Mitchell v. Louisville & N.R. Co.

• Citation: 310 Ill.App. 563,35 N.E.2d 81
• Decision Date: 31 May 1941
• Docket Number: Ag. No. 13.
• Court: United States Appellate Court of Illinois
• Parties: MITCHELL v. LOUISVILLE & N. R. CO.

310 Ill.App. 563

35 N.E.2d 81

MITCHELL

v.LOUISVILLE & N. R. CO.

Ag. No. 13.

Appellate Court of Illinois, Fourth District.

May 31, 1941.

Appeal from City Court of East St. Louis; William F. Borders, Judge.

Action by Jesse W. Mitchell against the Louisville & Nashville Railroad Company for injuries sustained while employed as a switchman by defendant railroad. A judgment for plaintiff was reversed by the Appellate Court, 305 Ill.App. 635, 27 N.E.2d 861, and on appeal by plaintiff, the Supreme Court, 375 Ill. 545, 31 N.E.2d 965, reversed the judgment of the Appellate Court and remanded the cause with directions to consider the weight of the evidence and to consider any other errors relied on for a reversal.

Judgment affirmed in conformity with the mandate of the Supreme Court, 375 Ill. 545, 31 N.E.2d 965. Farmer, Klingel & Baltz, of Belleville, for appellant.

Jos. B. McGlynn, of East St. Louis, (John J. Hoban, of East St. Louis, of counsel), for appellee.

STONE, Presiding Justice.

Appellee (hereinafter designated as plaintiff), a resident of Covington, Kentucky, while employed as a switchman by Appellant (hereinafter designated as defendant), in the Decoursey Yards, near Covington, Kentucky, was injured on the third day of July, 1938, by the alleged negligence of defendant, in being knocked from the top of a ladder on the side of a freight car that he was then engaged in switching, thrown to the ground and injured. He brought suit in the City Court of East St. Louis in St. Clair County, under the provision of the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., conferring concurrent jurisdiction upon State and Federal Courts and allowing the plaintiff to lay the venue of such action in the district where the defendant shall be doing business at the time of the commencement of the action.

There was a verdict for $32,400; judgment for that amount in the trial court from which judgment defendant prosecuted an appeal to this court. In Jesse W. Mitchell, Appellee, v. Louisville and Nashville Railroad Company, Appellant, 305 Ill.App. 635, 27 N.E.2d 861, the judgment of the lower court was reversed. Appeal was taken by plaintiff to the Supreme Court, 375 Ill. 545, 31 N.E.2d 965, and by the Supreme Court reversed and remanded to this court, with directions to consider the weight of the evidence and to consider any other errors relied upon for a reversal and comes now before this court for reconsideration. The suit was tried in the trial court upon an amended complaint, which charged that plaintiff was injured by the alleged negligence of the defendant company, while it was engaged in interstate commerce and the answer of the defendant thereto, denying that the plaintiff and defendant were engaged in interstate commerce at the time of plaintiff's injury.

The accident occurred around 2:50 on the morning of July 3rd, 1938, in the Decoursey Yards of the defendant, near Covington, Kentucky. These yards were known as classification yards, where freight trains were broken up and classified preparatory to being made up into other trains. The general direction of the yards is from north to south. The yards are made up of a number of yards designated as Yard “A” “B” “D” or 26 and others. Between Yards “A” and “B” are what are called the main hump track and lower hump track, which are in the main parallel, but of inequal distances apart. In Yard “B”, starting from the west side, the switch tracks are numbered from one to twelve; number twelve being an extension of the main hump track and being also known as the lead track. These hump tracks are gravity tracks to which cars are hauled from Yard “A” by an engine; the cars are run into various tracks in Yard “B” by force of gravity, south of the crest of the hump.

The crews working in this yard are called hump crews, and consist of an engineer, fireman, switch tenders, car riders and an employee who follows the engine and directs the movements of cars being placed on the various tracks. The movement of the cut of cars involved here was directed by the plaintiff, who was the “follower of the engine” of this crew. It was his duty to signal the engineer and the duty of the engineer to obey such signals. Early on the morning in question one car had been picked up by the engine on track number one, and seven or eight cars on tracks six or seven. There seems to be no controversy that as they came to the lower southbound hump, plaintiff gave a stop signal and the engineer stopped. This signal was given by lantern. The plaintiff then gave a come-ahead signal, which seems to have been for the purpose of taking up the slack that had run out in the train; a stop signal was then given by the plaintiff in order to effect the cut of the seven or eight cars, taken from tracks six or seven. The plaintiff then testified that he gave the engineer a back-up signal, and that the engineer, instead, moved the engine forward, causing the cars to run away. Plaintiff then ran after the cut of cars alleged to be runaways, boarded one of them and started climbing the ladder on the side of the car and had about reached the top of the car, when the cut of cars on which he was riding, collided with another cut of cars standing stationary on the south end of the tracks. Plaintiff was thrown over against the crossover rail, and sustained a compression fracture of the first lumbar vertebra.

