Beattie v. Elgin, Joliet and Eastern Railway Co., 11219.

• Citation: 217 F.2d 863
• Decision Date: 19 January 1955
• Docket Number: No. 11219.,11219.
• Parties: Francis P. BEATTIE, Plaintiff-Appellee, v. ELGIN, JOLIET AND EASTERN RAILWAY CO., Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

217 F.2d 863 (1954)

Francis P. BEATTIE, Plaintiff-Appellee, v. ELGIN, JOLIET AND EASTERN RAILWAY CO., Defendant-Appellant.

No. 11219.

United States Court of Appeals Seventh Circuit.

December 7, 1954.

Rehearing Denied January 19, 1955.

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

Edward B. Henslee, Robert J. Kenney, Chicago, Ill., Henry W. Lehmann, Chicago, Ill., for appellee.

Before FINNEGAN, SWAIM and SCHNACKENBERG, Circuit Judges.

SCHNACKENBERG, Circuit Judge.

This is an action arising under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., to recover damages for injuries sustained by plaintiff, a switchman employed by defendant, because of defendant's alleged negligence in failing to furnish plaintiff with a reasonably safe place in which to do his work and in allowing oil or grease to remain on the steel platform of the coal dumper where plaintiff had to do his work. The jury returned a verdict for the plaintiff for $25,000. Judgment was entered on the verdict. Defendant's motion for judgment notwithstanding the verdict, or in the alternative, for a new trial was denied, and this appeal followed. The errors relied on arise out of the court's failure to direct a verdict for the defendant, or to enter judgment for the defendant notwithstanding the verdict.

There was evidence at the trial which, if believed, would have justified the jury in finding that the facts now set forth were established.

Plaintiff, about 70 years old, was working for the defendant carrier as a switchman shortly after midnight on August 20, 1950, the time of the accident. His work took him onto a coal dumper, an assignment which he had had for fifteen years or more.

This dumper, which the United States Steel Corporation owned, was an iron and steel structure with a cradle in it which was hoisted by means of a power motor and two cables. Thus a coal car placed in the cradle was lifted and tilted toward the side and emptied. The cables, made of steel and about the thickness of a man's wrist, were located one at each end of the dumper. The east cable was directly over the narrow steel platform of the cradle where plaintiff would stand when uncoupling a loaded coal car on the cradle. These cables were lubricated with a fairly fluid oil and tar mixture. Every three or four weeks steel company maintenance men daubed this mixture on the cables with a brush having a four foot long handle as the dumper was in operation. Oil fell down in drops steadily after it was applied. There was always grease around when the cars were turned upside down, and oil on the packing dropped down from the cars to the platform itself. In summer time, when it was warm, there was more grease than in winter time. The grease on the steel platform would get on the shoes of the switchmen and be tracked around and carried across the concrete abutment where the power switch was located. There was grease on the iron platform and the upright or frame of the cradle on the night of August 20, 1950, when the accident occurred. The coal dust would cover grease or oil on the platform or surrounding area. Steel company employees never cleaned up the grease on the platform. Plaintiff and the other crew members would clean the grease off the platform or cover grease and oil on the concrete abutment with ashes. It was not part of plaintiff's duty to clean up the area where he worked and in fact when cars were moving and the dumper was in operation he did not have the time to wipe or clean grease from the cradle or platform.

Plaintiff was foreman of the railroad crew of five men working at the coal dumper on August 20, 1950. The crew had a locomotive with which to move the loaded cars onto the cradle of the dumper and shove off the empties.

It was the duty of the railroad crew to spot the loaded cars on the cradle of the dumper. Plaintiff received his instructions from the dumper operator, a steel company employee, who would tell plaintiff what cars he wanted brought in. The engineer of the railroad crew then shoved these cars onto the cradle one at a time. The dumper operator standing on a platform above the cradle would shout to plaintiff "when the car was spotted," whereupon the operator set the clamps which held the cars to the rails on the cradle. Plaintiff, as a part of his duty, would then uncouple the car on the cradle from the string of cars to which it was attached and signal the engineer to pull the remaining cars to the east. While performing these duties and setting brakes when necessary, plaintiff would stand on a narrow steel or iron platform which was part of the floor of the cradle and which went up with the rest of the cradle and the coal car to be dumped. Above the platform was the east cable.

When the spotting of a car was completed, plaintiff would step from the iron platform, which was part of the movable cradle, and onto a narrow concrete platform to the south and east of the iron platform and adjacent to a switch box having a lever, which controlled the flow of electric power to the dumper mechanism, and he would move the lever to an upright position. This concrete platform was 18 inches wide running east and west and the switch box adjacent thereto was about four feet south of the nearest rail crossing through the dumper. When standing on the narrow concrete abutment to throw the power switch, one "would be standing possibly about 1½ or 2 feet off the cradle."

The placing of the switch in an "on" position would enable the dumper operator above to operate the coal dumper mechanism by means of controls located in a cabin off the ramp or platform above the cradle on the west end of the dumper. The operator upon being apprised by a clapper that the power was turned on, would pull the controls to raise the cradle and coal car and dump the coal. The coal car on the cradle would be hoisted to a height of about 18 feet with the cradle and tilted "2/3 to ¾ of the way over" in a north direction so that the coal dumped out from that height, which was a dusty operation. Grease and oil might be expected at any and all times there on the little platform of the cradle.

Plaintiff and his railroad crew had begun their shift at 11 P.M. on August 19, 1950. After two or three cars were unloaded, plaintiff had a N. & W. loaded coal car on the cradle. Upon uncoupling this car and signaling...