Helton v. Thomson

Decision Date17 September 1941
Docket NumberGen. No. 40948.
Citation311 Ill.App. 354,36 N.E.2d 267
PartiesHELTON v. THOMSON.
CourtUnited States Appellate Court of Illinois

OPINION TEXT STARTS HERE

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. 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 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 it was so-called, but was commonly used as a convenience by a station to station train or switch run to temporarily store a portion of its cars while working at other stations and then returning to take them up. This passing track was also used, as indicated by the evidence, for setting out bad order cars until the repair man could come and repair them, and for holding “bunk” cars, where trainmen live, eat and sleep while at work in that neighborhood.

After the message was received and read aloud to the enginemen, then handed to the engineer who read it aloud to the fireman and Probert, the crew proceeded to carry out the switching operation under the direction of the engineer, in pursuance of the instructions received and the plan agreed upon. The engine and cars proceeded south and Probert got off the engine at the pot signal. The accident occurred about 4 o'clock in the morning, and owing to the darkness, the weather conditions and the circumstances involved, signals had to be and were given by lighted fusees, which were in Probert's possession. The 34 cars and engine constituted a rather lengthy train, so that the fireman and engineer were nearly one-third of a mile from where Probert was stationed. Probert alighted from the engine on which he was riding at the signal as planned and he then undoubtedly knew that there were no cars on the east passing track and that the track was clear. The first signal from Probert's fusee, after he alighted from the engine, was the car stop signal, which was given from either the side or top of a car at the end of the train. The fireman at once transmitted this signal to the engineer, who then brought the train to a stop. From the top of a car Probert next gave the car back-up signal, which the fireman again relayed to the engineer, who then acted upon it and started the train in a backward motion. The next was a slow signal, indicating desired retardation of speed, which was at once followed by the engineer by applying his independent brake, which acts upon the engine alone and has the effect of slowing the engine and the whole train. Probert, by means of his...

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  • Miller v. Terminal R. Ass'n of St. Louis
    • United States
    • Missouri Supreme Court
    • July 1, 1942
    ...therefor to respondent. Atlantic Coast Line v. Driggers, 279 U.S. 787, 73 L.Ed. 957; Willis v. P. R. Co., 122 F.2d 248; Helton v. Thompson, 36 N.E.2d 267. (2) The Illinois law is not applicable. The rights of both appellant and respondent must be determined by the Federal Employers' Liabili......
  • Laird v. Illinois Cent. Gulf R. Co.
    • United States
    • United States Appellate Court of Illinois
    • February 4, 1991
    ...278 U.S. 139, 49 S.Ct. 91, 73 L.Ed. 224; Davis v. Kennedy (1924), 266 U.S. 147, 45 S.Ct. 33, 69 L.Ed. 212; and Helton v. Thomson (1941), 311 Ill.App. 354, 36 N.E.2d 267, cert. denied (1942), 316 U.S. 688, 62 S.Ct. 1280, 86 L.Ed. 1760, rehearing denied (1942), 317 U.S. 704, 63 S.Ct. 24, 87 L......
  • Butz v. Union Pac. R. Co.
    • United States
    • Utah Supreme Court
    • June 19, 1951
    ...'Willis' neglect of his personal duty to act as watchman was the sole cause of his own death.' A similar case is Helton v. Thomson, 311 Ill.App. 354, 36 N.E.2d 267, where a brakeman directed a train to be backed onto a short dangerous switch track causing the train to overturn and held to b......
  • Baker v. CSX Transp., Inc.
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    • United States Appellate Court of Illinois
    • October 25, 1991
    ...duty constituted the sole proximate cause of his injuries or death. (Annot., 59 A.L.R.2d 644 (1958); e.g., Helton v. Thomson (1941), 311 Ill.App. 354, 363-64, 36 N.E.2d 267, 272.) We cannot help but conclude from this discussion that whether plaintiff's alleged conduct is called contributor......
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