Deman v. Illinois Cent. R. Co.

• Decision Date: 16 March 1938
• Docket Number: Gen. No. 39673.
• Citation: 294 Ill.App. 294,13 N.E.2d 840
• Parties: DEMAN v. ILLINOIS CENT. R. CO.
• Court: United States Appellate Court of Illinois

294 Ill.App. 294

13 N.E.2d 840

DEMAN

v.ILLINOIS CENT. R. CO.

Gen. No. 39673.

Appellate Court of Illinois, First District, Third Division.

March 16, 1938.

Appeal from Circuit Court, Cook County; D. J. Normoyle, Judge.

Action under the Federal Employers' Liability Act by Anna Deman, administratrix of the estate of Adolph Deman, deceased, against the Illinois Central Railroad Company, to recover for the death of deceased while working in defendant's roundhouse. Judgment for plaintiff for $9,000, and defendant appeals.

Reversed and remanded. John W. Freels, Herbert J. Deany, E. C. Craig, V. W. Foster, and C. A. Helsell, all of Chicago, for appellant.

Royal W. Irwin, of Chicago, for appellee.

HALL, Justice.

On January 8, 1937, plaintiff, as administratrix of the estate of Adolph Deman, deceased, obtained judgment against defendant for the sum of $9,000, upon the verdict of a jury, from which judgment this appeal is prosecuted. In the declaration filed on November 7, 1930, it is charged that on October 3, 1930, the day plaintiff's intestate met his death, defendant was a railroad corporation, employed in interstate commerce, and that the decedent, while in the employ of defendant and while engaged in work in connection with interstate commerce, through the negligence of defendant, was killed.

While a number of questions are presented to us for consideration, the principal and pertinent question is whether or not, on the day in question, decedent was engaged in interstate transportation, and whether the plaintiff has established such fact by the weight of the evidence. The record indicates that at the time decedent met his death on October 3, 1930, he was employed by defendant as a carpenter's helper, and that he had nothing to do with the movement of trains.

A carpenter named Brown, a witness for plaintiff, testified to the effect that on the day in question the witness was temporarily acting as carpenter foreman for defendant at Twenty-Seventh street and the Illinois Central tracks in Chicago; that the day before the accident the decedent helped the witness to assemble a smokejack in a stall of the north roundhouse, in which there were 18 or 19 stalls; that two of the stalls in the roundhouse were used in washing out and repairing Illinois Central engines; that there were two roundhouses adjacent to each other, and that road engines did not come into the roundhouse where the decedent was employed; that the suburban service on the road in question had been electrified, and that suburban engines did not come into this roundhouse, and that to the witness's knowledge, no passenger engines came into it; that the roundhouse is small, and the turntable is used for turning Michigan Central engines, such engines being switch engines, which come into a roundhouse after switching around the yard and down the tracks; that two of the 18 stalls were used as a paint shop; that on the day of the death of the decedent, “We were working on the smoke jack for stall 12. The old smoke jack broke down or rotted away and we were building a new one to put in the old stall. Mr. Deman worked on the smoke jack on October 2nd, the day before he was killed. It had been started about a month before.” This witness also testified to the effect that the other stalls were used by the different locomotives that were being repaired by the employees, and that he last saw Mr. Deman on the morning of the accident at about twenty minutes to eight, when the witness talked to him. He also stated that shortly thereafter he was informed that Mr. Deman had been killed; that the witness went out and found the body lying between the rails of the main lead track, which is about 25 or 30 feet south of a coal chute, and that he noticed that the dirt between the tracks was scraped up to the extent of about 10 or 15 feet; that each stall in the roundhouse has a separate track leading into it through a double door, through which the locomotives go in; that he heard an engine go by approximately three minutes before he found Mr. Deman, and that, while he did not recall hearing any bells ringing, he did notice the noise of the operation of the locomotive; that the engine in question was operated by a man named Sykes; that the engine was going south, and that Sykes was in the cab hanging out of the window, and that, after the witness saw the engine pass, he saw Mr. Deman's body; that the engine he saw was a Michigan Central engine, and that, when he saw it, it had completed a turn around the north end of a coal chute, and straightened out on a track, and that Deman was lying about 30 or 35 feet south of the coal chute.

Robert Sykes, the man mentioned by the former witness as having had charge of the engine, was produced by plaintiff, and he testified to the effect that at the time in question he was a hostler, and that “I took engines to the roundhouse, took them in and out of the roundhouse and on the cinder pit. I didn't do any of the work on the engines myself. I am not a licensed engineer, and do not operate trains or do switching, but I do operate engines in the yard.” He testified that “the engineer was in the engine at the time. I was going to back it down to the roundhouse and turn it around on the turntable so it could go out on another train. I don't know where the engine came from. I don't know the name of the engineer. The engine stopped and I got up to the engineer's seat. The engine was headed north and I drove it south. The bell was turned off when I got on the engine, but the steam was up.” He further testified to the effect that as he went around a curve the top of a tank and coal pile thereon were higher than the witness was from the engineer's seat, and that he could not see over this tank and ahead on the track; that he could not see the rails on which he was driving from where he sat, until he got around the curve, and that he went around the curve at the rate of 5 miles an hour; that he did not see Deman; that he put the engine on a turntable and came back in about five minutes, and that a man named Wagner called his attention to the fact that Mr. Deman was lying on the track, dead. This witness stated that he could not recall whether the bell on the locomotive was ringing at the time, but that, if it was, he could not hear it because the machines at the sand pit and coal chute both made a loud noise. The engine in question was a switch engine.

An employee named Wagner testified to the effect that he was a machinest, employed by the defendant at the roundhouse in question; that he saw Deman on the morning in question as Deman was walking down the tracks, where he was found; that Deman had no tools, and that, when the witness saw him, he was walking between the rails, and that he was then just north of the coal chute, a distance of 15 or 20 feet, and 50 or 60 feet south of the carpenter shop; that at the time he saw Deman he did not see any locomotive on the track mentioned, nor did he hear any bells ringing; that he heard a lot of other noises, because it was a noisy place on account of the shaking of grates to knock out fires, the movement of rods and machinery which operates the coal chute and the buckets in the coal chute.

George F. Hankey testified to the effect that he had been employed by the defendant for 14 years as a building foreman, with headquarters at Twenty-Sixth street, and that...