Helton v. Thomson, Gen. No. 40948.

• Court: United States Appellate Court of Illinois
• Writing for the Court: FRIEND
• Citation: 311 Ill.App. 354,36 N.E.2d 267
• Decision Date: 17 September 1941
• Docket Number: Gen. No. 40948.
• Parties: HELTON v. THOMSON.

311 Ill.App. 354
36 N.E.2d 267

HELTON
v.
THOMSON.

Gen. No. 40948.

Appellate Court of Illinois, First District, Second Division.

July 1, 1941.
Rehearing Denied Sept. 17, 1941.

Appeal from Superior Court, Cook County; Oscar F. Nelson, Judge.

Suit by Robert A. Helton, administrator of the estate of Walter J. Probert, deceased, against Charles M. Thomson, trustee of the Chicago & Northwestern Railway Company, substituted on appeal for Charles P. Megan, trustee, and the Chicago & Northwestern Railway Company, for death of railroad employee. From a judgment on a verdict for plaintiff, defendant appeals.

Reversed.

[36 N.E.2d 268]

Nelson J. Wilcox and I. C. Belden, both of Chicago, for appellant.

H. A. Barnhardt, of Chicago, for appellee.

FRIEND, Presiding Justice.

Robert A. Helton, administrator of the estate of Walter J. Probert, deceased, brought suit under the Federal Employers' Liability Act, 45 U.S.C.A. §§ 51-59, to recover damages for the death of his intestate. The jury returned a verdict in favor of plaintiff assessing his damages at $13,500. Defendant appeals from the judgment entered on the verdict.

There is substantially no dispute as to the salient facts. Defendant operates a railroad with two double track main lines between Chicago and Milwaukee. On the night of February 3, 1938, its freight train, consisting of an engine, cars and a caboose, proceeded south on the southbound main line track from Milwaukee, Wisconsin, to Waukegan, Illinois, where pursuant to some switching operations the conductor and rear brakeman discovered that there was a leak in the air brake pipe underneath the eighth car ahead of the caboose, which was also the 34th car back of the engine. It was decided to take that car out of the train and leave it at Waukegan, a car repair point along the right of way. The operation normally required to set this car out for repairs necessitated the uncoupling of the automatic couplers at the rear end of that car, closing the air line pipe at both ends of the car by turning the shutoff or angle cocks, closing the air line pipe at the rear end of the car ahead, and “bleeding” the air out of the air line and the auxiliary air tanks on the eighth car itself. Following these various steps the engine would then haul the forward 34 cars, including the defective one, to an appropriate switch track, where the bad car would be set out and left and the remainder of the then 33 forward cars would be backed against and coupled onto the rear 7 cars and caboose, permitting the train to proceed on its way south to Chicago, which was its final destination. The various steps necessary to setting out the defective car had been completed to the point of shutting off the air line and bleeding the car, but then upon information from decedent to the crew, the engine, with the 34 cars next behind it, including the “bad order car” at the end of the string, pulled out south, leaving the other seven cars and the caboose, as well as the conductor and the rear brakeman, at Waukegan. Walter J. Probert, plaintiff's intestate, the head brakeman on the train, was at the front of the train, off and on the engine, while the various necessary steps heretofore described were followed, and it was he who was responsible for the movement out of Waukegan, leaving

[36 N.E.2d 269]

part of the train and crew behind. As the result of this situation, the yard clerk at Waukegan, near whose office the incident had taken place, telephoned to the chief dispatcher at Chicago reporting the circumstances, and as the engine and 34 cars were proceeding south, the train was intercepted by the towerman at Lake Bluff, the next interlocking plant and tower, some 5 or 6 miles south of Waukegan, and ordered to stop. The chief train dispatcher at Chicago, who had received a telephone call from the yard clerk at Waukegan, dictated a message to the towerman at Lake Bluff with directions that it be delivered to the engineer in charge of the train as it passed through Lake Bluff. The message read: “Chicago, Illinois, February 3, 1938. To Engr. You left your rear part of train at Waukegan. Set out part of train you now have on east passing track at Lake Bluff and return at Waukegan on westward track for balance of your train. O A G.”

Ira M. Arquilla, towerman at Lake Bluff, stopped the engine at his tower as directed and delivered the original message to Probert, the deceased. Probert thereupon read it aloud to the enginemen, then handed it to the engineer, Albert Olsen, who read it aloud to the fireman, Henry Christiansen, and Probert. The engineer and Probert, in the presence of the fireman, then discussed the movements necessary to carry out the instructions of the chief dispatcher, and came to an understanding, which the engineer, who was in charge of the train in the absence of the conductor, formulated and which was as follows: The train was to proceed on in a southerly direction; Probert was to get off the engine at the pot, or dwarf, signal, at the south end of the interlocking plant, stay there until the rear car cleared that signal, and then with his lighted fusee (a bright red signal light), signal to the enginemen to stop. He was then to await the indication on the pot, or dwarf, signal, alternately operated as a part of the interlocking plant, that the train might be backed into and on the plant and into the east passing track and then signal the enginemen to so back up. This was described by several witnesses as the appropriate and only operation necessary to carry out the order of the train dispatcher.

The layout of the tracks at Lake Bluff is shown by a blueprint introduced in evidence. The main line between Chicago and Milwaukee runs directly north and south, and not far west of Lake Michigan. Although defendant operates two double track main lines between these points, the more easterly of the two is the only one involved in this proceeding. In railroad parlance the more easterly track of this line is called the east track, which takes care of the southbound traffic from Milwaukee to Chicago. The so-called west track accommodates the traffic north from Chicago into Milwaukee. Except in emergency or other unusual circumstances, no northbound trains are operated on the easterly or southbound track. In double track territory the Northwestern operates its trains on the left- hand tracks, but the engineer is stationed on the right-hand side of the engine, as on other railroads, and the fireman on the left-hand side thereof. Owing to a slight curve in the track, and obstructions near the track south of the tower and the pot signal, and the location of the latter on the east or fireman side of the train, Probert's signals had to be and were received by the fireman and orally transmitted to the engineer, who could not see Probert from the right side of the engine.

About 400 feet south of the south end of the interlocking plant and the pot signal there is at Lake Bluff leading at an acute angle north from its switch, a short siding, built to accommodate some ten or twelve cars, called the house track, the switch of which, connecting it with the easterly or southbound main track, is operated by hand. It has no switch light on it for night switching, and is not a part of and is incapable of being operated by the interlocking plant. This house track was built to serve the freight house built adjacent to it and was used for “spotting” merchandise cars there, usually one at a time, for loading or unloading at the freight house.

The so-called east passing track onto which the chief dispatcher ordered the engineer and Probert to put the 34 cars is a long track accommodating some 40 to 50 cars. It is connected with the easterly or southbound main track only at its south end, being in fact a stub track which was seldom used as a passing track, even though...