Johnson v. Elgin, J.&E. Ry. Co.

• Decision Date: 06 September 1949
• Docket Number: Gen. No. 10211.
• Citation: 338 Ill.App. 316,87 N.E.2d 567
• Parties: JOHNSON v. ELGIN, J. & E. RY. CO.
• Court: United States Appellate Court of Illinois

338 Ill.App. 316

87 N.E.2d 567

JOHNSON

v.ELGIN, J. & E. RY. CO.

Gen. No. 10211.

Appellate Court of Illinois, Second District.

Nov. 12, 1948.

As Modified on Denial of Rehearing Sept. 6, 1949.

Appeal from Circuit Court, Lake County; Ralph J. Dady, Judge.

Action under the Federal Employers' Liability Act by Peter M. Johnson, by Essie Williams, his next friend, against Elgin, Joliet & Eastern Railway Company, a corporation, to recover damages for injuries. From judgment in favor of the plaintiff, the defendant appealed. The plaintiff having died during the appeal, the administratrix of his estate was substituted as plaintiff.

Judgment affirmed.Knapp, Cushing, Herschberger & Stevenson, of Chicago, Hall, Meyer & Carey, of Waukegan, and H. L. Hackebert, of Chicago, for appellant.

Jos. Kaufer, of Waukegan, for appellee.

DOVE, Justice.

This is an action at law under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., to recover damages for injuries sustained by the plaintiff, a hostler's helper at defendant's roundhouse at Waukegan, Illinois. The complaint consisted of two counts and as amended alleged, among other things that on March 7, 1945, plaintiff was employed by the defendant and on this date was engaged in filling the water tank of a locomotive tender and while so engaged was required to stand and walk about and on the top of said tender which was unsafe and in an improper condition in that the top where plaintiff was required to work was slippery and covered with snow, ice and water and other substances; that as a direct result of said unsafe and improper condition plaintiff slipped and fell over the edge of the tender and upon the ground and as a result thereof suffered the injuries to recover for which this suit is brought. After the issues had been made up there was a trial before the court and jury resulting in a verdict for the plaintiff for $8000.00. Upon this verdict judgment was rendered and the defendant brings the record to this court for review.

During the pendency of this appeal the plaintiff, Peter M. Johnson, died and his administratrix has been substituted as plaintiff. The evidence discloses that Peter M. Johnson was a colored man, about fifty-eight years of age at the time of the accident. He had worked for the Chicago & Northwestern Railroad at its roundhouse in Waukegan for fifteen years and for eight years prior to the time he was injured had been employed by the defendant as a hostler's helper at its roundhouse in Waukegan.

Armas Balberg was the hostler employed by defendant and his duties were to operate the engines in and out of the roundhouse. The duties of Johnson, his helper, were to put water, sand and coal in the engine, to clean the fire and prepare it for service. On March 7, 1945 about 7:30 in the evening Armas Balberg took this particular switch engine out of the roundhouse and moved it to the pen stock or water spout preparatory to filling the five thousand gallon tank with water. Johnson was on the ground and swung the water spout over the tender by means of a lever at the base of the pen stock. Johnson then climbed the steps on the back of the tender to the top and lowered the mouth of the spout into the oval manhole of the tank and turned the water on. Johnson testified that it takes forty-five or fifty minutes to fill the tank, that he had been on top of the tender about ten minutes and did not see any snow or ice on the tender but saw some water, that the sides of the coal bin rise above the top of the tender, that after he turned the water on he faced south with his back toward the cab of the engine and his right foot was on the west between the manhole and coal bin and his left foot east of the manhole on the east edge of the top of the tender. He continued: ‘I couldn't quite see. There was no light over me where I was working. There was a light to the north about the length of an engine and a light to the west about the same distance. I couldn't see so good and then I slipped on a piece of ice and went down. I tried to grab something. There was nothing to grab, no hand rail, I felt my foot slip on the ice. I remember hitting the ground. I was wearing high top boots with rubber soles.’

