Mitchell v. Louisville & N.R. Co.

• Decision Date: 14 February 1941
• Docket Number: No. 25889.,25889.
• Citation: 375 Ill. 545,31 N.E.2d 965
• Court: Illinois Supreme Court
• Parties: MITCHELL v. LOUISVILLE & N. R. CO.

375 Ill. 545

31 N.E.2d 965

MITCHELL

v.LOUISVILLE & N. R. CO.

No. 25889.

Supreme Court of Illinois.

Feb. 14, 1941.

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 plaintiff appeals.

Reversed and remanded, with directions.Appeal from Appellate Court, Fourth District, on Appeal from the City Court of East St. Louis; William F. Borders, Judge.

Joseph B. McGlynn, of East St. Louis, (John J. Hoban, of East St. Louis, of counsel), for appellant.

Farmer, Klingel & Baltz, of Belleville, for appellee.

WILSON, Justice.

The plaintiff, Jesse W. Mitchell, brought an action in the city court of East St. Louis to recover damages under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., for injuries sustained while employed as a switchman by the defendant, the Louisville & Nashville Railroad Company. At the conclusion of the plaintiff's evidence, and again at the close of all of the evidence, defendant moved to instruct the jury to find it not guilty. The motions were denied. The jury returned a verdict of $32.400 in favor of plaintiff, and judgment was rendered on the verdict. Upon appeal, the Appellate Court for the Fourth District held that the trial judge should have directed a verdict for defendant, because the record contained no competent evidence tending to show that plaintiff was engaged in interstate commerce at the time he was injured, and reversed the judgment of the city court, without remanding the cause. Mitchell v. Louisville & Nashville Railroad Company, 305 Ill.App. 635, 27 N.E.2d 861. Upon leave to appeal granted plaintiff, the record is before us for a further review.

The evidence, so far as determinative of whether plaintiff was engaged in interstate commerce at the time of the accident, will be reviewed for the sole purpose of deciding the propriety of the rulings on the respective motions to direct a verdict. July 3, 1938, plaintiff, fifty-five years of age, was a switchman in a crew employed in the ‘Decoursey Yards' of defendant, a common carrier in interstate and intrastate commerce, near Covington, Kentucky. The Decoursey Yards consist of several classification subyards, where freight trains arriving from other points are broken up and the cars classified or grouped, and made into trains, according to their connecting and destination points, or to their character. Between yards designated ‘A’ and ‘B,’ cars are moved by force of gravity over two humped or inclined tracks. About 2:50 A. M. on the day named, plaintiff's crew was engaged in switching one car from yard ‘A’ or ‘B’ to a yard designated as No. 8, and seven cars from yard ‘B’ to one of the inclined tracks. The engineer, proceeding under signals given by plaintiff in accordance with the foreman's orders for the placement of cars, ran the eight cars onto the hump track, where seven cars were uncoupled. Pursuant to plaintiff's signal, which he testified was to back up, and defendant's witnesses stated was to move forward, the engineer gave the uncoupled cars a sudden forward push down the incline. Plaintiff, running forward, boarded one of the cars in order to apply a hand brake. When they struck other cars standing on the track, he was thrown to the ground and injured.

Nine days before the cause came on for trial the plaintiff presented his motion in writing asking for the production of 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 accident. Defendant answered that a greater time would be required to investigate its records which were kept at Louisville and Covington, Kentucky, in order to obtain the information needed. The court entered an order upon the defendant to produce the required records and documents. Upon the trial it appears that the defendant had not produced the records required by the order previously entered and counsel for defendant stated that there were no records showing the movements of the cars in question. Thereupon, plaintiff testified that shortly before the accident the crew foreman had directed him to obtain a car of ‘perishables' from track 1, in yard ‘A’ or ‘B,’ and seven cars from yard ‘B’; that he distinguished the first car, which was sealed, from others on track 1 by a yellow card on its side, containing the word, ‘perishables,’ in red letters and, written in pencil, ‘Memphis Line, from Cincinnati, Ohio.’ He further stated that the crews classify cars according to these cards, and that the described card meant that the car had come from Cincinnati, and was destined to or beyond Memphis, Tennessee. Defendant objected to the competency of this testimony, and to its admissibility as secondary evidence in the absence of prior notice to produce a card attached to the side of a car. The record does not disclose the destination of the seven cars from yard ‘B,’ known as ‘west-enders,’ or cars regularly destined for connecting lines and points north of the yards, the majority going to Cincinnati. The foreman of plaintiff's crew did not testify, and defendant offered no evidence of the existence, meaning or authenticity of cards on, or of the contents, origin or destination of, any cars in its yards, including those moved by plaintiff's crew.

Plaintiff contends that the trial court properly denied defendant's motions for a directed verdict because the record contains evidence that at the time of the accident he was moving cars designated for interstate transportation, and therefore was engaged in interstate commerce. In considering a motion for a directed verdict, the evidence must be regarded in its aspects most favorable to the party opposing the motion. Western & Atlantic Railroad Co. v. Hughes, 278 U.S. 496, 49 S.Ct. 231, 73 L.Ed. 473; Blumb v. Getz, 366 Ill. 273, 8 N.E.2d 620. Where plaintiff's evidence unquestionably tends to establish a cause of action, the Appellate Court is not authorized to reverse a judgment upon a verdict in favor of plaintiff, without remanding the cause. Darmody v. Kroger Grocery Co., 362 Ill. 554, 1 N.E.2d 56;Mirich v. Forschner...