Bhd. of R.R. Trainmen v. Elgin, J.&E. Ry. Co.

• Decision Date: 09 March 1943
• Docket Number: No. 26697.,26697.
• Citation: Bhd. of R.R. Trainmen v. Elgin, J.&E. Ry. Co., 382 Ill. 55, 46 N.E.2d 932 (Ill. 1943)
• Court: Illinois Supreme Court
• Parties: BROTHERHOOD OF RAILROAD TRAINMEN v. ELGIN, J. & E. RY. CO.

382 Ill. 55

46 N.E.2d 932

BROTHERHOOD OF RAILROAD TRAINMEN

v.ELGIN, J. & E. RY. CO.

No. 26697.

Supreme Court of Illinois.

Jan. 19, 1943.

As Modified on Denial of Rehearing March 9, 1943.

Appeal from Circuit Court, Cook County; John Prystalski, judge.

Proceeding by the Brotherhood of Railroad Trainmen against the Elgin, Joliet and Eastern Railway Company on complaint filed with the Illinois Commerce Commission alleging improper servicing of caboose cars, wherein the Commission granted the relief sought.From a judgment of the Circuit Court on appeal affirming the order of the Commission, defendant appeals.

Judgment affirmed.Harry I. Allen, Royal B. Cushing, and Paul R. Conaghan, of Chicago (Knapp, Cushing, Hershberger & Stevenson, of Chicago, of counsel), for appellant.

Abram A. Schwarzbach and Alvin E. Stein, both of Chicago, for appellee.

George F. Barrett, Atty. Gen. (Albert E. Hallett, Jr., of Chicago, of counsel), for Illinois Commerce Commission.

GUNN, Justice.

In February, 1939, an amended complaint was filed with the Illinois Commerce Commission by the Brotherhood of Railroad Trainmen against appellant, Elgin, Joliet and Eastern Railway Company, alleging that the latter had failed to supply and service its caboose cars with drinking water and ice in sanitary, practical and suitable containers, and also failed to furnish and supply sanitary and suitable drinking cups in the operation of its trains in the State of Illinois, and as the result of such failure the lives, health, safety and comfort of trainmen and switchmen riding in such cabooses were endangered.The parties will hereafter be referred to as the ‘brotherhood’ and the ‘railway company.’

To the amended complaint the railway company filed a motion to dismiss, which was argued before the taking of testimony and denied by the commission.Thereafter an answer was filed alleging in substance there was no provision of the Public Utilities Act requiring a railroad to service its caboose cars with drinking water and ice, and that the commission had no power to decide what constituted suitable containers and suitable drinking cups.Evidence was heard before the commission and an order entered directing the defendant to maintain a drinking-water container of modern design, in each and every caboose car in the service on its railroad in Illinois, and to have supply men in the East Joliet yards fill the containers with drinking water, and supply ice and cups for a normal road trip.

The railway company filed an appeal to the circuit court of Cook county, which modified and revised the order of the commission.On appeal to this court, the case was remanded with directions to either affirm or set aside the order of the commission.Brotherhood of Railroad Trainmen v. Elgin, Joliet & Eastern Railway Co., 374 Ill. 60, 28 N.E.2d 97.On September 23, 1940, the circuit court of Cook county set aside the order of the commission.On its own motion the commission on September 24, 1940, reopened the proceeding; additional testimony was taken, and the order now complained of entered.The railway company filed with the commission its application for rehearing, which was denied on June 25, 1941.An appeal was taken to the circuit court of Cook county, and January 14, 1942, the circuit court affirmed the order of the commission, from which order the railway company now appeals.

The railway company is a common carrier.It operates a belt line from Joliet, Illinois, to Waukegan, Illinois, and from Joliet, Illinois, to terminals in South Chicago, Illinois, and Gary, porter and Whiting, Indiana.It does not maintain passenger service.The length of the road operating to Waukegan is 75 miles, and that to South Chicago and Indiana points 56 miles.Transfer trains operate within the vicinity of the terminals for distances of from one to five miles.All road trains and transfer trains carry cabooses.The conductor and one or two switchmen ride in the cabooses.Each caboose is equipped with a small compartment lined with zinc, known as a water cooler.During summer months employees riding in the cabooses place ice and drinking water in these compartments.Ice is supplied at each terminal of the railway company in Illinois and Indiana.Trainmen riding in the caboose carry drinking water and ice to the caboose attached to their train; the bucket for the drinking water is supplied by the railway company.Some members of the crews riding in cabooses furnish their own drinking water.The railway company does not furnish paper drinking cups to its employees, but has offered to furnish each employee, riding in cabooses, with a thermos jug and an individual glass or cup.This was refused by the brotherhood.

