Lilly v. Grand Trunk Western R. Co.

• Decision Date: 10 December 1941
• Docket Number: Gen. No. 40882.
• Citation: 37 N.E.2d 888,312 Ill.App. 73
• Parties: LILLY v. GRAND TRUNK WESTERN R. CO.
• Court: United States Appellate Court of Illinois

312 Ill.App. 73

37 N.E.2d 888

LILLY

v.GRAND TRUNK WESTERN R. CO.

Gen. No. 40882.

Appellate Court of Illinois, First District, Second Division.

Nov. 28, 1941.

Rehearing Denied Dec. 10, 1941.

Appeal from Superior Court, Cook County; W. W. Damron, Special Judge.

Action by Norvel H. Lilly against the Grand Trunk Western Railroad Company to recover damages for injuries under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., and the Federal Safety Appliance Act, 45 U.S.C.A. § 1 et seq. From a judgment for plaintiff, defendant appeals.

Reversed and remanded, with directions. Winston, Strawn & Shaw, of Chicago (Harold A. Smith and Frank B. Gilmer, both of Chicago, of counsel), for appellant.

Edward B. Henslee and Samuel Cohen, both of Chicago, for appellee.

FRIEND, Justice.

Norvel H. Lilly, employed as a brakeman by the Grand Trunk Western Railroad Company, fell from the deck of a locomotive tender while engaged in the course of his duties and was severely injured. He brought suit for damages against the company under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., and the Federal Safety Appliance Act, 45 U.S.C.A. § 1 et seq. Trial by jury resulted in a general verdict in his favor for $32,500. The court overruled defendant's motion for a judgment non obstante veredicto and entered judgment on the verdict. Defendant has prosecuted this appeal.

The accident occurred in the railroad yards of the defendant at Ferndale, Michigan, on the morning of February 6, 1937. The crew had performed various switching operations and made up a train which was set out on a lead track, after which the engine was disconnected and moved over to an adjoining track to take on water. It was part of Lilly's duty as brakeman to fill the tender with water. The engine having stopped at the water tank, Lilly climbed up the ladder on the rear of the tender, and as he reached the top and stepped around the manhole he found that ice had formed on top of the tender. The operation of taking water required him to pull the waterspout over the manhole of the tender by means of a long pole with a hook attached thereto, which was available for that purpose. According to his testimony he had to kick the hook out of the ice, where it had frozen, and after he had knocked all the ice off the hook he braced himself on the ice where he was standing, with his feet astride, reached for the waterspout and started to pull it into positionover the manhole. The hook slipped when the waterspout had come partway round and simultaneously his feet slipped on the ice, causing him to lose his balance and fall over the side of the tender to the ground.

Lilly's complaint charged that the railroad company and plaintiff were working in interstate commerce, and alleged five separate acts of negligence forming the basis of his suit. Paragraph 4a charges that while plaintiff was on the tender of the locomotive taking on water, defendant supplied him with a rod and hook for the purpose of pulling the waterspout around over the deck of the tender, which was “dangerous, defective, turned and twisted and covered with ice.” Paragraph 4b charges that the waterspout was defective and dangerous because it was bent out of shape and position. Both of these paragraphs were dismissed on defendant's motion at the close of plaintiff's case, and are therefore not the subject of controversy. Paragraph 4c charged in general terms that there was ice on the deck of the tender which the defendant carelessly, negligently, wrongfully and unlawfully permitted to be there. Paragraph 4d charged that there was a violation of the Safety Appliance Act, in that the tender leaked and the top thereof was covered with ice and was slippery. Paragraph 4e, which was added as an amendment to the complaint, charged that the defendant “operated the locomotive and tender * * * at the point where the water is supplied to and poured into the locomotive, to be cracked, worn and split, so as to occasion and permit the leaking of water from and through this crack, hole and aperture and to flood, seep and cover the top of the tender” where plaintiff worked. Defendant's answer admitted that plaintiff was an employee, but denied that the parties were working in interstate commerce, and also denied the allegations of negligence charged in the complaint.

