Biggerstaff v. New York, C. & St. L.R. Co.

• Decision Date: 19 February 1957
• Docket Number: Gen. No. 46922
• Citation: 141 N.E.2d 72,13 Ill.App.2d 85
• Parties: Earl BIGGERSTAFF, Appellant, v. The NEW YORK, CHICAGO AND ST. LOUIS RAILROAD COMPANY, a corporation, Appellee.
• Court: United States Appellate Court of Illinois

Page 72

141 N.E.2d 72

13 Ill.App.2d 85

Earl BIGGERSTAFF, Appellant, v. The NEW YORK, CHICAGO AND ST. LOUIS RAILROAD COMPANY, a corporation, Appellee.

Gen. No. 46922.

Appellate Court of Illinois, First District, Second Division.

Feb. 19, 1957.

Henslee, Monek & Murray, Chicago, Francis H. Monek, Melvin L. Griffith, Chicago, of counsel, for appellant.

Winston, Strawn, Smith & Patterson, Chicago, Douglas C. Moir, Edward J. Wendrow, Chicago, of counsel, for appellee.

McCORMICK, Judge.

The defendant, The New York, Chicago and St. Louis Railroad Company, was sued by Earl Biggerstaff in the Superior Court of Cook County under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq. to recover damages for injuries received by him as the result of defendant's alleged negligence in the course of his employment. The case was tried before a jury which returned a general verdict in favor of the defendant. The court entered judgment and subsequently overruled plaintiff's motion for a new trial making the judgment final. This appeal is from that judgment.

The plaintiff here contends that the verdict of the jury was against the manifest weight of the evidence and that the court erred in submitting certain instructions and special interrogatories to the jury at the request of the defendant.

The cause of action grew out of an accident which occurred on April 13, 1950 at Bluffton, Indiana. The plaintiff was a patrolman employed by the defendant and on the day of the occurrence in question he rode to Bluffton in a 'rider caboose' directly behind the engine of a freight train. The caboose was a converted boxcar equipped with a stove, coal bunker, and two used passenger seats. When the train arrived at Bluffton the plaintiff left the caboose at the depot. The train went into the yards for the purpose of breaking up the train to pick up and deliver certain freight cars and to make up the train for its further trip. The plaintiff went about his duties, and later walked back through the yards to the rider caboose, which was standing on the 'passing track.' At this time there were several cars attached to the caboose, which were to go through as a part of the train. According to plaintiff, in a coupling operation the engine backed some cars into the cars attached to the rider caboose with such force as to knock him out of his seat and jam him into the coal bunker in such a manner as to force his right knee into the hollow back of his left knee, twisting his left leg, which struck the bunker at a point left of the shin bone about half way between the ankle and the knee. His leg pained him. He massaged it and he felt better. About twenty minutes later the conductor came to the caboose to report to the plaintiff an accident which had occurred a short distance away where some ladies had backed their automobile into the engine. The plaintiff testified that he told the conductor what had happened to him. This was denied by the conductor. Some two weeks later the plaintiff's left leg was amputated. There was a conflict in the medical testimony as to whether the physical condition of the plaintiff which required the amputation of the leg could or could not have been caused by the trauma which he claimed he had suffered at the time of the accident.

The jury returned a general verdict. Three interrogatories were submitted to the jury at the request of the defendant. The record shows no objection made by the plaintiff to the interrogatories. The first interrogatory was: 'Was defendant guilty of negligence in the manner in which it coupled the cars onto the caboose that plaintiff was within?' The second was: 'Did any of the employees of defendant know, or have reasonable grounds for believing that plaintiff was inside of the caboose at the time of the occurrence in question?' The third was: 'Was the amputation of plaintiff's left leg caused solely by any physical condition which he had prior to the occurrence in question?' All of the interrogatories were answered 'No' by the jury. In order to show negligence it was necessary for the plaintiff to prove that the defendant negligently coupled the cars to the caboose and so caused injury to the plaintiff, and to show that the employees of the defendant either knew or had reasonable grounds for believing that the plaintiff was inside the caboose at the time of the occurrence. Chesapeake & O. R. Co. v. Mihas, 280 U.S. 102, 50 S.Ct. 42, 74 L.Ed. 207; Rogers v. New York, C. & St. L. R. Co., 328 Ill.App. 123, 65 N.E.2d 243. Interrogatories 1 and 2, which were answered 'No' by the jury, covered both these issues. They are in accord with the general verdict.

The plaintiff argues that the verdict was against the manifest weight of the evidence and that the answers to the special interrogatories were not responsive to the evidence. In his motion for new trial the plaintiff calls attention to the giving of the three interrogatories and only says that the court erred in submitting them to the jury. He made no motion to strike the answers to the interrogatories, nor did he allege that they were contrary to the manifest weight of the evidence, though in the motion he did urge that the verdict was contrary to the manifest weight of the evidence. In Forslund v. Chicago Transit Authority, 9 Ill.App.2d 290, 132 N.E.2d 801, we held that where a finding is substantially conclusive of the fact upon which the issue of liability depended and the defendant had failed to object to the answer to the interrogatory in the motion for new trial, the reviewing court must consider the special findings to have been fully sustained by the evidence, and in support we cited Voigt v. Anglo-American Provision Co., 202 Ill. 462, 66 N.E. 1054; Weinrob v. Heintz, 346 Ill.App. 30, 104 N.E.2d 534; Brant v. Chicago & Alton R. Co., 294 Ill. 606, 128 N.E. 732; and Brimie v. Belden Mfg. Co., 287 Ill. 11, 122 N.E. 75. In Rubottom v. Crane Co., 302 Ill.App. 58, 23 N.E.2d 354, 358, the court said: 'Under the authorities there are several ways by which a party may escape from being conclusively bound by the special finding of a jury: (1) by specific objection to the special finding on the motion for a new trial, or (2) by finding a specific motion to set aside the special finding when the motion for a new trial is made.' The error here assigned, that the jury's negative answers to two special interrogatories were against the manifest weight of the evidence, was not in any way preserved in plaintiff's motion for new trial, and the assignment of error falls within the rule announced in the above cases. In both Bowman v. Illinois Cent. R. Co., 9 Ill.App.2d 182, 132 N.E.2d 558, and Midden v. Allstate Ins. Co., 7 Ill.App.2d 499, 129 N.E.2d 779, relied on by plaintiff, the motion for new trial did specifically set up that the answer to the interrogatory therein was against the weight of the evidence. No objection in the instant case was made to the answers to the special findings on the ground that they were against the weight of the evidence, nor was any motion filed to set them aside. Under the law the question as to whether or not the verdict of the jury was against the manifest weight of the evidence is not before us.

The plaintiff also urges that the trial court erred in giving interrogatory No. 3, which was answered 'No.' However, no objection was made by the plaintiff before the trial court when the interrogatory was submitted, nor was any objection made to the submission to the jury of the other two interrogatories. In Weinrob v. Heintz, 346 Ill.App. 30, 104 N.E.2d 534, 539, the plaintiff objected to the submission of, and the answers to, special interrogatories given by the court to the jury. The court says:

'Sec. 65 of the Civil Practice Act (Par. 189, Sec. 65, Ill.Rev.Stat.1951) [Jones Ill.Stats.Ann. 104.065] provides that special interrogatories shall be submitted to the adverse party before the commencement of the argument to the jury, and that submitting or refusing to submit a question of fact to the jury 'may be excepted to and be reviewed on appeal, as a...