Bonnier v. Chicago, B. & Q. R. Co.

• Decision Date: 30 June 1953
• Docket Number: Gen. No. 45889
• Citation: 113 N.E.2d 615,351 Ill.App. 34
• Court: United States Appellate Court of Illinois
• Parties: BONNIER v. CHICAGO, B. & Q. R. CO.

Page 615

113 N.E.2d 615

351 Ill.App. 34

BONNIER v. CHICAGO, B. & Q. R. CO.

Gen. No. 45889.

Appellate Court of Illinois, First District, First Division.

June 30, 1953.

J. L. Rice, C. W. Krohl, Robert F. Casey, Chas. F. White, Theodore Schuster, Andrew C. Scott, Chicago, for appellant.

James A. Dooley, Chicago, for appellee.

BURKE, Justice.

Edward Bonnier filed a complaint in the Superior Court of Cook County against the Chicago, Burlington & Quincy Railroad Company to recover damages for injuries suffered on July 30, 1948, when he was thrown from the top of a gondola carload of scrap metal during a switching operation in its Morton Park, Illinois, switch and train yard. The scrap metal shipment on which he was standing was moving in interstate commerce from a Chicago shipper to an Indiana receiver. Issue was joined. The first trial resulted in a verdict for plaintiff for $188,333.33. The second trial resulted in a verdict for $70,000. Defendant's motions for a directed verdict and for judgment notwithstanding the verdict were overruled and judgment was entered on the verdict. Defendant appeals. In a cross-appeal plaintiff asks a new trial on the question of damages, based on a claimed prejudicial error in refusing to receive the testimony of an actuary as to the present value of plaintiff's loss of future earnings computed with reference to his life expectancy.

Plaintiff was 48 years old at the time of the occurrence. He had been continuously employed by defendant as a railroad blacksmith for 19 years. He was the only blacksmith in the Morton Park yard and as such did all the blacksmithing there. He worked at a blacksmith forge located in a blacksmith shop near tracks 4 and 5 in what is known as the repair or Y yard. His routine duties involved the forging of parts for freight cars such as pin lifters, stirrups, grabirons, brake levers, etc., in the blacksmith shop. When anything beyond routine work was involved, he would be directed or instructed to do it by Mr. Hosticka or Mr. Oestmann. The repairmen usually removed the defective parts from the freight cars. Plaintiff did the necessary forging and thereafter he either set the forged parts outside his shop for the repairmen, or he took them directly to the repairmen who installed the part on the freight cars. Sometimes he went into the repair yard with pencil, ruler and paper and drew patterns of defective parts, particularly where it was difficult to remove the parts from the car. Occasionally, he was sent out to what is known as the Z yard (tracks 8 to 26 inclusive) and there drew patterns of defective parts, usually on track 15, the bad order track, where cars with defective safety appliances were set, pending their removal to the repair yard. When directed to do so, plaintiff also went into the Z yard to assist in making repairs to 'hot' cars. A 'hot' car is one loaded with perishable freight, emergency war material and the like.

The blacksmith shop and forge were located within the repair yard and all the tracks within that yard were blue flagged and could not and were not switched while the blue flags were posted. On Sundays plaintiff might also work as a repairman, oiler, car inspector or in whatever other capacity he might be most useful. On Friday, July 30, 1948, plaintiff had completed all pending work at his forge in the blacksmith shop when the noon hour arrived. He ate lunch in the blacksmith shop, alone, and immediately thereafter left that shop, between tracks 4 and 5, and went to a gondola car of commercial scrap metal located about 200 feet to the north on track 15 in the Z yard. The gondola carload of commercial scrap metal was located at the east end of track 15. There were also a number of box cars standing on track 15, immediately west of the carload of scrap metal. All of the cars on that track were set there pending removal to the repair yard because of safety applicance defects. When plaintiff left his blacksmith shop and went to the gondola car on track 15 there were then approximately 40 cars awaiting repairs in the repair yard. There were also a number of other cars with safety appliance defects on track 15, awaiting removal to the repair yard. Plaintiff made no attempt to do any work on the 40 cars awaiting repairs in the repair yard, nor did he pay any attention to the other defective cars on track 15, the bad order track. Although about 40 men were employed in the repair yard, plaintiff did not see any of them while walking from his shop to the gondola carload of scrap metal. He was not directed or requested to leave the blacksmith shop or the repair yard and go to the gondola car on track 15, nor did he advise anyone that he was leaving the blacksmith shop in the repair yard and going to the gondola car on track 15. When plaintiff arrived at the gondola car he examined the car on the side so as to ascertain the nature of the safety appliance defect which caused it to be placed there. After learning from the card that the car had a defective stirrup, plaintiff went to the defective appliance and drew a pattern of it with pencil, ruler and paper. After having drawn this pattern he noted from the material hanging over the side of the car that the car contained commercial scrap metal, one piece being 16"' x 12"' x 1/4"' thick. He decided to climb on top of the car to get that piece of metal. Before he climbed on top of the gondola carload he observed that there were a number of freight cars immediately west and that these cars (boxcars) were 6 or 7 feet higher than the gondola car. He also looked to the east and to the west to see if locomotives were switching from either end of track 15, but he saw no locomotives. His vision to the west was obstructed by the freight cars standing west of the gondola car, as well as by a curve in the track.

