Margevich v. Chicago & N. W. Ry. Co.

• Decision Date: 30 December 1953
• Docket Number: Gen. No. 46055
• Citation: 116 N.E.2d 914,1 Ill.App.2d 162
• Parties: MARGEVICH v. CHICAGO & N. W. RY. CO.
• Court: United States Appellate Court of Illinois

Page 914

116 N.E.2d 914

1 Ill.App.2d 162

MARGEVICH v. CHICAGO & N. W. RY. CO.

Gen. No. 46055.

Appellate Court of Illinois, First District, Third Division.

Dec. 30, 1953.

Rehearing Denied Jan. 20, 1954.

Lowell Hastings, Drennan J. Slater, Gerald M. Chapman, Chicago, for appellant.

James A. Dooley, Chicago, for appellee.

KILEY, Justice.

This is a suit under the Federal Employers' Liability Act, § 1 et seq., 45 U.S.C.A. § 51 et seq., by a railroad repairman. Verdict was for plaintiff in the amount of $37,500. Plaintiff remitted $7,500, and judgment was entered for $30,000. Defendant has appealed.

The accident occurred on September 18, 1948. Plaintiff was then sixty-six years old and had been a car repairman for defendant for twenty-eight years. When injured, he was engaged in repairing a grab iron on a box car. He fell from a scaffold.

The scaffold consisted of a wooden horse about ten feet high and several feet wide. The top platform was ten or twelve inches wide. There were five rungs at several levels below the platform. The rungs were about 7/8th of an inch thick. The scaffold or horse was placed near the south end of a steel end box car so that the bent grab iron on the car could be repaired. On each side of the track where the car was placed were concrete walks. Since the grab iron under repair was on the west side of the car end, the scaffold was placed close to the concrete walk west of the rail. The grab iron under repair was the top-most fixed to the car end. It was about 18 inches wide and about 12 feet above the ground. It was bent in toward the car.

The repair work was the joint operation of a fellow workman, using an acetylene torch to soften the grab iron, and plaintiff, using a crowbar to straighten it. Plaintiff's companion worked while seated on the top of the scaffold. Plaintiff stood on the second rung on the south side of the scaffold. Consequently the scaffold was between him and the car. After the grab iron was heated, plaintiff was told by his co-worker to 'pull.' He placed the crowbar under the grab iron and attempted to pull the bar upward. It did not bend. He moved the bar and pulled upward again. The bar slipped and plaintiff fell to the concrete walk and was injured.

The issues raised here are whether there was any evidence of negligence sufficient to submit the case to the jury; whether the court erred in instructing the jury and in ruling on admission of evidence; and whether the verdict is excessive.

Plaintiff had the burden of proving that his injury was the result in whole or in part of defendant's negligence or that of its employees. 45 U.S.C.A. § 51; Payne v. Baltimore & Ohio R. Co., 351 Ill.App. 186, 114 N.E.2d 323; Kloetzer v. Louisville & N. R. Co., 341 Ill.App. 478, 95 N.E.2d 502; Wilkerson v. McCarthy, 336 U.S. 53, 69 S.Ct. 413, 93 L.Ed. 497.

Defendant was not required to furnish the latest, best or most perfect appliances. The general rule imposes the obligation to furnish reasonably safe equipment suitable for the purpose of the work, and where occupations are attended with great and unusual danger, the obligation is to use all appliances readily attainable for the prevention of accidents. Perryman v. Missouri Pac. R. Co., 326 Mo. 176, 31 S.W.2d 4. The rule applied under the F. E. L. A. is that the employer's duty becomes more imperative as the risk increases. Bailey v. Central Vermont Ry., 319 U.S. 350, 63 S.Ct. 1062, 87 L.Ed. 1444; Cheffey v. Pennsylvania R. Co., D.C., 79 F.Supp. 252. The testimony of experts with respect to safer methods used on other railroads is an evidentiary basis upon which the jury can decide whether the equipment and method of the railroad was reasonably safe, or whether it should have used safer equipment and methods. Boston & M. R. R. v. Meech, 1 Cir., 156 F.2d 109; Palum v. Lehigh Valley R. Co., 2 Cir., 165 F.2d 3.

