Hannigan v. Elgin

• Decision Date: 13 June 1949
• Docket Number: Gen. No. 44555.
• Citation: 337 Ill.App. 538,86 N.E.2d 388
• Court: United States Appellate Court of Illinois
• Parties: HANNIGAN v. ELGIN, JOLIET & EASTERN RY. CO.

337 Ill.App. 538

86 N.E.2d 388

HANNIGAN

v.ELGIN, JOLIET & EASTERN RY. CO.

Gen. No. 44555.

Appellate Court of Illinois, First District, Third Division.

May 18, 1949.

Rehearing Denied June 13, 1949.

Appeal from Superior Court, Cook County; Perter H. Schwaba, Judge.

Action by Alfred Hannigan against the Elgin, Joliet and Eastern Railway Company, a corporation, under the Federal Employers' Liability Act for personal injuries sustained while employed as brakeman in defendant's yards. From the judgment, defendant appeals.

Judgment affirmed.Knapp, Cushing, Hershberger & Stevenson, Chicago, for appellant.

James A. Dooley, Chicago, for appellee.

BURKE, Presiding Justice.

Alfred Hannigan filed a complaint in the Superior Court of Cook County against Elgin, Joliet and Eastern Railway Company under the Federal Employers' Liability Act to recover damages for personal injuries alleged to have been sustained while employed as a brakeman on March 10, 1947, when he fell from the brake platform of a box car in defendant's yards at East Joliet, Illinois. Sec. 51, Title 45 U.S.C.A., provides that every common carrier in commerce between the states shall be liable in damages to any person suffering personal injury while employed by such carrier in such commerce, for such injury resulting in whole or in part from the negligence of any of the officers, agents or employees of such carrier, or by reason of any defect or insufficiency due to its negligence in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves or other equipment. The sole ground of liability was that the hand brake was not ‘efficient’ as required by Sec. 11, Title 45 U.S.C.A., (known as the Federal Safety Appliance Act), in that when the brake was released, the brake wheel spun and plaintiff, who was not holding to a grab iron, was thrown from the brake platform and injured. Sec. 11, Title 45 U.S.C.A., provides that it shall be unlawful for any common carrier subject to the provisions of Sec. 1-16 of that title to haul or permit to be hauled or to be used on its line any car not equipped with efficient hand brakes. A trial resulted in a verdict for plaintiff for $40,000. On denial of defendant's motion for a new trial, judgment was entered. Defendant, appealing, asks that the judgment be reversed and that the cause be remanded for a new trial.

Plaintiff, 55 years of age at the time of the trial, was, on March 10, 1947, employed by the defendant as a brakeman, whose duties consisted in getting trains ready, looking trains over and inspecting hand brakes. He had been so employed by the defendant for 23 years, and at the time of the mishap was earning over $300 monthly. Prior to his employment by defendant he had worked for other railroads. He had been a railroad man for 31 years prior to March 10, 1947. He had suffered several accidents; broken ribs in 1927; injuries to his right knee in 1936 or 1939, to his left leg in 1938 or 1941, and to his chest in August, 1943; a hernia in 1941; a cyst on his neck in 1944; and in 1943 and again in 1946 he injured his back. On March 10, 1947 he was working as rear brakeman on a run from Gary, Indiana, to Joliet, Illinois, and return. He lived in Gary. Preparatory to the trip to Gary, he was ‘looking the train over,’ releasing the brakes and inspecting the cars. The tracks in the yard run north and south. The train was headed south, with the engine at the south end. There was a caboose at the north end. There were 93 cars in the train. The cars were on track No. 3 in C. yard. Part of plaintiff's duties were to inspect and release brakes. He started this inspection at the rear or north end of the train, working towards the south end. The mishap occurred at about the 40th car from the caboose. Plaintiff testified that it was a Santa Fe steel box car about 40 feet long and 15 feet high. The brake, an Ajax type, was on the south end of the car. There was a brake wheel 15 or 20 inches in circumference, made of steel and having 4 or 5 spokes, just beneath the roof of the car. The brake platform was 2 to 2 1/2 or 3 feet below the roof. The platform is where the man stands in operating the brake. It is 12 or 13 feet above the ground, about 10 or 11 inches wide and 3 feet long. There is a dog or lever which holds the brake wheel. There is a chain which runs through the platform and hooks on to the brake shoes, which contracts the wheels. As one releases the brake wheel, he must turn it a little in the direction in which the brake is set in order to release the dog. The wheel is turned in a clockwise direction, then as the brake is released, the brake wheel comes around in a counterclockwise direction. Plaintiff went up on the south end of the Santa Fe box car to release a brake. He stood ‘east of the brake wheel, looking at the wheel’; he turned the brake wheel with both hands ‘not over half an inch at the most’ in a clockwise direction to release the dog or catch; then, he testified, ‘the wheel came back in a counterclockwise direction and threw me off,’ which would be to the outside of the car. As he fell, his back struck the draw bar, or coupler, in the center of the car, and he fell to the ground between the track on which the car was standing and the adjoining track. We infer that the place where he fell was to the west of the car from which he fell. After lying between the tracks for a few minutes, he walked to the yard office, 400 or 500 feet away; then he was taken in the automobile of a fellow worker to Silver Cross Hospital, Joliet, where he saw an interne. There was a cut on his ear which was bandaged by a nurse. He then returned to the yard office. After making some telephone calls, he was helped on the caboose of the train and rode on the return trip to Gary, propped up on cushions.

