Devine v. Chicago & C.R.R. Co.

• Decision Date: 15 October 1913
• Court: Illinois Supreme Court
• Parties: DEVINE v. CHICAGO & C. R. R. CO.

259 Ill. 449

102 N.E. 803

DEVINE

v.CHICAGO & C. R. R. CO.

Supreme Court of Illinois.

June 18, 1913.

Rehearing Denied Oct. 15, 1913.

Error to Appellate Court, First District, on Appeal from Superior Court, Cook County; William H. McSurely, Judge.

Action by John F. Devine against the Chicago & Calumet River Railroad Company. Judgment for the plaintiff was affirmed in the Appellate Court (174 Ill. App. 324) and defendant brings error. Reversed and remanded.Frank M. Cox and Sheriff, Dent, Dobyns & Freeman, all of Chicago (Andrew R. Sheriff and R. J. Fellingham, both of Chicago, of counsel), for plaintiff in error.

James C. McShane, of Chicago, for defendant in error.

VICKERS, J.

The defendant in error, as administrator of the estate of James H. Patton, deceased, obtained a judgment for $10,000 damages against the Chicago & Calumet River Railroad Company in an action on the case for negligently causing the death of defendant in error's intestate. The case was submitted to the jury upon the fifth and sixth counts of the declaration, one of which charged the violation of the federal Railroad Safety Appliance Act (Act March 2, 1893, c. 196, 27 Stat. 531 [U. S. Comp. St. 1901, p. 3174]) in using upon its railroad a locomotive engine that was not equipped with an automatic coupler which could be uncoupled from the side of the engine and without the necessity of going between the end of the engine and the car, from which it was to be uncoupled. The other count charged a like violation of the Safety Appliance Act of the State (Hurd's Rev. St. 1911, c. 114, §§ 219-222). Both counts alleged that the deceased was required to, and did, ride between the engine and the car for the purpose of uncoupling them, and by reason of the condition of the coupling appliance was thrown from the engine and received the injuries from which he afterwards died. The only negligence charged in either of said counts of the declaration is a failure to comply with the federal and state statutes in regard to the automatic coupler required.

The facts are, in substance, as follows: The Western Steel Car & Foundry Company, at Hegewisch, Ill., was an incorporated company engaged in the manufacture of steel freight cars and in the repair of the same. It used in connection with its plant about 100 acres of land, which was inclosed by a high board fence, except on the west side, which was bounded by the Calumet river. Inside of its inclosure the foundry company had laid numerous railroad tracks connecting its various buildings with the tracks of railroad companies outside of its grounds. The foundry company also owned two locomotives, five flat cars, one gondola car, and one box car, which were intended for use in handling the foundry company products in and out of its factory and from one place to another within its inclosed grounds. All of its railroad tracks except that portion of the tracks that was inside of its buildings, and all of its rolling stock and other equipment for the operation of its cars, were at the time of the accident in question in the possession of and being operated by the Chicago and Calumet River Railroad Company, plaintiff in error, under a lease from the foundry company. Plaintiff in error performed two distinct classes of service. It received car loads of material, such as iron, coke, lumber, and the like, intended for the foundry company, at the gates or openings in the fence where they were delivered by railroad companies, and moved such cars over its tracks to the desired point inside the foundry company's grounds. It also hauled finished cars out to the gate, where they were received by the railroad companies and carried to their destination. For its services in handling car loads of material plaintiff in error received its compensation from the railroad company delivering said cars to plaintiff in error by some sort of a division of freight charges. Plaintiff in error also did a class of service that was paid for by the foundry company which was exclusively for its benefit. This work consisted in moving cars loaded with waste and refuse from the buildings where the same accumulated to a dumping point, which was reached by one of the tracks inside of the inclosure known as the ‘kindling track.’ At the time of the accident in which Patton was injured plaintiff in error had its locomotive coupled onto three flat cars which were loaded with waste material that had accumulated in the factory from the making of new and the repair of old cars. The loads were three or four feet high, and the scrap wood and waste were held in place with sticks set up at the sides of the cars. The object was to run these three cars of waste down on the kindling track, to be there unloaded as waste. In order to accomplish this, a switching movement known as ‘kicking’ was attempted. This movement is accomplished by pushing the cars to be switched in front of the locomotive until they acquire momentum sufficient to carry them to the desired point. They are then uncoupled from the locomotive and allowed to run under the impulse of the acquired motion while the locomotive slackens its speed and is brought to rest. In order to make this switching movement, it was the duty of the deceased to ride on the front running board of the locomotive, so as to be in a position to pull the pin and detach the cars when the required speed had been attained. The deceased was upon the running board of the locomotive, as described, when the locomotive started to kick the cars down on the kindling track. The locomotive had moved these cars a distance of approximately 1,500 feet before they were uncoupled. The uncoupling is done and the locomotive slackened at a signal, which is usually given by the conductor or the head switchman. There was a frog connecting the kindling track with another track at or near the place where the locomotive was uncoupled from the cars on the day of the accident. The evidence is uncontradicted that the steam brake on the locomotive was out of repair, and had been for two or three weeks, so that it could not be used. The only way the locomotive could be stopped was by reversing the lever, which would cause a rocking or swaying motion of the locomotive. At the time of the accident, and at the proper time, the deceased drew the pin and the cars were kicked down on the kindling track. After they were separated from the locomotive the engineer reversed his lever and the locomotive was derailed. It ran 65 feet on the ties, and then one set of drivers got down upon the ground and it ran some distance, sinking the wheels into the ground, and was finally brought to rest by striking a water plug some 2 or 3 feet from the rail. The deceased was thrown from the running board, and his feet were caught under the locomotive, and he received injuries from which he died five or six months later. The evidence shows that the tracks at the place where the derailment occurred were not well ballasted. The evidence also tends to show that the track was poorly constructed. The deceased had worked for a considerable length of time around these yards, and for several months had been a switchman for plaintiff in error.

The Appellant Court for the First District affirmed the judgment below, and the record has been brought to this court by a certiorari.

At the close of the evidence for defendant in error, and again at the close of all the evidence, plaintiff in error asked the court to instruct the jury to find it not guilty and submitted instructions for that purpose, which were refused. Plaintiff in error contends that there was error committed in refusing its request for a directed verdict (1) because it was not engaged in either interstate or intrastate commerce at the time of the accident, and consequently neither the federal nor state statute declared upon has any application to its locomotive at the time of the injury; (2) that if it be conceded that the locomotive was being operated at the time of the accident, contrary to the provisions of both the federal and state acts, it is earnestly contended that the accident was not the proximate result of the violation of the statutes complained of. If either of these contentions is sustained, it will necessarily result in a reversal of the judgment.

[1] Upon the first proposition, plaintiff in error argues that neither of the statutes has any application to such a movement of cars as the one here in question. It is not necessary, to create a liability under the federal statute, that the car or locomotive in question should be actually engaged in interstate commerce at the precise time when an injury occurs. The Supreme Court of the United States, in Southern Railway Co. v. United States, 222 U. S. 20, 32 Sup. Ct. 2, 56 L. Ed. 72, has given a construction to the federal act and its amendment, and it is there held that the test is the use of the vehicle on a railroad which is a highway of interstate commerce, and not the particular use that is being...