Mr. Balberg testified that after Johnson turned the water on he, Johnson, went to the front edge of the top of the tender, secured a shovel and Balberg heard him shoveling coal in the coal bin and a moment or two later saw him falling through the air on the right side of the tender. As a result of the fall Johnson was rendered unconscious and was immediately taken to Victory Memorial Hospital in Waukegan where it was found that he had fractured both wrists and suffered extensive and severe injuries. The left upper eyelid was paralyzed and there was a paralysis of the movement of the eyeball. He did not regain consciousness for several days and Dr. Barnes who attended him at the hospital testified that his final diagnosis, as recorded by the hospital history was that Johnson suffered a ‘fracture of both wrists, cerebral concussion, possible basal skull fracture, with injury to the left oculomotor nerves.’ It was the doctor's opinion, however, that Johnson did not have a cerebral hemorrhage and upon his discharge from the hospital on April 23, 1945 the doctor's testimony was that his notes disclose that Johnson ‘appeared to be oriented, comfortable and happy and aside from the oculomotor paralysis he appeared to be alright. He was eating well, walking around the corridors and feeling well.’

After leaving the hospital Johnson went to the home where he had been living at the time of the accident. He was unable to work. Upon one occasion before he left the hospital he was visited by H. E. Pasold, Division Claim Agent for the defendant. After Johnson left the hospital Pasold called upon him at his home on three or four occasions prior to November 5, 1945. On November 5, 1945 Pasold called and, according to Pasold's testimony, told Johnson and Hannah Gibbs, Johnson's housekeeper, whom Pasold assumed to be Johnson's wife, that he wanted to talk to them about making a final settlement for the injuries which Johnson sustained on March 7, 1945, that he told them Johnson had been on their compensation pay roll for approximately eight months, that they had paid him $600.00 and that he would offer him $1000.00 in addition to the $600.00 he had already received as a final settlement. This witness continued: ‘I explained to him that I based that on the fact that he had been off for eight months and his wages were approximately $200.00 per month, so by giving him $1000.00 in addition to the $600.00 I was really reimbursing him for the time he would have lost during those eight months * * * I asked Johnson if he thought I was fair; that I wanted to treat him right and I thought that was a fair figure and personally I couldn't raise it. I told them there was no rush but to think it over and if they wanted to take care of it today they could, that I had brought a draft with me but it was up to them. They didn't say anything; just looked at each other and listened. I told them I had been giving it considerable thought. Pete said he thought that was very fair and Hannah said, ‘Yes, Pete has always said that if everybody was as nice to us as you have been, we wouldn't have anything to complain about.’ I then told him if he wanted this thousand dollars he would have to sign a release in settlement for his claim; that it would be necessary for him to go down to the yard master's office because I would have to use a typewriter to make several copies of the release and he said that was perfectly alright, he would go. I asked Hannah if she would go and she said she would have to bring the children. After we had agreed on the settlement he said: ‘What about going back to work?’ And I said I knew of a job that I thought he could handle and I thought he could have it. I said the job wasn't part of the settlement but there was a janitor's job and I said it was paying approximately what he was getting previously but it was only a six day job instead of seven. Hannah said that was alright and I said after signing the release you can talk to Mr. Cooper who has charge of that job and that a nice feature about the job was that there was no bumping, that if he could do the work satisfactorily, there was no question of losing it.'

The Mr. Cooper referred to was Alfred Cooper, general yard master of the defendant. He drove Mr. Pasold to the Johnson home on November 5, 1945 and remained in the car. When Pasold, Johnson, Hannah Gibbs and the two children came out of the house and got in his car he drove them to his office. When they arrived there Pasold, Johnson and Copper left Hannah and the children in the car while they went into Copper's office. Cooper returned to the car immediately and remained with Hannah and the children. Pasold prepared a check for $1000.00 and the following release in triplicate, which was shortly thereafter signed by Peter M. Johnson, Hannah Gibbs and H. E. Pasold who also signed the name of O. F. Gnadinger thereto.

‘Settlement for Injuries

Do Not Sign Without Understanding.

Elgin, Joliet and Eastern Railway Company hereby agrees to pay to Peter M. Johnson, employed as a Roundhouse Laborer on the 7th day of March A. D., 1945 the sum of One Thousand and no/100 Dollars, and said Peter M. Johnson in consideration thereof does hereby release and discharge said Company _____ from all claims and demands which he has against said Company _____ on account of all injuries received by him in any accident or accidents which may have happened before the signing of this contract of settlement, and also especially on account of all injuries received by him in an accident which happened on or about the 7th day of March A. D. 1945 at or near Waukegan, Illinois and which resulted in injuries to him and whether or not such injuries or their extent are known to him.

This contract of...