Hall v. Chicago & N. W. Ry. Co.

• Decision Date: 08 March 1954
• Docket Number: 46201,Gen. Nos. 46184
• Court: United States Appellate Court of Illinois
• Parties: HALL v. CHICAGO & N. W. RY. CO.

Page 29

118 N.E.2d 29

1 Ill.App.2d 552

HALL v. CHICAGO & N. W. RY. CO.

Gen. Nos. 46184, 46201.

Appellate Court of Illinois, First District, First Division.

March 8, 1954.

Lowell Hastings, Drennan J. Slater, Edward Warden, Chicago, for appellant.

James A. Dooley, Chicago, for appellee.

FRIEND, Justice.

The plaintiff, James P. Hall, brought suit under the Federal Employers' Liability Act (45 U.S.C.A. §§ 51-60), to recover damages for personal injuries sustained while he was employed as a brakeman by the defendant, Chicago and North Western Railway Company, a common carrier engaged in interstate commerce. Following a jury verdict returned March 7, 1952 finding defendant guilty and assessing plaintiff's damages at $50,000, plaintiff moved for a new trial, which was allowed by the court. Defendant appealed from that order under section 77 of the Civil Practice Act, Ill.Rev.St.1953, ch. 110, § 201, and on review we remanded the case with directions to reinstate or restore the judgment, Hall v. Chicago & N. W. Ry. Co., 349 Ill.App. 175, 110 N.E.2d 654. The principal question involved on the first appeal was whether it was prejudicial error for defendant's counsel to advise the jury that any amount that might be awarded plaintiff by its verdict would not be subject to Federal income tax. We held that it was not because the Federal statute specifically so provides. On February 26, 1953, plaintiff filed a petition for leave to appeal to the Supreme Court of Illinois and pending the disposition thereof we stayed the mandate. Defendant filed a motion to dismiss that petition on the ground that the order granting a new trial was not a final and appealable order permitting an adjudication of defendant's motion for a judgment notwithstanding the verdict, and on May 14, 1953 plaintiff's petition for leave to appeal was dismissed. Subsequently, on May 29, 1953, the mandate issued by this court was filed in the Superior Court, the case was redocketed, and on June 4, 1953 a judgment was entered in favor of plaintiff pursuant to the mandate. Defendant then filed a notice of appeal from that judgment, but on June 9, 1953, on plaintiff's motion, the trial court vacated the judgment entered on June 4 and entered a new judgment. On June 9, 1953 the defendant filed notice of appeal from the new judgment entered on that day. Plaintiff then filed a second notice of appeal which also appealed from the judgment entered on June 9, 1953. On June 12 plaintiff filed a notice of cross-appeal from the judgment entered June 4, 1953, and on June 18 he filed a second notice of cross-appeal from the judgment entered on June 9, 1953.

On this appeal the principal question presented is whether the evidence in the record, most favorable to plaintiff, together with any reasonable inferences therefrom, establishes a breach of duty owed plaintiff by defendant. Defendant insists that it does not, and that the trial court therefore erred in refusing to enter judgment in its favor, pursuant to the motion for judgment notwithstanding the verdict.

The injury for which recovery is sought was sustained on August 11, 1947 at the Nachman Company premises in Chicago, Illinois. Evidence adduced upon trial showed that defendant was a railroad carrier and as such delivered and picked up freight cars from Nachman Company on a track that leads into the latter's premises from the main-line tracks of the defendant. These premises are enclosed by an iron fence, and freight cars and locomotives enter through a gate. The track leading into the premises, running in a northerly and southerly direction, is curved as it enters, and by reason thereof the gate post on the east side of the track is farther north than the gate post on the west side. On the east side of the track and immediately to the south of the gate, Nachman maintains a freight platform approximately the height of the floor of a freight car, for the purpose of loading and unloading merchandise. This platform, which has been in existence for some thirty-five years, abuts the building. There is uncontroverted evidence that if part of it were cut off it would not be usable for loading and unloading purposes. It is undisputed that there was no room for a man to stand between this platform and a freight car forty to fifty feet long; also, that on the north end of the platform, as one enters the gate, there was a large, legible sign, in all caps, bearing the legend: 'Warning No Clearance for Man on Side of Car.'

