Chapman v. Alton R. Co.

• Decision Date: 11 February 1941
• Docket Number: No. 7409.,7409.
• Citation: 117 F.2d 669
• Parties: CHAPMAN v. ALTON R. CO.
• Court: U.S. Court of Appeals — Seventh Circuit

117 F.2d 669 (1941)

CHAPMAN v. ALTON R. CO.

No. 7409.

Circuit Court of Appeals, Seventh Circuit.

February 11, 1941.

Lloyd T. Bailey, of Chicago, Ill., for appellant.

Silas H. Strawn and Harold A. Smith, both of Chicago, Ill., for appellee.

Before EVANS, Circuit Judge, and LINDLEY and BRIGGLE, District Judges.

BRIGGLE, District Judge.

This appeal is from a judgment rendered on verdict of a jury, finding issues for defendant in a suit for damages growing out of personal injury. Plaintiff, a brakeman, in the employ of defendant was injured in the early morning of July 13th, 1936, by either falling or being thrown from the running board of a tank car.

Suit was brought on July 12, 1938, under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., charging that defendant was negligent:

(1) In having in its train a tank car with a defective air brake, resulting in the brakes grabbing on the tank car and causing the car to jump and sway, thereby causing plaintiff to be thrown from the running board;

(2) In having in its train a tank car with an unsafe running board in that said running board was covered with oil and grease by reason of which plaintiff slipped and was thrown from said car then in a moving train;

(3) In that defendant's road bed at the point of the accident was rough and uneven, causing the tank car in question to sway with such force that plaintiff's hold upon the railing was broken and he was thrown from the car to defendant's right of way.

Defendant denied all of the alleged acts of negligence and in addition urged that plaintiff contributed to his own injury by reason of his intoxication.

Plaintiff was fifty-eight years of age and had been in the employ of defendant intermittently, as a brakeman and conductor, for many years. On the night of July 12th, 1936, he arose at midnight and went to defendant's yard in Bloomington, Illinois, to report for duty upon a certain freight train, scheduled to leave the yards at 1:15 o'clock a. m. He searched about the yards for his caboose for some time without being able to find the same, but finally saw his train as it was moving out of the yards; and not having time to reach the caboose, boarded the tank car in question, expecting, as he says, to leave the tank car and catch the caboose when the train stopped at a station. He remained on the tank car until about 2 miles south of Odell, Illinois, when, he asserts, the brakes upon the tank car began to stick and he undertook to release them, whereupon the car gave a quick jerk and he was thrown from the running board to the right of way. It also appears from his testimony and from that of other witnesses called for plaintiff that the plaintiff may have slipped by reason of grease upon the running board. He was found by other trainmen about 5:30 in the morning, lying on the right of way. He was unconscious, his skull was fractured and concededly he was seriously injured. The trainmen took him to the Veterans' Hospital at Dwight, Illinois, where he remained for four days, and he was then taken to a hospital at Bloomington, Illinois, where he remained until August 4, 1936.

Plaintiff resumed work for defendant about December 15, 1936, and worked substantially continuously thereafter until the latter part of July, 1937, when he was discharged by defendant, due as defendant claims to his drinking of intoxicating liquor. Plaintiff denies the drinking.

Witnesses testified that at the time of finding plaintiff on the right of way, a bottle partially filled with whiskey was leaning against him, and other witnesses testified to the odor of alcohol upon his breath at the time of finding him, and at the time of being received at the hospital. Plaintiff denies that the whiskey bottle was his, but asserts that it was planted there and denies that he had been drinking intoxicating liquor on the night in question, except that he had a bottle of beer before leaving his home.

Errors relied upon for reversal are:

(1) Improper rulings upon evidence and improper comments by the trial court at the time of such rulings;

(2) Improper comments by defendant's counsel during the trial and in the arguments to the jury;

(3) Verdict against manifest weight of the evidence;

(4) Failure to allow plaintiff's motion for new trial.

Under the first assignment of error plaintiff urges principally that it was error for the Court to receive evidence of plaintiff's drinking subsequent to the time of the accident. Much evidence was received in relation to plaintiff's alleged drinking in the month of July, 1937, while plaintiff was in the employ of defendant. Although controverted, defendant's evidence indicates that plaintiff was intoxicated while on duty, a bottle of whiskey was taken from his possession (in evidence as Defendant's Exhibit 10), and he was subsequently discharged as a result of his alleged drinking. Repeated inquiry by the Court brought the response from plaintiff's counsel that plaintiff was contending at all times that he was completely and totally disabled from work and was claiming damages not only for pain and suffering but for loss of wages. If his loss of wages was due, as defendant asserts, to his having been discharged on account of drinking and not due to the accident it was proper for the jury to know this. The fact that he worked for defendant for a considerable period of time following the injury was pertinent; and if he was discharged as a result of drinking and not on account of his otherwise being physically disabled this was also relevant to the jury's inquiry. It must be remembered that plaintiff was contending throughout the trial that he never used intoxicating liquors and that the whiskey bottles alleged to have been found on or near his person were not his but that defendant's agents, as he says, "Framed up on me and got me discharged." In view of his claim for damages, it cannot be said that his drinking habits subsequent to the injury and during the period for which he was seeking compensation were wholly immaterial.

Plaintiff also urges that there was not sufficient identification of Exhibits 9 (the bottle said to have been found at plaintiff's side at time of...