Plaintiff insists that defendant is not in a position to urge that the court erred in giving an instruction at his request because the defendant in its motion for a new trial did not specify the giving or refusal of particular instructions as error, and did not specify the grounds relied upon as error. Plaintiff maintains, under the authority of Krug v. Armour et al., 335 Ill.App. 222, 80 N.E.2d 386, that defendant has therefore waived and is precluded from raising any question as to the propriety of an action of the trial court concerning the instructions. We do not agree with plaintiff. In the Krug case it will be noted that the court considered the instructions on the merits and decided that there was no error in the giving of them. In the case of Chicago & State Line Railway Co. v. Mines, 221 Ill. 448, 77 N.E. 898, 901, the specification in the motion for new trial was with respect to error in giving ‘each one of the 15 instructions numbered from 1 to 15, given, as it said, at the request of appellees.’ The court held that this specification was sufficient to include alleged error in modifications of the instructions, although there was no such specification in the motion for a new trial. The court said, 221 Ill. at page 456, 77 N.E. at page 901:

‘While the language used in designating these objections in the points in support of the motion for a new trial was not strictly accurate, we think it served to advise the trial court that complaint was made of the giving of each of these 15 instructions, and that is all the law requires.’

The Mines case was decided in 1906, and the statute then in force was exactly like the provision in the present Civil Practice Act. Sec. 68 of the Civil Practice Act (Par. 192, Chap. 110, Ill.Rev.Stat.1947) states that a party moving for a new trial shall file the points in writing, ‘particularly specifying the grounds of such motion’. This was not a new provision when reenacted as part of the present Practice Act. A practically identical provision has been a part of the law in Illinois for more than a hundred years. The Practice Act of 1907, which was in force from 1907 to 1933 and which appeared in the Revised Statutes as Chapter 110, provides in Sec. 77 thereof: ‘and if either party may wish to except to the verdict, or for other causes, to move for a new trial or in arrest of judgment, he shall, before final judgment be entered, or during the term it is entered, by himself or counsel, file the points in writing, particularly specifying the grounds of such motion.’ The Practice Act in force prior to that time contained a similar provision. Hurd's Rev.Stat.1905, Chap. 110, Sec. 57 reads: ‘and if either party may wish to except to the verdict, or, for other causes, to move for a new trial or in arrest of judgment, he shall, before final judgment be entered, or during the term it is entered, by himself or counsel, file the points in writing, particularly specifying the grounds of such motion, and final judgment shall thereupon be stayed until such motion can be heard by the court. * * * (R.S.1845, p. 417, Sec. 24.)’

The case of Yarber v. Chicago & Alton Ry. Co., 235 Ill. 589, 85 N.E. 928, contains an analysis of the historical development of the law with respect to motions for a new trial. The court there points out that the object of the motion for a new trial was not to review any error of law committed by the court, but was to review the question of fact as found by the jury. The court said, 235 Ill. at page 601, 85 N.E. at page 933:

‘What is now section 77 of the practice act has been in force in its material parts, substantially as at present, since 1827. It directs the party moving for a new trial to file the points in writing, particularly specifying the grounds of his motion. We have held that this section is directory, and not mandatory. The party moving for a new trial may be required by the court or the opposite party to file the points in writing, specifying the grounds of his motion. If this is not required, and the motion is submitted without any statement in writing of the grounds therefor, and without objection, the requirement of such statement is...