Under this state of the pleadings there were only two questions before the jury: (1) the allegation that there was a violation of the Safety Appliance Act, in that the tender leaked and was covered with ice, and slippery; and (2) the general charge of negligence in permitting ice to form and remain on the deck of the tender.

The federal statute upon which plaintiff relied provides that “it shall be unlawful for any carrier to use or permit to be used on its line any locomotive unless said locomotive, its boiler, tender, and all parts and appurtenances thereof are in proper condition and safe to operate in the service to which the same are put, that the same may be employed in the active service of such carrier without unnecessary peril to life or limb * * *.” 45 U.S.C.A. p. 79, § 23.

In support of this theory of recovery, Lilly testified in his own behalf that he had been on top of this tender the day before taking on water at Pontiac, Michigan; that he had noticed water on the tender that day, “coming from some place on this engine;” and when asked to describe specifically what he saw, he testified: “Well, in front of the manhole where the--that is, the hole that the spout is put down into to take the water, right at the seam on top of the tender where the two join together, there was water coming out of there, at the front of this manhole, right at the seam. It was coming out in a stream, not a big stream, just a small stream like spurting out and spreading over the tender. The manhole is about fifteen or eighteen inches wide and about ten to twelve inches high, about three feet long. The stream of water was coming out from the seam right in front of the manhole, right where the manhole and the top of the tender is riveted together; it was right at the seam, where the two join. It was a very small stream, I will say about like a small nail.”

To rebut plaintiff's testimony defendant produced numerous witnesses consisting of the crew and other trainmen who testified that they had inspected the roof of this tender and found no crack or leak in the deck thereof. Among those who so testified were Francis W. Smith, the foreman who took water on the tender both the day before and later in the day after the accident; Percy A. Findley, a brakeman in the crew prior to the arrival of Lilly; A. E. Granger, the engineer; W. D. Darling, foreman of machinery; P. K. Holton, who filled the tank with water both before and after the accident; Harold Norton and James Russell, inspectors; and several others.

Upon this phase of the case the following interrogatory was submitted to the jury at the request of defendant: “Was there, at the time of the accident in question, a leak in or near the manhole collar on the tender in question?” The jury answered this interrogatory “No,” and thus eliminated from the case the claim of negligence as to the leak or crack in the tender.

Plaintiff's counsel argue that the examination of the tender by defendant's witnesses was superficial, and that they could not, by merely visualizing it, accurately determine whether there was a leak in the collar of the manhole where it was riveted to the deck of the tender. It seems to us, however, that this was purely a question of fact which was submitted to the jury, and it answered the special interrogatory adversely to plaintiff's contention. Moreover, plaintiff had testified that the leak was discernible to the naked eye, and that he could see the water streaming out at a point where the collar of the manhole was riveted to the deck of the tender. Defendant's witnesses undoubtedly had the same means of determining whether any leak existed there.

It is also urged that the special interrogatory propounded to the jury was not broad enough to cover the allegations of the complaint, since plaintiff had alleged that “the tender leaked there,” and that defendant had operated the locomotive “with the tender * * * at the part where the water is supplied to and poured into the locomotive, cracked, worn and split, so as to occasion and permit the leaking of water from and through this crack, hole and aperture and to flood, seep and cover the top of the tender.” While it is true that these allegations are somewhat broader than the language of the special interrogatory, there is no evidence whatsoever to support them other than the testimony of Lilly which has heretofore been set forth in full, and which is confined exclusively to a “stream of water * * * coming out from the seam right in front of the manhole, right where the manhole and the top of the tender is riveted together * * * where the two join * * * a very small stream * * * about like a small nail.” This evidence justified the court in propounding the interrogatory of which plaintiff's counsel complain, fixing the leak “in or near the manhole collar on the tender in question.” Any broader interrogatory would not have been justified by plaintiff's own testimony.

Plaintiff's counsel evidently appreciated the import of the special interrogatory, because in his closing...