Dowler v. New York, C. & St. L. R. Co.

• Decision Date: 21 January 1955
• Docket Number: No. 33307,33307
• Citation: 5 Ill.2d 125,125 N.E.2d 41
• Parties: Franklin L. DOWLER, Appellant, v. THE NEW YORK, CHICAGO AND ST. LOUIS RAILROAD COMPANY, Appellee.
• Court: Illinois Supreme Court

Page 41

125 N.E.2d 41

5 Ill.2d 125

Franklin L. DOWLER, Appellant, v. THE NEW YORK, CHICAGO AND ST. LOUIS RAILROAD COMPANY, Appellee.

No. 33307.

Supreme Court of Illinois.

Jan. 21, 1955.

Rehearing Denied March 22, 1955.

Lawrence B. Moore, George W. Moorhead, Paris, for appellant.

Harvey Gross, Paris, Pope & Driemeyer, East St. Louis, for appellee.

DAILY, Justice.

The plaintiff, Franklin L. Dowler, filed suit in the circuit court of Edgar County under the provisions of the Federal Employers' Liability Act to recover damages for personal injuries allegedly sustained by him in the course of his employment by defendant, The New York, Chicago and St. Louis Railroad Company. A jury trial resulted in a verdict for plaintiff in the sum of $8,000. The trial court, after denying motions for judgment notwithstanding the verdict, and for a new trial, entered judgment for plaintiff on the verdict. Upon appeal, the Appellate Court for the Third District reversed this judgment for the reason that, in its opinion, the plaintiff had failed to prove that his injuries were proximately caused by the negligence of the defendant, and, thus, that the verdict was not supported by the evidence. Dowler v. New York, Chicago & St. Louis Railroad Co., 2 Ill.App.2d 1, 118 N.E.2d 608. We have granted leave to appeal to review the judgment of the Appellate Court.

Section 1 of the Federal Employers' Liability Act provides that every common carrier by railroad while engaged in interstate commerce shall be liable in damages for injury to any employee resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier. Other sections of the act abolish the defenses embodied in the rules of contributory negligence, fellow servant, and assumption of the risk. 45 U.S.C. §§ 51, 53 and 54, 45 U.S.C.A. §§ 51, 53, 54; McGivern v. Northern Pacific Railway Co., 8 Cir., 132 F.2d 213. To sustain an action under the Federal statute, it is necessary that the employee be acting in the line and scope of his employment and the employer be engaged in interstate commerce. Halderman v. Pennsylvania Railroad Co., 2 Cir., 53 F.2d 365; Southern Railway Co. v. Smith, 223 Ala. 583, 137 So. 398; Bourne v. Southern Railway Co., 225 N.C. 43, 33 S.E.2d 239. These facts were, in this case, undisputed. In addition, a plaintiff must prove not only that the railroad was negligent, but also that such negligence contributed in whole or in part to the employee's injury. Atchison, Topeka & Santa Fe Railway Co. v. Toops, 281 U.S. 351, 50 S.Ct. 281, 74 L.Ed. 896; Northwestern Pacific Railway Co. v. Bobo, 290 U.S. 499, 54 S.Ct. 263, 78 L.Ed. 462. To warrant the submission of such a case to a jury, probative facts must be presented from which negligence and causal relation can reasonably be inferred. Tennant v. Peoria & Pekin Union Railway Co., 321 U.S. 29, 64 S.Ct. 409, 88 L.Ed. 520; Sivert v. Pennsylvania Railroad Co., 7 Cir., 197 F.2d 371. Thus, the sole question here involved, is whether evidence was presented to meet these established requirements.

As stated by the Appellate Court, there appears to be no serious dispute as to the facts constituting the occurrence in question. Plaintiff, who was employed by the defendant as a section hand on an extragang repairing railroad tracks, suffered a third degree burn on the back of his right leg. The injury occurred on January 31, 1948, at which time plaintiff was 21 years of age. Previous to his employment by the defendant, he had worked on steel construction, as a carpenter, as a section hand on another railroad, and had served twenty-two months in the army. For two or three days previous to his injury, plaintiff had been carrying a bucket containing hot creosote, which was applied with a brush to railroad ties by a fellow employee. In this operation the creosote was splashed on the plaintiff's overalls. Plaintiff had no previous experience in handling creosote, nor had he been given any instructions as to its handling, and he knew nothing concerning its properties. On the day of the injury, the temperature was three degrees below zero and plaintiff and other employees were engaged in spreading materials along the right of way in preparation for the following week's work. Plaintiff was then wearing the same overalls upon which creosote had been spilled the day or two previous, and which had not been washed. Under the overalls, the plaintiff was wearing riding pants and still another pair of pants. He also wore a pair of hightop boots and overshoes. There was no shelter provided by the defendant on the right of way where plaintiff was working. In order to warm himself, plaintiff gathered weeds and built a fire, which he ignited with a cigarette lighter. The plaintiff, in warming himself, stood so close to the fire that his overalls became ignited. The right leg of plaintiff's overalls was burned and the riding pants worn underneath were scorched. The back of plaintiff's leg was severely burned and it was the opinion of a doctor that the burn was caused by heated creosote fumes from the burning overalls penetrating through the cloth of the garments worn underneath and onto the skin of the plaintiff.

