Knight v. Chicago & N. W. Ry. Co., Gen. No. 46156

CourtUnited States Appellate Court of Illinois
Writing for the CourtROBSON; SCHWARTZ, P. J., and TUOHY
Citation3 Ill.App.2d 502,123 N.E.2d 128
Docket NumberGen. No. 46156
Decision Date19 October 1954
PartiesWilliam KNIGHT, Appellee, v. CHICAGO & NORTH WESTERN RAILWAY COMPANY, a corporation, Appellant.

Page 128

123 N.E.2d 128
3 Ill.App.2d 502
William KNIGHT, Appellee,
v.
CHICAGO & NORTH WESTERN RAILWAY COMPANY, a corporation, Appellant.
Gen. No. 46156.
Appellate Court of Illinois, First District, Second Division.
Oct. 19, 1954.
Rehearing Denied Nov. 16, 1954.

Page 130

Lowell Hastings, Drennan J. Slater, Chicago, for appellant.

James A. Dooley, Chicago, for appellee.

ROBSON, Justice.

Plaintiff filed his action against the Chicago and North Western Railway Company, defendant, to recover damages for personal injuries sustained while working as a freight brakeman. The original action consisted of a single count based upon the Federal Employers' Liability Act, as amended, U.S.C.A., Title 45, §§ 51-60. The complaint was subsequently amended by adding another count based on Section 2 of the Federal Safety Appliance Act, U.S.C.A., Title 45, § 11. A jury returned a verdict for plaintiff in the sum of $25,000. The usual post-trial motions were made and also a motion for remittitur, which were denied, and judgment on the verdict was rendered in favor of the plaintiff from which defendant appeals.

[3 Ill.App.2d 505] The record discloses that at the time plaintiff was injured he was 23 years old and had been employed by defendant as a freight brakeman for about three years. The accident occurred about 9:30 P.M. on May 21, 1950, at Norma, on the outskirts of Des Plaines, Illinois. On that day plaintiff was assigned to work as the rear brakeman with a crew consisting of a conductor, engineer, fireman, head brakeman and himself. The crew that day had gone from Proviso, Illinois, to Janesville, Wisconsin, and was returning to Proviso. It had been raining. At the time of the accident the train consisted of 41 cars. The train reached Norma about 8:30 P.M. and before it could go on to Proviso it was necessary to cut off four cars from the head and set them out on an industry track. At Norma there are two main line tracks and a track known as the live 'wye' running north and south. At grade level the wye track crosses an east and west highway known as Thacker street. The condition of the right of way is narrow and not too even, and is covered with cinders and rocks. It is only about a foot beyond the overhang of the cars, which is about two feet. The engine was just a few feet north of Thacker street, where the trains stopped. Plaintiff, who had been riding in the engine cab, a diesel, got down, pulled the pin to cut off the four head cars, gave the necessary signals to get the engine and four cars on the industry track, cut off the cars, signaled the engine on to the south, then backed it on to the remaining 37 cars. While the cars were being set out, the head brakeman walked to a telephone located on the west side of the wye track and phoned a tower located at Deval to get clearance for the train to move on to the southbound main line track and then on to

Page 131

Proviso. Shortly after the engine had been coupled back on the train, the head brakeman gave a signal with his lantern to indicate that the train was to pull on south. Plaintiff boarded the rear of the second diesel unit, walked [3 Ill.App.2d 506] through it and the first unit to the engine cab and rode south to where the head brakeman was then standing near the telephone. Plaintiff alighted near where the brakeman was standing and asked if it would be necessary to reline the switches after the train had reached the southbound main line. He was told it was not necessary.

The head brakeman boarded the engine to ride in the cab and plaintiff started walking north on the west side of the wye track to board the caboose when it came by. He had intended to go to Thacker street where there was a level place to board. He had gone about 200 feet when he saw the caboose marker lights nearing Thacker street. He then realized he would not be able to make it back to the crossing and decided to board the train from the right of way. He noticed that it was picking up speed and gave an easy signal. He remembered that the signal could not be seen by the engineer because his vision was cut off by a northbound train waiting just at the south of the cross-over switch. Where he was standing the right of way was narrow. He turned and went back about 50 feet to get to a point where the right of way was wider and where the boarding would be easier. As the caboose approached him it was traveling about eight or ten miles an hour. He said the customary speed until the crew had all boarded was four to five miles an hour. He put his right hand on the grabiron and left foot on the center part of the bottom step of the caboose. His lantern and packing iron were in his left hand. This was the customary and usual means of boarding a caboose. This was corroborated by the conductor of the train. As he swung on, his left foot slid back to the rear end of the wooden step causing him to lose his grip and come down on the right of way with his right knee. He did not know the cause of his slipping. He admitted that the cause might have been cinders on the soles of his shoes.

[3 Ill.App.2d 507] The conductor, who was looking out of the caboose window, saw plaintiff fall and immediately set the brakes and brought the train to a stop within a few hundred feet of where plaintiff was lying. He helped plaintiff and they boarded the caboose. It was discovered his right knee was skinned and bleeding and first aid was administered. When they arrived at the Proviso yard, plaintiff and three members of the crew inspected the step. It is undisputed that it was wet. Plaintiff testified that he noticed it was smooth and quite worn in the center. The conductor said it was smooth, the paint was worn off, slightly rounded, but not enough 'to bad order the step.' He had difficulty with the same step later. The other two testified it was worn and smooth.

