sound emitted by them will build up to a climax and then drop off.

In operation of the foundry, an engine would approach the front gate of the building. The engine would be pushing a number of so-called ladle cars containing hot metal. These cars, which are sometimes referred to as 'ladles', are about 25 feet long, 10 feet wide and 10 feet high. Immediately at the entrance door, there is a large sign in block letters advising that locomotive and crew of the Railroad may not go beyond that point. The ladle cars are pushed by the engine which thus would be behind them as they enter the plant. To admit the cars, the operator of a tipper would open the gate and turn on the bells. There are three separate warning bells in the foundry which operate continuously when the gate is open and the switching process is being performed by Railway equipment in the foundry. One bell is at the outside of the first bay near the entrance; another on the farther or west wall of the first bay and the third deep inside the foundry on the west wall of the third bay referred to as the Ingot Mold Bay. There is also a red warning light inside the foundry at the east gate to warn of the operation of the train. The light goes on at the same time as the three warning bells.

In the process of supplying hot metal to the foundry, the front gate was opened so that the Railway engine could then back the cars into the building on the switchtrack. The tipper operator could spot the cars or put them into proper position so that the ladle could be tipped and the hot metal emptied out. When the ladle cars had been emptied, they could be moved back to the foundry entrance by means of a car puller winch with cables which was operated by the tipper man. About ten to fifteen minutes would elapse from removal of the empty cars until the loaded cars would enter the foundry.

The deceased was employed by the foundry as a so-called 'gas man'. He would pull the cable from the winch and append it to one of the empty ladle cars so that the tipper operator could then move the empty car, by means of the winch, to the entrance for removal by the Railway engine and crew. The deceased had been employed as a laborer on August 5, 1964. Five and one-half days before his death, he was promoted to this new assignment. At the time of the occurrence, he was in excellent health and had good eyesight and hearing and no physical defects. He had completed his high school education in June of 1964.

On September 3, 1964, at about 11:00 a.m., deceased had pulled the cable into position to be used to remove empties. Four empty ladle cars were removed from the foundry by the engine operated by the Railway crew. The engine backed away with these empty cars and then three loaded ladle cars were appended to the last of the empty cars. The engine then proceeded upon the curved track toward the plant pushing the series of four empty ladle cars together with the three full ladle cars in front of them. The Railway train crew consisted of the defendant, Wallace, who might be termed a conductor or a switchman, his helper and the engineer. The train stopped with the first loaded car near the foundry entrance.

One of the tipper operators, Francisco Cardenas, walked to the gate and opened it. He looked west down the track, into the foundry, and saw nobody. He activated the three warning bells and also the red light at the gate. Cardenas then told deceased to pull the cable and saw him pull it from east to west. He did not see deceased thereafter. He then started to return to his crane; and, when 40 to 60 feet west of the gate, he gave the defendant, Wallace, the signal to go on. Wallace was outside the foundry walking in front of the loaded ladle cars. As he approached the foundry entrance, he could see through the entire building and had a clear view of the whole track. Wallace testified that he looked in all directions and made sure that his assistant was in proper position to see him. When the first two cars had entered the door, Wallace had no view of the engineer and could not see him. Also, his view of that portion of the track within the foundry was obstructed. But he had a view of his assistant to whom he always gave signals which were then transmitted to the engineer to regulate the motion of the engine.

Wallace testified that he looked before the train started and that he saw no one between the rails through the entire plant. He did not see deceased in the plant at any time before the occurrence. The train proceeded at a slow pace. One witness said the train was 'creeping'. Wallace permitted the train to continue backing into the building until six of the ladle cars were within the entrance and one was outside. He then gave the signal to stop the train at its customary place. In this operation, the engineer could not see the gate as soon as the first ladle car had reached it. When the train had stopped, some person shouted to Wallace that the train had run someone over. Wallace walked into the foundry and saw the body of the deceased between the first two ladle cars; that is, the ones farthest from the engine, which had first entered the plant. Deceased had been killed instantly....