The record further indicates that evidence was presented showing creosote to be a corrosive poison when in contact with the human body and that other employers, including railroads, usually and customarily instructed and warned their employees about creosote, the handling of creosote and creosoted materials, and the danger of getting near open fires with creosote on their clothing.

The right to trial by jury is a part and parcel of the remedy afforded railroad workers under the Federal Employers' Liability Act. Williams v. New York Central Railroad Co., 402 Ill. 494, 84 N.E.2d 399. Ordinarily, the questions of whether the employer was negligent and whether such negligence was the proximate cause of injury are for the jury to decide. However, a jury may not be permitted to speculate as to these facts. Atchison, Topeka & Santa Fe Railway Co. v. Toops, 281 U.S. 351, 50 S.Ct. 281, 74 L.Ed. 896. When the evidence is such that without weighing the credibility of he witnesses, and after considering it in its aspects most favorable to the plaintiff, there can be but one reasonable conclusion as to the verdict, it is held that courts must determine the proceedings by a directed verdict, or otherwise, in accordance with the applicable practice without submission to the jury, or by judgment notwithstanding the verdict. Brady v. Southern Railway Co., 320 U.S. 476, 64 S.Ct. 232, 88 L.Ed. 239; Bonnier v. Chicago, Burlington and Quincy Railroad Co., 2 Ill.2d 606, 119 N.E.2d 254; Huff v. Illinois Central Railroad Co., 362 Ill. 95, 199 N.E. 116.

On the other hand, as was stated in Tennant v. Peoria & Pekin Union Railway Co., 321 U.S. 29, 64 S.Ct. 409, 412, 88 L.Ed. 520: 'It is not the function of a court to search the record for conflicting circumstantial evidence in order to take the case away from the jury on a theory that the proof gives equal support to inconsistent and uncertain inferences. The focal point of judicial review is the reasonableness of the particular inference or conclusion drawn by the jury. It is the jury, not the court, which is the fact-finding doby. It weighs the contradictory evidence and inferences, judges the credibility of witnesses, receives expert instructions, and draws the ultimate conclusion as to the facts. The very essence of its function is to select from among conflicting inferences and conclusions that which it considers most reasonable. * * * That conclusion, whether it relates to negligence, causation or any other factual matter, cannot be ignored. Courts are not free to reweigh the evidence and set aside the jury verdict merely because the jury could have drawn different inferences or conclusions or because judges feel that other results are more reasonable.' This court has adhered to the same principle in the recent cases of Pitrowski v. New York, Chicago and St. Louis Railroad Co., 4 Ill.2d 125, 122 N.E.2d 262, and Bonnier v. Chicago, Burlington & Quincy Railroad Co., 2 Ill.2d 606, 119 N.E.2d 254.

In the present case it is charged that the defendant was negligent in failing to warn plaintiff of the dangerous properties of creosote and in permitting plaintiff to work outside in sub-zero temperature without providing shelter or warning of the dangers of open fires while wearing creosote saturated clothing. Plaintiff further alleged that his injuries were the direct and proximate result of such negligence.

It has been frequently held, by this and other courts, that the provisions of the Federal Employers' Liability Act are founded upon common-law concepts of negligence and injury, subject to such qualifications as Congress has seen fit to impose. Urie v. Thompson, 337 U.S. 163, 69 S.Ct. 1018, 93 L.Ed. 1282; Bailey v. Central Vermont Railway, Inc., 319 U.S. 350, 63 S.Ct. 1062, 87 L.Ed. 1444. Thus, to resolve these questions we must look to the common law. The rule is concisely stated in 56 C.J.S., Master and Servant, § 284, as follows: 'It is the duty of the master to warn and instruct his servant as to defects and dangers of which he knows, or ought, in the exercise of reasonable care and diligence, to know, and of which the servant has no knowledge, actual or constructive; prima facie this duty requires the master to warn and instruct the servant with reference to all abnormal or unusual, peculiar or extaordinary risks or hazards of the employment, and, where the business is complex or dangerous in its nature, the master is bound to point out to servants the particular defects and dangers incident thereto. Whether warning or instruction is necessary may depend on the age, intelligence, and experience of the employee, as well as on the...