Illinois Cent. R. Co. v. Norris

• Decision Date: 23 August 1917
• Docket Number: 2452.
• Citation: 245 F. 926
• Parties: ILLINOIS CENT. R. CO. v. NORRIS.
• Court: U.S. Court of Appeals — Seventh Circuit

245 F. 926

ILLINOIS CENT. R. CO. v. NORRIS.

No. 2452.

United States Court of Appeals, Seventh Circuit.

August 23, 1917

Action for damages arising out of the death of Herbert Norris. Verdict and judgment for defendant in error, herein called the plaintiff. Herbert Norris, a brakeman employed by plaintiff in error, herein called the defendant, died as a result of injuries received while occupied in the line of his employment on a freight train engaged in interstate commerce. The train crew, of which deceased was one, was composed of five members, the engineer, fireman, two brakemen, and a conductor, and this crew at the time of the injury was engaged in switching out cars at Centralia, Ill. The main train was on the main track and faced south, and the rear brakeman was stationed to the rear of the train. Norris was a front brakeman, and with the conductor was cutting out and switching cars to the side track. Plaintiff claims that deceased was between two cars cutting the line, when the conductor signaled the engineer to back up. Norris' foot was somehow caught between the point of the side track and the main track, and he was knocked down and run over. After being backed, the train was again moved forward. The injury occurred about 9 o'clock p.m., and Norris died the next day. The engineer testified that, very shortly before he received the signal to back up he saw on the same side of the train two lanterns, one of which he believed was carried by the brakeman and one by the conductor. The conductor testified that he did not know where Norris was, and that he did not see him nor his lantern shortly before he gave the signal to back up, and that he did not know, nor was it his duty to find out, Norris' exact position before giving the signal to back up.

Prior to the commencement of this action, a claim was filed with the Industrial Board of the state of Illinois, and counsel for the plaintiff there contended that the accident was an unavoidable one, and occurred without any negligence on the part of the railroad's employes. The trial court refused to let defendant show this fact on the trial. In the course of the trial, plaintiff called the conductor as her witness and he testified with apparent willingness. After the cross-examination, but not in respect to anything brought out thereon, plaintiff's attorney asked the witness whether he did not make a certain answer to a certain question before the Industrial Board, and over the defendant's objection the witness was directed to answer. More detailed reference to the testimony appears in the opinion. On September 10, 1915, the declaration was filed and summons issued. Norris was injured September 14, 1913. The original declaration was, upon demurrer, held insufficient. An amended declaration was filed more than two years after the date of the death. Defendant thereupon pleaded the statute of limitations, but a demurrer to this plea was sustained.

The following errors are assigned: (a) Failure of the court to hold plaintiff's claim barred by the statute of limitations. (b) Failure of the court to direct verdict in defendant's favor. (c) Erroneous admission of evidence. (d) Erroneous rejection of evidence.

Bruce A. Campbell, of East St. Louis, Ill., for plaintiff in error.

Jacob Zimmerman, of Effingham, Ill., for defendant in error.

Before BAKER, ALSCHULER, and EVANS, Circuit Judges.

EVANS Circuit Judge (after stating the facts as above).

Defendant contends that the liability created by Act April 22, 1908, c. 149, Sec. 1 (Comp. St. 1916, Sec. 8657), is barred in the instant case, because the personal representatives of the deceased failed to bring this action within two years from the date the cause of action accrued. It admits the declaration was filed within two years from the date of Norris' death, yet it is claimed, the original declaration being insufficient to state a cause of action, the statute of limitations was not tolled until the amended and sufficient declaration was filed. It is unnecessary for us to decide in this case whether an action is begun within the meaning of this act by the issuance of a summons upon the filing of an insufficient declaration. We are convinced that the original declaration (held insufficient by the District Court) stated a cause of action against the defendant.

The particular attack upon the declaration as originally filed was directed to the failure of the pleader to allege a duty on the part of the conductor to the brakeman and its violation, and much dependence in support thereof is placed on the case of McAndrews v. C.L. & S. Railway Co., 222 Ill. 232, 78 N.E. 603. We are convinced that the declaration in the present case is distinguishable from the declarations in the cases cited in defendant's brief, including the McAndrews Case. Section 8657, Compiled Statutes 1916, expressly imposes upon the carrier a liability to the personal representatives of an injured employe who dies from injuries resulting in whole or in part from the negligence of any of the employes of such carrier. Plaintiff in this case alleged facts to show that the carrier was engaged in interstate commerce at the time of the injury, and the act referred to unquestionably applied and governed the rights of the parties to this action. It was therefore unnecessary to assert in the declaration the particular duty which the conductor owed to the brakeman, for Congress by this act imposed a liability on the railroad in case injury resulted to one employe through the negligence of another. Irrespective of the act of Congress, it is doubtful if greater particularity would have been required to sustain the original declaration, although in many jurisdictions it would have been subject to a motion to make more definite and certain.

The original declaration being sufficient, nothing remains of defendant's contention that the action was not brought within two years from September 15, 1913.

Defendant further contends that the evidence, viewed most favorably to the plaintiff, fails to support a verdict against it, and that the motion to direct the verdict for the defendant should have been granted. The alleged negligence of the defendant was based upon the action of the conductor in directing the engineer to back up the train when Norris was between the cars and subject to be injured by any sudden and unexpected movement of the cars. It appears from the testimony of the engineer that, immediately before receiving this signal to back up, he looked out of the cab window and saw, upon the same side of the train, light from two different lanterns, and it is well nigh impossible to conclude that these two lanterns were held by any one other than the conductor and the brakeman, Norris. It is therefore contended by the plaintiff that, the brakeman being between the conductor and the engineer shortly before the signal to back was given and he having disappeared at the time the signal was given, the conductor was negligent in directing a movement of the train which was necessarily fraught with such danger to the life of the brakeman.

Defendant contends that, notwithstanding this evidence, it was free from neglect, because of the testimony of the conductor to the effect that he did not see the brakeman, and that it was not...