Hosie v. Chicago and North Western Railway Company

• Decision Date: 28 September 1960
• Docket Number: No. 12953.,12953.
• Citation: 282 F.2d 639
• Parties: James HOSIE, Plaintiff-Appellant, v. CHICAGO AND NORTH WESTERN RAILWAY COMPANY, a corporation, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

282 F.2d 639 (1960)

James HOSIE, Plaintiff-Appellant, v. CHICAGO AND NORTH WESTERN RAILWAY COMPANY, a corporation, Defendant-Appellee.

No. 12953.

United States Court of Appeals Seventh Circuit.

September 28, 1960.

Joseph Barbera, Chicago, Ill., for appellant.

John H. Gobel and Edward Warden, Chicago, Ill., for appellee.

Before DUFFY, KNOCH and CASTLE, Circuit Judges.

DUFFY, Circuit Judge.

This is a suit for damages for personal injuries which plaintiff suffered when he was struck by one of defendant's trains on or near the intersection of the defendant's tracks with Hale Street and Chicago Avenue, in the Village of Palatine, Cook County, Illinois.

On the day before the trial, the District Court, on its own motion, severed the issue of damages from the issue of liability, acting under Rule 21 of the Civil Rules of the District Court for the Northern District of Illinois.¹ Both the plaintiff and defendant objected to the severance.

At the close of plaintiff's case, defendant moved for a directed verdict which motion was denied. Defendant then rested without offering any evidence. The issue of liability was submitted to the jury, and a verdict finding the defendant "not guilty" of negligence was returned. Judgment in favor of defendant was entered on the verdict.

Hale Street is unpaved south of the tracks and comes to a dead end about one block south of the intersection. North of the tracks, Hale Street is approximately 24 feet in width from curb to curb. South of the track the width of the travelled portion of the street is approximately 40 feet. On the east side of Hale Street and south of the tracks, there is a driveway which leads into the premises of the Hines Lumber Company. Also east of the crossing, a switch track runs in a southeasterly direction from which freight cars can be loaded into and unloaded from the Hines building.

Chicago Avenue is a paved street 30 feet 6 inches wide. A crossing gate is located at the southeast corner of the intersection and also on the northwest corner. A similar gate is located on Chicago Avenue west of the intersection which barricades the sidewalks as well as the street. The posts which support the gates are equipped with flasher lights.

Two main lines of railroad track cross the intersection at an angle of approximately 30 degrees; the northerly tracks are used for southeast bound trains, while the southerly tracks are utilized by northwest bound trains. The Palatine station of the railroad is located approximately 650 feet northwest of the intersection which has been hereinbefore described.

At the time of the occurrence, plaintiff was forty-three years of age, and was employed by Hines Lumber Company as a yard foreman at its Palatine branch. His duties were to see that freight cars brought into the Hines yard were properly loaded and unloaded. The work of unloading the cars was done by stevedores from Chicago. On the morning in question, stevedores were supposed to arrive at the Palatine station on the train due from Chicago at 7:35 a. m.

Plaintiff checked the cars that were on the Hines siding. In a pretrial statement, he stated that he walked to a point between the tracks and the Hines building, and then proceeded toward the switch stand which is some distance southeast of the crossing. He also said he did not again look to the southeast from which direction the train from Chicago would come. He stated that he came to a stop just west of the switch stand.

On the trial, however, plaintiff stated he was standing at the crossing about one foot distant from the south rail of the most southerly main track. He saw a southeast bound train pass by on the parallel track and waved to the engineer. He claims he neither saw nor heard the train from Chicago before it struck him, although according to his trial testimony, he was then not more than one foot distant from the nearest rail.

Plaintiff asserts prejudicial error in the giving and refusing to give certain instructions. Of course, the instructions must be considered as a whole. Affleck v. Chicago & N. W. R. Co., 7 Cir., 253 F.2d 249, 251-252. By so considering them, we find no prejudicial error.

Plaintiff claims prejudicial error because the Court refused to permit plaintiff to introduce the pretrial deposition of Chester Pauly, or permit plaintiff to call him as an adverse witness. Pauly was a fireman who, at times, acted as engineer, and who, on the day plaintiff was injured, was acting as engineer on the diesel engine which was pulling the train which struck plaintiff.

Rule 43(b), Federal Rules of Civil Procedure, 28 U.S.C.A., provides that a party may call an adverse party or an officer, director or managing agent of a corporation which is an adverse party, and interrogate him by leading questions. Defendant's employee Pauly was not an officer, director or managing agent of the defendant. The rule does not provide that any employee of an adverse party may be called adversely. Dowell, Inc. v. Jowers, 5 Cir., 182 F.2d 576.

There was no prejudicial error in the refusal of the trial court to permit plaintiff's counsel to read Pauly's deposition to the jury. Rule 26(d) (3) provides: "5, upon application and notice, that such exceptional circumstances exist as to make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court, to allow the deposition to be used." No notice was given of plaintiff's intention to read the deposition which had been taken for discovery purposes. At the demand of the trial court, Pauly was personally present in court at the time the request was made that his deposition be read. We are unable to discover any "exceptional circumstances" within the meaning of the rule. As was well said in Napier v. Bossard, 2 Cir., 102 F.2d 467, 469: "The deposition always has been, and still is, treated as a substitute, a second-best, not to be used when the original is at hand."

Plaintiff claims section 60 of the Illinois Practice Act applies (Ill.Rev.Stat. 1959, ch. 110, § 60). However, we are here concerned with a matter of federal procedure and the Illinois Practice Act is not applicable.

Plaintiff asserts error because his counsel was not permitted to comment to the jury upon the failure of defendant to produce and place on the witness stand the train crews of both the north-and south-bound trains which passed the intersection shortly before and at the time plaintiff was injured. We do not think this was error in a situation where defendant introduced no evidence at all, but relied on the proposition that plaintiff had failed to meet the burden of proof upon him to support the allegations of his complaint.

There remains for consideration the very important question of whether plaintiff was deprived of a jury trial in violation of the Seventh Amendment of the Constitution of the United States when the trial court sua sponte and over the objection of plaintiff, ordered the case to proceed to trial solely on the issue of liability.

It is true, defendant's counsel also objected, but did so on the basis that the issues in the instant case might be tried before two juries if the issues of liability and damages were tried separately. As it turned out, the issue of damages was not reached because of the jury's finding of no liability.

Plaintiff argues that the record clearly indicates the trial judge intended to submit the issue of damages to a second jury if that issue were reached. Granting this to be true, we do not face that question on this appeal. Whether a party is deprived of a jury trial as contemplated by the Seventh Amendment when some of the issues are submitted to one jury and other issues to a second jury, is a more difficult question to resolve. However, we emphasize that we do not pass on that question on this appeal.

Plaintiff argues that the application of local Rule 21 to the trial below abridged and modified his right to a jury trial as guaranteed by the Seventh Amendment. He charges such procedure changed the ancient and long-established manner of conducting trials of civil cases at common law.

The Seventh Amendment to the Constitution of the United States reads:

"In Suits at common law, where the value in controversy shall exceed twenty dollars, the

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