There was no formal demand for the relief granted until the filing of the amended complaint.The evidence shows there was an agreement between the railway company and the trainmen relative to supplying ice and furnishing drinking water, which has been complied with by the railway company, and that there is no railroad in the United States that furnishes paper drinking cups to men working in cabooses.About fifteen trains a day depart from Joliet to points within the State of Indiana, and a like number of trains from East Joliet for points north.Eighty per cent of the freight carried by these trains originates outside the State of Illinois.Most of the ice obtained on the Indiana route is obtained at Porter, Indiana.There are 66 sources of drinking water on the railroad, and at least once a year water from each source is examined, in accordance with the requirements of the drinking-water standards set forth by the United States Public Health Service.The evidence discloses there are 118 caboose cars in operation on the railroad, and the railway company claims that at no time has any employee been injured, or his health endangered on account of carrying ice and drinking water to caboose cars.

The brotherhood introduced evidence tending to show the water containers were unsanitary; that the upper part of the container was a sink, the waste pipe of which went through the ice container; that the water was kept in an open bucket, and sometimes food was stored in the same place.It also showed there were a great number of train movements in the yards over many tracks, and that the men in order to obtain their drinking water had to go distances varying from 375 to over 1,200 feet across these tracks in all kinds of weather, and during the day and night.The commission found that more than 70 tracks were used to break up trains, switch and classify cars; that on each switch train there was a caboose and a train crew of conductor and brakeman; that in each caboose was a wooden ice box in which ice and a drinking-water bucket were placed, the top of which box consisted of a sink used as a wash basin, and having an open drain beneath, which extended along one side of the ice-water compartment; that the ice was obtained by trainmen from storge boxes located at the ends of the yards, and at points inaccessible for convenient use, and that in order to obtain ice and water it was necessary to cross tracks, where switching was being continuously carried on under all sorts of weather conditions, both night and day, which constituted a hazard to the men; that dust and dirt were frequently blown into open pails used to get water from the stores of supplies, and that the contamination of the drinking water and ice in the cabooses could only be precluded by the substitution of a drinking-water container in place of the ice boxes now in use; that the present ice boxes are unsanitary and a hazard to the common health, comfort and safety; and that a common ladle or drinking cup is frequently used in connection with the unsanitary containers; and that impairment of health, comfort and safety of the trainmen by reason of the conditions described may materially affect the health, safety and comfort of the public in general, as well as other trainmen.

The railway company raises many objections to the order of the commission, the first of which is that its order is in conflict with the Public Health Acts of Congress.This point is raised for the first time in this court.It is not set out in any of the motions, nor is it contained in the motion for rehearing presented to the Commerce Commission.Section 67 of the Public Utilities Act, Ill. Rev.Stat.1941, chap. 111 2/3, par. 71, among other things provides: ‘No appeal shall be allowed from any rule, regulation, order or decision of the Commission unless and until an application for a rehearing thereof shall first have been filed with and acted upon by the Commission.No person or corporation in any appeal shall urge or rely upon any grounds not set forth in such application for a rehearing before the Commission.’Appeals from orders of the Commerce Commission are purely statutory, and to become legally effective they must be prosecuted in accordance with the requirements of the statute.Village of Waynesville v. Pennsylvania Railroad Co., 354 Ill. 318, 188 N.E. 482.This point, not having been preserved in the manner required by statute, is not available to the appellant in this court.

The second point raised by the railway company is that the order of the commission burdens and obstructs interstate commerce.It is true that the switching operations of cabooses carry them across the State line into Indiana, but the order of the commission is limited to their cabooses in service upon appellant's railroad in Illinois.A great number of authorities are cited by both parties on this point, but it is only necessary to advert to the fact that both this court and the Supreme Court of the United States have held that the State, by virtue of its inherent and reserved police power, may enact laws promoting the peace and good order of society, for the preservation of life and health, or conducive to the comfort, convenience and welfare of the people,...