The first question we must consider pertains to Count II which was filed as an amendment to the complaint, charging defendant with failure to keep the steps of the caboose safe and secure as required by the Federal Safety Appliance Act. The caboose in question had box steps. Defendant contends that Congress in enacting the Safety Act of 1910, 45 U.S.C.A. §§ 11-16, did not delegate to the Interstate Commerce Commission the power to regulate caboose platform or box steps, only sill steps. Section 2 of that Act, ch. 160, sec. 2, 36 Stat. 298, makes it unlawful for any common carrier to haul or use any car not equipped with 'secure sill steps' and efficient hand brakes, and in certain instances secure ladders, running boards and handholds. The Commission on March 13, 1911, following the passage of the Act, adopted an order entitled, 'In the matter of designating the number, dimensions, location and manner of application of certain safety appliances.' (Roberts Federal Liabilities of Carriers, 2nd Edition, Vol. 2, pp. 2010-2031). In it under the heading 'Caboose cars with Platforms' appears the subheading 'Caboose Platform Steps' and under that heading is the following:[3 Ill.App.2d 508] 'Safe and suitable box steps leading to caboose

Page 132

platforms shall be provided at each corner of the caboose. Lower tread of step shall be not more than 24 inches above top of rail.' It is defendant's contention that this portion of the order was beyond the scope of the Commission's authority and, therefore, void.

When Congress passed the Federal Safety Appliance Act over 44 years ago its primary object was to protect employees and the public from injuries because of defective appliances upon locomotives and cars used on the highways of interstate commerce. Swinson v. Chicago, St. P., M. & O. Ry., 294 U.S. 529, 55 S.Ct. 517, 79 L.Ed. 1041; Tipton v. Atchison Ry. Co., 298 U.S. 141, 56 S.Ct. 715, 80 L.Ed. 1091. It could not and did not have in mind every specific evil that...

To continue reading

Request your trial
13 practice notes
  • Schaffner v. Chicago and North Western Transp. Co., No. 86-1200
    • United States
    • United States Appellate Court of Illinois
    • September 23, 1987
    ...not entitled to rely solely on its prior motion in limine to preserve its objections. See Knight v. Chicago & N.W. RR. Co. (1954), 3 Ill.App.2d 502, 123 N.E.2d Moreover, it is not clear that the evidence of post-occurrence changes prejudiced the railroad to such an extent that reversal ......
  • Missouri Pac. R. Co. v. Ramirez, No. 3651
    • United States
    • Court of Appeals of Texas. Court of Civil Appeals of Texas
    • June 4, 1959
    ...S. F. R. Co., Mo.App., 262 S.W. 440; Davis v. Reynolds, 258 U.S. 627, 42 S.Ct. 383, 66 L.Ed. 798; Knight v. Chicago & N. W. Ry. Co., 3 Ill.App.2d 502, 123 N.E.2d 128. The defendant filed no motion in the Trial Court to disregard the finding. In the absence of motion and reasonable notic......
  • Thomas v. Norfolk and Western Ry. Co., No. 5-93-0510
    • United States
    • United States Appellate Court of Illinois
    • August 25, 1994
    ...of employees and others by requiring the use of safety equipment." (See also Knight v. Chicago & North Western Ry. Co. (1954), 3 Ill.App.2d 502, 508, 123 N.E.2d 128, 132.) Over time, an extensive collection of safety regulations has been built up under the Safety Appliance Act. (Se......
  • Moss v. Central of Georgia R. Co., No. 50895
    • United States
    • United States Court of Appeals (Georgia)
    • September 3, 1975
    ...Md. 568, 202 A.2d 348, reversed on other grounds, 379 U.S. 671, 85 S.Ct. 636, 13 L.Ed.2d 594; Knight v. Chicago & N.W. Page 596 Ry., 3 Ill.App.2d 502, 123 N.Ed.2d 128. Thus, in deciding the question presented by this appeal, we must look to the prevailing federal case law. Accordingly, ......
  • Request a trial to view additional results
13 cases
  • Schaffner v. Chicago and North Western Transp. Co., No. 86-1200
    • United States
    • United States Appellate Court of Illinois
    • September 23, 1987
    ...not entitled to rely solely on its prior motion in limine to preserve its objections. See Knight v. Chicago & N.W. RR. Co. (1954), 3 Ill.App.2d 502, 123 N.E.2d Moreover, it is not clear that the evidence of post-occurrence changes prejudiced the railroad to such an extent that reversal ......
  • Missouri Pac. R. Co. v. Ramirez, No. 3651
    • United States
    • Court of Appeals of Texas. Court of Civil Appeals of Texas
    • June 4, 1959
    ...S. F. R. Co., Mo.App., 262 S.W. 440; Davis v. Reynolds, 258 U.S. 627, 42 S.Ct. 383, 66 L.Ed. 798; Knight v. Chicago & N. W. Ry. Co., 3 Ill.App.2d 502, 123 N.E.2d 128. The defendant filed no motion in the Trial Court to disregard the finding. In the absence of motion and reasonable notic......
  • Thomas v. Norfolk and Western Ry. Co., No. 5-93-0510
    • United States
    • United States Appellate Court of Illinois
    • August 25, 1994
    ...of employees and others by requiring the use of safety equipment." (See also Knight v. Chicago & North Western Ry. Co. (1954), 3 Ill.App.2d 502, 508, 123 N.E.2d 128, 132.) Over time, an extensive collection of safety regulations has been built up under the Safety Appliance Act. (Se......
  • Moss v. Central of Georgia R. Co., No. 50895
    • United States
    • United States Court of Appeals (Georgia)
    • September 3, 1975
    ...Md. 568, 202 A.2d 348, reversed on other grounds, 379 U.S. 671, 85 S.Ct. 636, 13 L.Ed.2d 594; Knight v. Chicago & N.W. Page 596 Ry., 3 Ill.App.2d 502, 123 N.Ed.2d 128. Thus, in deciding the question presented by this appeal, we must look to the prevailing federal case law. Accordingly, ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT