Finley v. New York Cent. R. Co.

• Citation: 19 Ill.2d 428,167 N.E.2d 212
• Decision Date: 18 May 1960
• Docket Number: No. 35563,35563
• Parties: John FINLEY, Appellant, v. NEW YORK CENTRAL RAILROAD COMPANY, Appellee.
• Court: Supreme Court of Illinois

Page 212

167 N.E.2d 212

19 Ill.2d 428

John FINLEY, Appellant, v. NEW YORK CENTRAL RAILROAD COMPANY, Appellee.

No. 35563.

Supreme Court of Illinois.

May 18, 1960.

Kassly, Carr & Bone, East St. Louis, for appellant.

Pope & Driemeyer, East St. Louis, for appellee.

KLINGBIEL, Justice.

John Finley, employed as a car inspector by the New York Central Railroad, brought suit against his employer in the city court of East St. Louis for damages under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq. Trial before a jury resulted in a verdict of $26,750 for the plaintiff. On defendant's motion the trial judge entered judgment for defendant notwithstanding the verdict. Plaintiff appealed to the Appellate Court for the Fourth District where the judgment was affirmed. Finley v. New York Central Railroad Co., 22 Ill.App.2d 362, 161 N.E.2d 36. The cause is here for further review on leave to appeal granted by this court.

The injury for which the action was brought was sustained as plaintiff was attempting to pry shut the door of a boxcar. The door had been stuck, and the plaintiff was using a large crowbar to loosen it. As he pried with the bar, the door suddenly sprang closed and the plaintiff fell to the ground on his back. The principal issue is whether the evidence was sufficient to go to the jury on the question of negligence by the defendant. Plaintiff contends there was evidence that defendant negligently failed to furnish him with reasonably suitable tools, that defendant was negligent in ordering him to close damaged and defective doors, and that defendant negligently failed to inspect and repair the damaged and defective car doors.

The record shows that plaintiff was working on the night shift at defendant's East St. Louis yards, commonly known as the Lower Yards. These yards consisted of 35 tracks, three of which were called shop or repair tracks on which damaged or defective cars were repaired. The railroad also maintained another yard, called the Brooklyn Yards, to which cars were moved from the Lower Yards and made up into trains for movement to destinations. As part of his work as a car inspector at the Lower Yards plaintiff was required to examine cars for defects, to perform minor repairs, to close the doors on the cars, and in case defects are discovered, to make out a 'bad order report' so the car can be moved to the shop tracks for repairs.

On January 31, 1957, at about 1:30 A.M. the plaintiff came upon a loaded freight car with its steel double doors standing open on each side. He reported this to a railroad policeman, who requested the plaintiff to go back with him and help close the doors. The two men suceeded in closing the doors on the south side of the car, but one of the doors on the north side stuck when it was within four or five inches of being closed. They tried to complete the closing of the doors with the 'puller,' a leverage device attached to the door for this purpose, but it was bent and failed to operate properly. Plaintiff then went to the inspector's shanty to get a large crowbar to pry the door loose. He inserted the end of the bar behind a strip of metal on the car and pried against the door. When he first pulled on the bar nothing happened and the door did not move. He then exerted more strength, and as he pulled harder the door suddenly jumped closed and he fell to the ground on his back. He picked up the bar and took it back to the inspector's shanty, where he hung it up inside. He then wrote up the fact that he had closed the doors on the car; and after notifying the foreman that he had hurt his back he drove home in his car. Later that day he consulted a physician.

To sustain his burden of proving negligence by the railroad, plaintiff offered his own testimony and that of two supervisory employees called as adverse witnesses under section 60 of the Civil Practice Act, Ill.Rev.Stat.1957, c. 110, § 60. Plaintiff testified that he had been told by his foreman to close all car doors, if possible, including defective ones; that the car door in question was dented, bent and out of alignment, so that instead of running freely it was binding against the track; that the only tool available to him was the crowbar; that chain jacks were made available for use in closing car doors during the day shift and the second shift, but none were provided for the night shift; and that at defendant's Brooklyn Yards, located about three miles away, a chain jack is made available twenty-four hours a day. A chain jack is a ratchet device with a hook at each end of a chain. When used to close car doors one end is hooked to the door and the other to some piece on the car. It is operated by working the ratchet with a lever, thus applying steady pressure, and very little effort is required on the part of the operator. Plaintiff further testified, on cross-examination, that as a car inspector he had a duty to report any defect he found on car doors and that he did not make out any bad order report on the present door 'because sometimes we get somebody written up for that.'

Testimony by the two supervisory employees called by the plaintiff as adverse witnesses showed in substance that during the night shift at the Lower Yards, the only tools available to close difficult doors are crowbars; that chain jacks are kept at the repair tracks where they are used in closing car doors; that if it is necessary to use one to close a door before moving a car to the repair tracks, a repairman is called from the repair tracks; that the repair tracks are used only during the day shift; and that a chain jack is available 24 hours a day at the Brooklyn Yards.

Defendant introduced testimony from its car foreman, other car inspectors in its employ, and several supervisors from other railroads to the effect that chain jacks were not furnished car inspectors; that they are used occasionally on the repair track by car repairmen to close doors that are hard to close, and if a car is in transit the car repairman takes the chain jack from the repair track to the car or has the car sent to the repair track; that car inspectors at defendant's Lower Yards had instructions to 'bad order' a car and move it to the repair tracks if its doors could not be closed by hand or with a bar; and that the car in question was examined later in the morning of the accident and the...