Kaminski v. Chicago River & Indiana R. Co.

• Decision Date: 05 January 1953
• Docket Number: No. 10603.,10603.
• Citation: 200 F.2d 1
• Parties: KAMINSKI v. CHICAGO RIVER & INDIANA R. CO.
• Court: U.S. Court of Appeals — Seventh Circuit

200 F.2d 1 (1952)

KAMINSKI v. CHICAGO RIVER & INDIANA R. CO.

No. 10603.

United States Court of Appeals Seventh Circuit.

November 6, 1952.

Rehearing Denied January 5, 1953.

Wayne M. Hoffman, Marvin A. Jersild, James F. Ward, Chicago, Ill., for appellant.

Edward L. Richter, R. N. Wyckoff, Chicago, Ill., James C. Murray, Chicago, Ill., for appellee.

Before MAJOR, Chief Judge, and KERNER and FINNEGAN, Circuit Judges.

FINNEGAN, Circuit Judge.

Appellant, Chicago River and Indiana Railroad Company, defendant below, seeks a reversal of a judgment for $50,000 based on a verdict against it in an action brought by plaintiff-appellee under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq. It contends that the trial court erred in denying motions to direct a verdict for the defendant made at the close of plaintiff's case and after the close of all the evidence; that there was like error in denying its motion for judgment non obstante veredicto. It is further urged that the District Court erred in its instructions to the jury, and that a new trial should be granted because the verdict was so excessive as to imply passion and prejudice on the part of the jury.

There is practically no dispute between the parties as to the facts disclosed by the record.

On April 4, 1950, Roman W. Kaminski, plaintiff and employee of the defendant, began to work at midnight as conductor in charge of a switch engine and crew in the neighborhood of 40th Street and Ashland Avenue, Chicago, Illinois. One of the industries to be served that night by plaintiff's crew was the Phoenix Metal Cap Company. Its industry track known as Phoenix No. 1 extended inside the building of the company. At about three a. m. on the date in question, this track held five or six cars of which one and one-half cars were on the track inside the building itself. Plaintiff walked along a pathway or lane two and one-half feet wide between the cars and the loading dock while checking the car numbers on the side of the cars. It was dark and no lights were lit in the building. However, plaintiff carried a standard switchman's lantern which he used to see his way and to check the car numbers. Plaintiff had walked across this same path or lane on previous nights and had also been there during the daytime. He testified that the walk looked the same as it always had on previous occasions. He stated that on the night of the accident he watched the ground in front of him as he always did, and that he suddenly fell through something and landed in the space below the ground level, which had previously been used by the Phoenix Company as a coal pit but which on this date, and for about a year, had been empty. Plaintiff was alone at the time, and there were no other eye witnesses.

After the accident, it was discovered that there was a hole about two to two and one-half feet square partially covered with some material about three-eighths of an inch thick, which was thought to be either wood or cardboard or something of that sort. The hole was at a point about the middle of the car farthest inside the building. The track inside the Phoenix Company building was owned and maintained by the Phoenix Company.

The violation of the Federal Employers' Liability Act alleged in the complaint is that the defendant failed to exercise reasonable care to give plaintiff a reasonably safe place to work. This theory is expressed in various ways in support of charges of negligence in the complaint, one of which is that the defendant failed to light the premises in and about where the plaintiff was required to work.

Plaintiff was forty-three years of age at the time of the trial and had been continuously employed as a switchman and later on as a conductor for about twenty-four years. He had been injured about three or four years prior to the accident in question, at which time he suffered several broken ribs and was forced to remain at home for about thirty days. On the night of the accident here in question, the plaintiff fell a distance of about seven feet onto a cement floor. He was taken to Mercy Hospital where he remained for fifty days, being, during that time, under the care of Doctor Claridge. Five doctors testified in the case, three for the plaintiff and two for the defendant. In substance they all stated that plaintiff suffered a fracture of a bone of the left shoulder and a fracture of a bone of the left wrist. However, there was a rather sharp disagreement as to the extent of plaintiff's disability. Doctor Claridge testified that on July 12, 1950, plaintiff was sufficiently recovered to return to work. He testified that x-rays taken on September 12, 1951 showed a piece of bone extending below the glenoid in the left shoulder, which was an abnormal condition. However, in his opinion, this condition only slightly interfered with the use of the shoulder.

Doctor Wells stated that the shoulder would cause weakness and limitation of motion. However, the limitation of the wrist would not be very extensive, in his opinion.

Doctor Miller estimated a limitation of motion of the left shoulder of about 30 to 35% and of the wrist of about 30 to 40%.

Doctor Mitchell made an estimate of disability substantially the same as that of Doctor Miller.

Doctor Scuderi's estimate of plaintiff's disability was slightly less than that made by Doctor Miller.

The Federal Employers' Liability Act provides that a railroad carrier, while engaged in interstate commerce, shall be liable in damages to any employee for injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves or other equipment. 53 Stat. 1404, 45 U.S.C.A. § 51.

In Wetherbee v. Elgin, Joliet & Eastern Ry. Co., 7 Cir., 191 F.2d 302, at page 306, this court said:

"It will be observed that the act imposes liability if the injury to the employee resulted in whole or in part from the carrier\'s negligence. If there is evidence to sustain a jury finding that defendant\'s breach is a `contributing proximate cause\' of the injury, a verdict for the plaintiff will be sustained. Carter v. Atlantic & St. Andrews Bay Railway Co., 338 U.S. 430, 435, 70 S. Ct. 226, 94 L.Ed. 236. But the act does not make a railroad company an absolute insurer against personal injuries suffered by its employees. Wilkerson v. McCarthy, 336 U.S. 53, 61, 69 S. Ct. 413, 93 L.Ed. 497. The questions remain, Was the carrier negligent, and if so was such negligence a proximate cause of plaintiff

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