Defendant's contention that there is no evidence of negligence on its part is to be tested by the well-known rule applicable in determining whether a jury question was presented by the evidence. Wilkerson v. McCarthy, 336 U.S. 53, 69 S.Ct. 413, 93 L.Ed. 497; Walaite v. Chicago, R. I. & P. Ry. Co., 376 Ill. 59, 33 N.E.2d 119. We shall relate only the testimony favorable to the plaintiff and draw the legal inferences most strongly in his favor: Plaintiff's co-worker was in charge of the work. He made the decision when the grab iron has been heated enough so as to bend easily. After heating the grab iron, he told plaintiff to straighten it. Plaintiff was standing on the 7/8 inch rung on the outside of the scaffold. When he 'pulled up,' both of his arms were above his head and his elbows were level with his shoulders. In this operation there is nothing to hold on to. Defendant has weekly safety meetings at which safety in repair operations was discussed and explained. Plaintiff had been instructed by his foreman to do the work the way in which he was doing it.

The foregoing evidence tends to prove negligence in defendant's repair method and in directing plaintiff's work.

There is further favorable evidence for plaintiff: The torch which plaintiff's coworker was using had close to a three foot flame capacity. Usually safety paper, asbestos or tin is used to protect the paint during the grab iron straightening process. A good welder can heat a grab iron and not disturb the paint. If paint is burned it blisters. No safety shield was used during the instant work and the paint was blistered.

The foregoing is further evidence of negligence on the part of plaintiff's coworker, since an inference is justified that the paint had been softened and could cause the crowbar to slip.

There is further favorable evidence for plaintiff: Any work which is overhead requires good footing. Other repairmen on other roads did this type of work on ladders which enabled the repairman to stand with one foot on one step several inches wide, and one on another, or to sit while working so there is no worry about footing. Neither the 'Great Western' nor the 'Milwaukee' Railroads use horses such as the one defendant used when the accident occurred. The 'Milwaukee' uses platform ladders with ample foot space. If the 'Great Western' uses horses, it uses them cross-wise and lays twelve inch planks so as to provide about twenty inches of standing space.

The foregoing testimony tends to prove defendant did not furnish plaintiff reasonably safe equipment for the work purpose.

We think, therefore, that the question of defendant's negligence was for the jury.

Defendant, to sustain its contention that the equipment was reasonably safe, argues that plaintiff had used this same kind of scaffold for twenty-eight years and had never seen an accident result therefrom. The question is not what equipment defendant furnished, and plaintiff used, customarily, but whether there was evidence that the equipment and method were not reasonably safe. Chicago, R. I. & Pac. Ry. Co. v. Daugaard, 118 Ill.App. 67; Midland Valley R. Co. v. Bell, 8 Cir., 242 F. 803; Texas & Pacific Ry. Co. v. Behymer, 189 U.S. 468, 23 S.Ct. 622, 47 L.Ed. 905. This conclusion disposes of the argument with respect to the long use, without accident, of the method employed in straightening the grab iron.

Defendant argues also that it is free of any charge of negligence because it was entitled to assume that defendant would use the equipment in a safe manner. The fact that plaintiff may have stood with greater safety between the car and scaffold 'would not completely immunize' defendant from liability if the injury was in part due to its negligence, for plaintiff's contributory negligence would merely diminish damages, not bar recovery. Wilkerson v. McCarthy, 336 U.S. 53, 69 S.Ct. 413, 93 L.Ed. 497; Virginian Ry. Co. v. Viars, 4 Cir., 193 F.2d 547. Moreover there is evidence that plaintiff had been instructed to stand where he stood. Also, reasonable men might differ on the question whether standing between the car and the scaffold on the 7/8 inch cross-board, using both hands above the head, would have been an appreciably safer position.

In view of our conclusion with respect to what the evidence favorable to plaintiff tended to show, it follows that we see no merit in defendant's complaint with respect to plaintiff's 'summarizing instruction.' This instruction summarized the issues. It is not vulnerable to the sole contention made, that the charges of negligence had no foundation in the evidence. It is true that the third charge summarized refers to tools, but it also refers to equipment.

The defendant complains of prejudicial error in the trial court's refusal to give its tendered instruction No. 22. It was as follows:

'You are instructed that under the present provisions of the Internal Revenue Code of the United States any amount paid plaintiff by defendant under a verdict of this jury is exempt from the payment of...