It is alleged as error that the trial court erred in overruling defendant's challenge to the array of jurors. A careful examination of the record fails to disclose any reversible error in that regard. Mere irregularities in failing to comply strictly with statutory provisions if not prejudicial will not invalidate the list of jurors. A verdict will not be set aside because a challenge to the array is overruled unless the record shows that the substantial rights of the defendant were thereby impaired. People v. Colegrove, 342 Ill. 430, loc. cit. 436, 174 N.E. 536;People v. Coffman, 338 Ill. 367, loc. cit. 371, 170 N.E. 227;Hartshorn v. Illinois Valley Ry. Co., 216 Ill. 392, loc. cit. 405, 75 N.E. 122;Healy v. People, 177 Ill. 306, 52 N.E. 426;Torpedo Top Co. v. Royal Ins. Co., 162 Ill.App. 338.

Defendant contends that there is no liability on its part, because of the doctrine of assumed risk, and contributory negligence on the part of the plaintiff, arguing that he was in a place of safety and voluntarily and unnecessarily went to a place of peril. Plaintiff earnestly contends that the doctrine of imminent peril applies; that he was trying to protect fellow employees alleged to have been down on 26 and the company's property from injury, and counsel say that if that theory does not apply, then plaintiff has no cause of action. The question of contributory negligence on the part of the plaintiff is a question of fact for the jury. Devine v. Pfaelzer, 277 Ill. 255, 115 N.E. 126, L.R.A.1917C, 1080, affirming 195 Ill.App. 221;Leiter v. Kinnare, 68 Ill.App. 558;Pienta v. Chicago City R. Co., 284 Ill. 246, 120 N.E. 1;Illinois Central R. Co. v. Anderson, 184 Ill. 294, 56 N.E. 331.

The question of assumption of risk by the employee is also a question of fact for the jury. Chicago Screw Co. v. Weiss, 203 Ill. 536, 68 N.E. 54;Shoukair v. Sargent Co., 235 Ill. 509, 85 N.E. 621;Chicago, L. S. & E. R. Co. v. Cukravony, 132 Ill.App. 367;Davenport v. Ziegler District Collieries Co., 179 Ill.App. 552. So, also, is the question of whether plaintiff's conduct, in time of alleged imminent peril constituted contributory negligence. Galena & C. U. R. Co. v. Yarwood, 17 Ill. 509, 65 Am.Dec. 682;Chicago & A. R. Co. v. O'Leary, 126 Ill.App. 311; Chicago Terminal Transfer R. Co. v. Kotoski, 101 Ill.App. 300, affirmed 199 Ill. 383, 65 N.E. 350.

It is argued by the defendant, that the evidence was insufficient to sustain plaintiff's contention that he was engaged in interstate commerce at the time he was injured, and that the court erred in denying defendant's motion for directed verdict at the close of the testimony in behalf of plaintiff and again at the close of all of the testimony in the case.

An employee of a railroad company, at the time of an injury sustained by him, is engaged in interstate commerce, within the meaning of the Federal Employers' Liability Act, under which the instant suit was brought, if he is engaged in interstate transportation or in some work so closely related to it, as to be practically a part of it. Shanks v. Delaware, Lackawanna & Western Railroad Co., 239 U.S. 556, 36 S.Ct. 188, 60 L.Ed. 436, L.R.A.1916C, 797. If cars used in switching have been assigned to interstate commerce, or if the purpose of the switching is to facilitate the movement of interstate cars, the switchman is engaged in interstate commerce. Kiefer v. Elgin, Joliet & Eastern Railway Co., 351 Ill. 634, 184 N.E. 870;Louisville & Nashville Railroad Co. v. Parker, 242 U.S. 13, 37 S.Ct. 4, 61 L.Ed. 119;Southern Railway Co. v. Puckett, 244 U.S. 571, 37 S.Ct. 703, 61 L.Ed. 1321, Ann.Cas.1918B, 69.

It is sufficient to bring the activity within the Federal act, if one or more of the cars being moved has been designated for interstate shipment, irrespective of whether a specific train is being prepared at the time. Chicago, Rock Island & Pacific Railway Co. v. Benson, 352 Ill. 195, 185 N.E. 244;Devine v. Chicago, Rock Island and Pacific Railway Co., 266 Ill. 248, 107 N.E. 595, Ann.Cas.1916B, 481; Louisville & Nashville Railway Co. v. Parker, supra; Grand Trunk Western Railroad Co. v. Boylen, 7 Cir., 81 F.2d 91.

The admission of certain evidence, which would be determinative of whether plaintiff was engaged in interstate commerce at the time of the accident, is alleged as error. Before the cause came on for hearing, plaintiff demanded the production of certain records and documents which would show the cars involved in the movement in the yard, and with which plaintiff was at work, at the time of the injury. Defendant answered that...