From plaintiff's own testimony it appears that on the day of the accident the switch crew, of which he was a member, had two loaded freight cars for delivery to Nachman. Four empty boxcars which were on the track within the premises had first to be taken out. The two loaded cars were uncoupled and left standing outside the gate on the main track immediately adjacent to and west of the Nachman track. After he had uncoupled these two cars, plaintiff, together with the conductor, walked south through the gate and into Nachman's premises. Plaintiff testified that as he walked through the gate, he observed the freight platform and saw that the track was curved. The angle position of the gate was obvious, and the warning sign on the freight platform was clearly displayed; plaintiff stated, however, that he did 'not believe [he] looked for a sign,' although his duty as a switchman required him to familiarize himself with local conditions.

After entering the Nachman premises through the open gate, plaintiff continued, for a distance of several hundred feet, to the four cars that were standing on the Nachman track. The engine and caboose then came in and coupled onto these four cars. The engine was facing north and pulled ahead, with the tender, caboose and four cars following in that order. Plaintiff had taken a position on the bottom step on the east side and south end of the caboose. He testified that it was his intention to ride beyond the freight platform and gate, to get off the caboose outside the gate, and to go to the two cars that had been left standing there. Instead of looking at the freight platform or at the gatepost on the east side of the track, he was looking across the platform of the caboose, and when he saw the gatepost on the west side of the track and the two cars, he got off, with his back to the loading platform, and was pressed between it and the car following the caboose. The train was moving about four miles an hour and stopped as soon as plaintiff fell. It was a clear day, but during the entire time plaintiff road on the caboose he never looked north toward the freight platform, although if he had looked he could have seen it. It is undisputed that while he was riding on the step of the caboose he was in the clear of the platform and in a safe place. There is nothing in the evidence to indicate that plaintiff's work required him to get off opposite the platform or that anyone told him to get off there. The place opposite the platform was not a place to stand during switching movements or a place from which to give signals. As a matter of fact, plaintiff testified--and his testimony is uncontroverted--that he did not alight from the caboose for the purpose of giving signals but because he mistakenly believed that he was getting off outside the gate to go to the two loaded cars in anticipation of the next switching operation.

Plaintiff was an experienced switchman and was cognizant of the rule which required him to familiarize himself with close clearances. While riding the caboose, he told Thompson, another member of the switching crew but new on the job, to 'ride high' on the cars because the platform would not clear. The foregoing facts were undisputed.

Under the Federal Employers' Liability Act it is incumbent upon plaintiff to prove that defendant was negligent, and that such negligence in whole or in part was the proximate cause of the injuries. Contributory negligence and the assumption of risk are no longer defenses under the Federal statute, except that contributory negligence may be taken into account by the jury in mitigation of damages. The complaint makes six charges of negligence. The first three, stated in different form, allege in substance that defendant failed to exercise care to provide plaintiff with a reasonably safe place within which to work. The fourth is that defendant carelessly and negligently allowed switching operations on and along the track adjacent to the loading platform, although it knew or in the exercise of ordinary care should have known that such operations were hazardous to its employees. In the fifth charge it is set out that defendant carelessly and negligently operated, maintained and moved over the switch track two fifty-foot cars which were wider than the standard railroad car and thus approached more closely the platform in question; and the last charge asserts that defendant carelessly and negligently operated, maintained and controlled the cut of cars on which plaintiff was riding so that as a direct and proximate result thereof plaintiff was crushed between the platform and said cars.

The principal evidence relied upon to support the charge that defendant failed to provide a reasonably safe place within which to work is the admitted fact that there was insufficient clearance to accommodate a person standing on the ground between the freight loading platform and a freight car on the adjacent curved track. There was no evidence whatever that the platform was defective in any way, that the business of defendant could be performed with the platform in any different location or at any greater distance from the track, that a loading platform of practical use could be placed or located any differently from the one in question, or that the platform and its proximity to a curving track was not standard, customary and in general use. Other evidence relied upon by plaintiff is that the platform had been there for thirty-five years;...