Devine v. Chicago, R.I.&P. Ry. Co.
| Decision Date | 03 February 1915 |
| Docket Number | No. 9575.,9575. |
| Citation | 107 N.E. 595,266 Ill. 248 |
| Parties | DEVINE v. CHICAGO, R. I. & P. RY. CO. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Error to Branch D Appellate Court, First District, on Appeal from Circuit Court, Cook County; Mazzini Slusser, Judge.
Action by John F. Devine, administrator, against the Chicago, Rock Island & Pacific Railway Company. A judgment for plaintiff was affirmed by the Appellate Court (185 Ill. App. 488), and defendant brings certiorari. Affirmed.M. L. Bell and A. B. Enoch, both of Chicago, for plaintiff in error.
James C. McShane, of Chicago, for defendant in error.
John F. Devine, as administrator of the estate of William J. Mason, deceased, recovered a judgment for $15,000 against the plaintiff in error, the Chicago, Rock Island & Pacific Railway Company, for damages on account of the death of his intestate, alleged to have been caused by the negligence of the plaintiff in error. The Appellate Court having affirmed the judgment, the record has been brought before us by a writ of certiorari.
The deceased was a switchman in the employ of the plaintiff in error in the city of Chicago. He was head brakeman of a crew consisting of an engineer, fireman, conductor, rear brakeman, and head brakeman. This crew did miscellaneous switching in various parts of the yards, made deliveries of cars to different industries and to the yards of other railroad companies, and took cars from these different places to the yards of the plaintiff in error. On June 20, 1910, this crew, with an engine, went north from the plaintiff in error's yards at Blue Island to 103d street, a distance of two miles, where the yards of the Panhandle railroad were located, just west of the plaintiff in error's railroad. The plaintiff in error had three tracks extending north and south at this place, numbered, from west to east, 5, 4, and 3. Beginning at 103d street and extending north the Panhandle had three tracks, known as the east track, the middle track, and the lead track. Connecting the Panhandle tracks with the main line of the plaintiff in error was a track leading south across 103d street and connecting with track 5 of the plaintiff in error just south of 104th street. Joining this track was another switch from track 5 to track 4, and still farther south was a connection between tracks 3 and 4 of the plaintiff in error. On the morning of the accident there were 45 cars in the Panhandle yards to go south to Blue Island-23 just north of 103d street on the middle track of the Panhandle road, and 22 just west of the 23, on the lead track. The engine backed in on the middle track, coupled to the 23 cars, and the air on them was connected with the engine. These cars were pulled south, backed in on the west track of the Panhandle yards, and coupled to the 22 cars upon that track, but the air on these 22 cars was not connected with the engine. The train then started south out of the Panhandle yards and crossed to the plaintiff in error's track 5 and from there to track 4. The deceased was standing on the top of the train, about halfway back, giving signals to the conductor, who was south of him, and to the engineer. Just as the last car cleared the switch between the track of the Panhandle and track 4 of the plaintiff in error the train came to a sudden stop, and the deceased was thrown from the top of the car on which he was standing and killed.
The suit was brought under the federal Employers' Liability Act. The declaration alleged that on the day of the accident the plaintiff in error owned and operated a railroad from Chicago into other states and was engaged as a common carrier in commerce between the states, and that the deceased was employed as a switchman with a certain engine and cars, and at the time of the accident was employed in commerce between the states. The negligence charged was that the engineer negligently stopped his train with great and unusual suddenness, by reason of which the deceased was thrown from the top of the car to the ground and killed.
The plaintiff in error contends that the court erred in refusing to direct a verdict for it because there was no competent evidence that the particular service in which the deceased was engaged at the time he was killed was interstate commerce. The case was tried before the decision of the case of Illinois Central Railroad Co. v. Behrens, 233 U. S. 473, 34 Sup. Ct. 646, 58 L. Ed. 1051, Ann. Cas. 1914C, 163, and the theory of the defendant in error was that the deceased, being regularly employed indiscriminately in interstate and intrastate commerce, and his work and safety having a real and substantial relation to and connection with interstate commerce, was therefore employed in interstate commerce, within the meaning of the federal Employers' Liability Act. Probably on account of the theory on which the case was tried, the evidence that any car among those being moved at the time the deceased was killed was then engaged in interstate commerce is slight. The efforts of the counsel for the defendant in error in accordance with his view of the law were directed to showing that the railroad of the plaintiff in error handled, indiscriminately, interstate and intrastate traffic at the same time and in the same trains, and there was little direct or positive evidence of the make-up of the particular train. The conductor of the deceased's crew did, however, testify that this train was made up of foreign cars and cars of the plaintiff in error-of cars from out of the state and cars from in the state. This was not enough, for this was not evidence that the cars from out of the state or the cars from in the state were then engaged on an interstate trip. In answer, however, to the question, ‘Some cars goingout of the state and some going to points in the state?’ the witness answered, ‘Yes.’ This is evidence that some of the cars in the train were engaged in an interstate trip-at least that one of them was. It is slight, but it is not contradicted. Counsel for the plaintiff in error say that counsel for the defendant in error could have shown, by records, the origin and destination of every loaded or empty car in...
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