Harrison v. Missouri Pac. R. Co.

• Decision Date: 19 April 1962
• Docket Number: Gen. No. 61-0-7
• Citation: 35 Ill.App.2d 66,181 N.E.2d 737
• Parties: John E. HARRISON, Sr., Plaintiff-Appellant, v. MISSOURI PACIFIC RAILROAD COMPANY, a Corporation, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 737

181 N.E.2d 737

35 Ill.App.2d 66

John E. HARRISON, Sr., Plaintiff-Appellant, v. MISSOURI PACIFIC RAILROAD COMPANY, a Corporation, Defendant-Appellee.

Gen. No. 61-0-7.

Appellate Court of Illinois, Fourth District.

April 19, 1962.

Listeman & Bandy, E. St. Louis, for appellant.

Walker & Williams, E. St. Louis, for appellee.

CULBERTSON, Justice.

This cause is before us on appeal from an order of the Circuit Court of St. Clair County granting defendant's motion notwithstanding the verdict and entering judgment in bar of the action of JOHN E. HARRISON, SR., as against MISSOURI PACIFIC RAILROAD COMPANY. The complaint was filed under the provisions of the Federal Employers' Liability Act, to recover damages resulting from injuries inflicted upon the plaintiff by a co-employee named Anderson. The Jury in the cause had returned a verdict in the amount of $50,000.00 upon which judgment had been entered prior to the allowance of the posttrial motion for judgment notwithstanding the verdict. An alternative motion for a new trial was also filed by defendant and in the order granting the motion for judgment notwithstanding the verdict the Trial Court directed that in the event the judgment was reversed, the motion for new trial should be denied.

On appeal in this cause it is contended by plaintiff that he was discharging his duties as a section foreman and protecting the railroad property, and that the defendant Company knew that the employee Anderson was a vicious, quarrelsome, and dangerous person. Defendant's contention is that the judgment notwithstanding the verdict was properly granted because plaintiff had failed to prove that Anderson, the employee who made the assault on the plaintiff, was in fact a vicious, quarrelsome, and pugnacious person prior to the time of the assault on the plaintiff.

The record before us discloses that plaintiff had been employed by the railroad company for more than 45 years, and had been a section foreman for more than 15 years. According to plaintiff, his immediate superior, the Roadmaster of defendant, who normally would give plaintiff directions (after the employee Anderson had been placed on the crew under the supervision of the plaintiff), talked to the plaintiff as foreman and stated, 'you will have to watch him because he is a bad actor and a trouble maker,' and, 'I thought if youe could get anything out of him nobody else could.' The employee Anderson who committed the assault upon the plaintiff, was 42 years of age at the time of the trial, and had worked as a section laborer since 1948. Several of the section foremen under whom the employee Anderson had worked before the assault on plaintiff in 1957, testified that they had never known Anderson to strike or threaten to strike, or quarrel with other employees, or with the foreman, and had never observed or received complaints that he was vicious, pugnacious, or quarrelsome, or would not do his share of the work. Anderson himself, testified that he had never quarreled with other laborers with whom he worked, or with any of the formen under whom he worked; that he had never threatened to fight any of them and had never been called in by any foreman by reason of any complaint made by co-employees. He also denied he had used vulgar language at public crossings, or had put pins in a motor car seat, as alleged, or that the plaintiff had ever accused him of doing so.

The plaintiff Harrison testified that he had seen Anderson take a ballast fork and hide it in some pulp wood adjacent to the track. He tole him to go and get the ballast fork that he had stolen a few days previously and put it back on the pile of tools and nothing would be said about it. Employee Anderson took a few steps in the direction of where plaintiff stated he knew the fork was hidden and plaintiff turned his back and was looking in another direction when Anderson struck him an unexpected blow on the back of the head and knocked him unconscious. When the plaintiff regained consciousness and got on his feet he told Anderson, 'That's all for you.' Plaintiff...