Miller v. Elgin, Joliet & Eastern Ry. Co.

• Decision Date: 02 November 1949
• Docket Number: No. 9831.,9831.
• Parties: MILLER v. ELGIN, JOLIET & EASTERN RY. CO.
• Court: U.S. Court of Appeals — Seventh Circuit

177 F.2d 224 (1949)

MILLER v. ELGIN, JOLIET & EASTERN RY. CO.

No. 9831.

United States Court of Appeals Seventh Circuit.

October 7, 1949.

Rehearing Denied November 2, 1949.

Harlan L. Hackbert, Chicago, Ill., Glenn D. Peters, Hammond, Indiana (Peters & Highland, Hammond, Indiana, Knapp, Cushing, Hershberger & Stevenson, Chicago, Illinois, of counsel), for appellant.

Daniel D. Lynch, Hammond, Indiana, T. Cleve Stenhouse, Crown Point, Indiana, for appellee.

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

DUFFY, Circuit Judge.

This is an action under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., to recover damages for the death of plaintiff's husband, Joseph Miller. The case was tried to a jury which returned a verdict in favor of plaintiff.

Joseph Miller was employed by the defendant railway company as operator of an interlocking tower at Griffith, Indiana. This tower controlled the movements of all trains through the area in which the tracks of the defendant and four other railroads intersected by means of electrically operated signals, switches, cross-overs and derails, and was known as the Griffith Interlocking Plant. The tower was a two-story brick structure, on the ground floor of which was located a room containing a hot water heating system and another room containing the relays of the electrical interlocking system. Upon a second level there was a room housing the batteries which supplied the electrical current for the system. The control room on the second floor was reached by an outside metal stairway. In this room was the interlocking machine which, by manually operated levers, controlled the switches and derails as well as flash signals at highway crossings.

The course of the electrical current was from the batteries through a conduit to a master switch in the control room, thence to the interlocking machine, thence through numerous wires in a metal chute to the relay machines, and thence to the various units of the interlocking system.

Miller's tour of duty was from 4:00 P. M. to midnight. On January 7, 1947, he arrived at the tower shortly before 4:00 P. M. and was in apparent good health. About 7:50 P.M. he smelled smoke in the tower and telephoned that information to David Letts, the signal maintainer, who was his immediate superior. At Letts' direction Miller looked at the wiring in the relay room and then reported to Letts that the wiring was ablaze. Letts immediately drove to the tower from his home one and one-half blocks distant, and Miller meanwhile called the fire department. When Letts arrived Miller was standing near the tower at the foot of the outside stairway. Letts went into the tower and found the fire was in a metal chute, which contained approximately 400 wires leading from the interlocking machine to the relays. The rubber and fabric covering on the wires was ablaze. Letts then went up the outside steps and entered the control room. He made two attempts to reach the master switch which was on the opposite side of the room from the door, but he was unable to do so because of the dense smoke and fumes. His purpose was to pull the manually operated switch in order to cut off power to the interlocking control machine. Letts told Miller he was unable to reach the switch, but that he intended to cut the wires at the batteries and, going down the outside steps, he obtained pliers and then went into the battery room. Deterred by the smoke and fumes from the burning insulation in the relay room, Letts only succeeded in cutting some of the wires, but he told Miller he intended to go back and cut the remainder.

When the fire department arrived firemen tore the cover from the metal chute and used chemicals and water in extinguishing the fire. They also put a ladder to the center window of the second floor, intending to break the glass in order to permit the smoke and fumes to escape from the room and to provide ventilation. At Miller's suggestion the ladder was moved over several feet to the adjoining window, which was immediately adjacent to the control board on which the main switch, which Letts had tried to reach, was mounted. Miller climbed the ladder, broke the window, and leaned into the room, remaining in that position for possibly one to two minutes. Shortly after Miller came down the ladder, he complained of pain in his chest and he was nauseated. Miller's wife, who had come to the tower, took him in an automobile to a doctor's office, but Miller died about two minutes after reaching the office and before he could be examined by the doctor. Medical testimony established that Miller died from a thrombosis in the artery to the lower lung and opinion evidence was given that his exposure to the smoke and fumes had a causal relationship to his death.

Letts testified that his first thought was to get the power disconnected, and that was the reason he attempted to reach the main switch. Letts stated that cutting off the current would prevent the possibility of false indications on the lines out to the various signals, and that if such a false indication had occurred a train might have been wrecked as a result. Letts also testified, "I wanted to get that switch open for the protection of the machine, with the wires burning as they were, short circuit and that, which creates a hot fire...