O'DAY v. Chicago River & Indiana Railroad Company
| Decision Date | 13 November 1954 |
| Docket Number | No. 11134.,11134. |
| Citation | 216 F.2d 79 |
| Parties | Francis J. O'DAY, Plaintiff-Appellant, v. CHICAGO RIVER & INDIANA RAILROAD COMPANY, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Edward B. Henslee, Robert J. Kenney, John J. Naughton, Chicago, Ill., for appellant.
Marvin A. Jersild, Wayne M. Hoffman, Chicago, Ill., for appellee.
Before MAJOR, SWAIM and SCHNACKENBERG, Circuit Judges.
This action was brought under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., to recover damages for personal injuries occasioned by the alleged negligence of defendant in failing to provide plaintiff with a reasonably safe place to work. After plaintiff rested his case, defendant made a motion for a directed verdict, which was renewed at the close of all the evidence. The court reserved its ruling on these motions. After the jury returned a verdict in plaintiff's favor, defendant made a motion for judgment notwithstanding the verdict, which the court sustained. From this adverse judgment plaintiff appeals.
Viewing the evidence in the light most favorable to the plaintiff, as we must, the most relevant facts are these. Plaintiff was 45 years of age at the time of the accident and had been in defendant's employ as a switchman and yard brakeman for approximately nine years. At about 8:30 p. m. on November 2, 1951, he was working with a three-man crew engaged in switching operations near the Magnus Metal Plant in Chicago. In this vicinity the spur track leading into that plant intersects the industry or lead track at a switch, commonly referred to in the record as the "No. 6 switch."
Photographs introduced into evidence show that the No. 6 switch is situated on the outside rail to the right of the lead track on two railroad ties which are about two feet longer than the other ties which support the rails. The railroad right-of-way is supported by a raised embankment covered with cinder ballast. To the right of the switch the embankment slopes downward eight or ten feet at a forty-five degree angle to a retaining wall where at that point there is a sheer drop of fifteen or twenty feet into an alley. The embankment for some time had been washed out for a distance of two feet underneath the switch ties, with the result that they protruded into the air with the ground receding below. The dirt and cinders underneath the switch ties had been loosened by the erosion. Consequently, in order to operate the hand switch it was necessary to stand on the sloping incline, face toward the lead track, crouch over and maintain a secure hold on the switch light on top of the switch.
When plaintiff's crew arrived at the plant, it was their duty to switch some cars from the lead track into the plant and to pull some cars out so they might be restored to road service. After about ten cars were recovered from this spur, plaintiff alighted from the switch engine and took up his position at this No. 6 switch, as he had been directed to do. Plaintiff had worked in this vicinity only several days, and had been warned earlier by the crew conductor of the dangerous condition existing around the switch.
During this time, some man living in one of the houses below the embankment shouted to plaintiff and to Snell, another crew member, to "quit making so much noise." Plaintiff replied in effect that they would be "switching" for only a short while and that there was nothing they could do about the noise.
Plaintiff had taken his position and was bending over the switch when he noticed a man approaching him from the left, along the sloping embankment parallel to the right-of-way. This individual, whose identity the record does not disclose, was five or six feet from the switch when first discovered, and as it was dark at the time, plaintiff was unable to recognize him. Plaintiff, supposing the stranger was going to talk to him, straightened up suddenly, releasing his grip on the switch, and in so doing lost his balance due to the slope; his foot started to slide in the loose cinders and as he felt himself falling backwards he grabbed wildly for the man to break his fall. With both of his arms he began to pull the stranger down the incline with him. However, the man managed to pull one of his own arms free and struck plaintiff several times before both of them slid down the slope and over the retaining wall. Plaintiff landed on his face and head in the alley below and suffered rather serious injuries. By the time he regained consciousness, the other man had disappeared. Switchman Snell found plaintiff lying in the alley and aided by several others carried him to the caboose, and from there he was taken to the Mercy Hospital for treatment.
In his complaint plaintiff alleged that the perilous physical condition existing around the No. 6 switch was well known to defendant; that defendant was careless and negligent in not filling the switch in to eliminate the precarious footing, and that defendant was negligent in allowing such a dangerous condition to continue to exist. He concluded that the hazardous condition was the proximate cause of his injuries. Plaintiff was the only witness who personally knew anything about the actual events contributing to the accident. Only two other witnesses testified in plaintiff's behalf. One was Michael V. Smalley, employed by defendant for twenty-six years, who testified as to the incline, that the switch ties jutted out and that the dirt wasn't even packed solid under the switch ties. He further testified that the area around the switch had been in the same condition for as long as he could remember. The other witness, Kenneth F. Stotz, was a physician who examined plaintiff some five months after the accident and who described in some detail the nature and extent of plaintiff's injuries.
At the trial defendant took sharp issue with plaintiff as to the actual cause of his injuries. It contended that he had become involved in a private argument with a trespasser who had knocked him off of the embankment, and that as a result there was no causal connection between the dangerous condition around the switch and the injuries. To substantiate its theory, defendant introduced the testimony of crewmen Busam and Snell and that of the company police officer Howard, who all testified to the alleged res gestae admissions made by plaintiff immediately following the accident in which he stated that he had been punched in the face and knocked off the embankment by an unknown assailant. This was coupled with the testimony of the treating physician, Dr. Claridge, who at the hospital took a personal history from plaintiff, in which he made substantially the same admission.
At the hearing on defendant's motion for a directed verdict at the close of all the evidence, the District Court said:
And at the subsequent hearing on defe...
To continue reading
Request your trial
-
Moist Cold Refrigerator Co. v. Lou Johnson Co.
...plaintiff, there is a total failure or lack of evidence to prove any necessary element of plaintiff\'s case." O\'Day v. Chicago River & Indiana Ry. Co., 7 Cir., 216 F.2d 79, 82. See also: Snead v. New York Central, supra; Burcham v. J. P. Stevens, 4 Cir., 209 F.2d 35; Standard Accident Ins.......
-
Swider v. Delaware & H.R. Corp.
...350 U.S. 523, 76 S.Ct. 608, 100 L.Ed. 668, Jones Act, 46 U.S.C.A. § 688. The rule was recently restated in O'Day v. Chicago River & Indiana Railroad Company, 7 Cir., 216 F.2d 79, 83: 'We reiterate what we said in Wetherbee v. Elgin, Joliet & Eastern Ry. Co., 7 Cir., 191 F.2d 302, "An appell......
-
Moore v. Missouri Pacific Railroad Company
...Roosth & Genecov Production Company, 5 Cir., 252 F.2d 650; Snead v. New York Cent. R. Co., 4 Cir., 216 F.2d 169; O'Day v. Chicago River & Indiana R. Co., 7 Cir., 216 F.2d 79; Banks v. Associated Indemnity Corp., 5 Cir., 161 F.2d 305; Barron & Holtzoff, "Federal Practice & Procedure", Sec. 1......
-
Marshall v. New York Central Railroad Company, 11226.
...which, if believed by the jury, would have authorized a finding in her favor on the issue of fraud. See O'Day v. Chicago River & Indiana Railroad Co., 7 Cir., 216 F.2d 79, and cases therein Plaintiff at the time of the trial was 54 years of age and had been married to the decedent since 195......