There was a card on the side of the gondola car that showed the contents of the car were being shipped by the Doppelts Metal Company of Chicago to the Inland Steel Company of Indiana Harbor, Indiana. Plaintiff said he paid no attention to the card or to whether the shipment belonged to defendant or someone else. After plaintiff climbed on top of the gondola car, he was seen to walk the full length of the carload, apparently looking for something, and was also observed in about the middle of the car with something in his hand about 1 1/2 feet long. Plaintiff testified that the piece of scrap metal hereinbefore mentioned was located in the southerly half of the shipment, slightly west of the center of the carload. He said he intended to use the metal plate in connection with the building of a dolly or cart. He was not making a dolly on that day. He had no instructions to make a dolly or a cart, had not built one for at least 10 months previously and the defendant needed no additional dolly or cart. While plaintiff was standing near the end of the gondola car facing in an easterly direction, some freight cars were pushed in from the westerly end of track 15, and when they made contact with the string of cars already standing on that track the impact was such as to throw plaintiff to the ground, where his right arm was severed below the elbow. The force of the impact caused the gondola car to move 5 or 6 feet. The freight cars that were shunted in on track 15 from the west were moving at the usual and customary speed of 3 to 4 miles an hour. The locomotive that was pushing the cars in from the westerly end of track 15 was more than 1,000 feet west of the gondola car on which plaintiff was standing. Defendant's rules prohibit workmen from standing on top of freight cars, near the end thereof. Defendant's rules, with which plaintiff was familiar, provided that employees could not depend for their protection upon the ringing of bells or the blowing of whistles by switch engines in the Morton Park switch yards. The 4 tracks in the repair yard (4, 5, 6 and 7) were protected by blue flags and no switching could be done in that yard before first having the flags removed by one of the workmen. Whenever the workmen went out into the Z yard to make repairs or otherwise take a position of danger, it was their duty to notify the switch crews of that fact.

Plaintiff admits that all tracks in the Z yard, including track 15, were known as 'live' tracks, and that he could expect cars to be switched in from either end of these tracks at all times. His witnesses gave similar testimony. Defendant's rules, with which plaintiff was familiar, advised plaintiff that he could expect cars to be switched from both directions at all times on these tracks without notice by bell, whistle or otherwise. He testified that he heard no bell or whistle immediately prior to the impact which threw him from the gondola car. Plaintiff claimed it was a custom not to switch cars in on any track when there was a dead locomotive located between 20 to 40 feet beyond standing freight cars. At the trial he said there was a dead locomotive standing 20 to 40 feet east of the gondola carload of scrap metal. He did not see it until after he got up on top of the gondola car. He did not claim at the trial that he had relied for his safety on the observance of the custom at the time he got up on top of the gondola carload of scrap metal. Plaintiff does not claim that defendant's switch crews knew that a dead locomotive was standing 20 to 40 feet beyond the gondola car. The custom was for the protection of defendant's locomotives. No one testified that it was for the protection of employees.

In Tiller v. Atlantic Coast Line R. Co., 318 U.S. 54, 63 S.Ct. 444, 87 L.Ed. 610, the court said that the Act of 1908 and the amendment of 1939 of the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., leave for practical purposes only the question of whether the carrier was negligent and whether that negligence was the proximate cause of the injury, and that the employer's liability is to be determined under the general rule which...