Nickell v. Baltimore & O. R. Co.
| Decision Date | 21 May 1952 |
| Docket Number | Gen. No. 52F1 |
| Citation | 347 Ill.App. 202,106 N.E.2d 738 |
| Parties | NICKELL v. BALTIMORE & O. R. CO. |
| Court | United States Appellate Court of Illinois |
Kramer, Campbell, Costello & Wiechert and John C. Roberts, East St. Louis, for appellant.
Philp G. Listeman, James H. Bandy, East St. Louis, for appellee.
This is an appeal from a judgment of the Circuit Court of St. Chair County in favor of Ida Nickell, administrator (hereinafter called plaintiff), as against the Baltimore & Ohio Railroad Company, a corporation, appellant (hereinafter called defendant), in the sum of $35,000. The action was instituted by plaintiff to recover by reason of the death of plaintiff's intestate, a 53-year-old employee of defendant Railroad, under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq. The verdict of the jury was returned in the sum of $50,000. After presentation and argument of motion for judgment notwithstanding the verdict, and motion for a new trial, the Trial Court required a remittitur of $15,000, and after entry of such remittitur, the motions were overruled and judgment was entered in favor of plaintiff, for $35,000.
The fatal injury to plaintiff's intestate occurred when the deceased was struck by a mail and express train of the defendant Railroad Company, on September 22, 1949, at about 7:00 o'clock in the morning, as he was passing over one of the main tracks of the Railroad Company in the railroad yards in East St. Louis. The plaintiff's intestate was a fireman on switch engines, and also an extra engineer at times. Near the point of the fatal injury an underpass had been constructed on St. Clair Avenue, at which point vehicular traffic travelled under the railroad tracks. On either side of St. Clair Avenue were passageways designed for pedestrian travel under the tracks. The passageways were reached by means of stairways which extended downward from the surface of St. Clair Avenue. There were no other public crossings of the defendant's tracks for a distance of about two or three miles in one direction, and one mile in the other direction. The roundhouse to which plaintiff's intestate was to report before commencing his day's work was situated about 1,500 feet north and west of the St. Clair Avenue crossing, and the engine on which he was to work that day was standing on a switch track near the roundhouse, and the engineer was awaiting the arrival of plaintiff's intestate.
The evidence showed that for several years before the fatal injury with which we are concerned in the instant case, the electric lights in the pedestrian passageways under the tracks were broken, leaving the passageways as dark caverns, even in the daytime. The floors of the passageways were covered with human filth and broken glass. There was evidence that the dark tunnels had the odor of a toilet, and were hiding and loafing places for bums and drunks who frequented the taverns and stockyards in the areas near the railroad crossing. There was testimony to the effect that persons would not walk through the passageways alone, day or night, because of these circumstances. There was also evidence that because of the condition of the passageways, employees of defendant Railroad, in going to and returning from work, were compelled to and did cross over the railroad tracks on the west side of St. Clair Avenue, and that the constant use by such employees of this means of ingress and egress wore paths in the railroad embankment. This use of the pathways was known to the employees of defendant.
On the particular morning in question plaintiff's intestate came upon the railroad embankment used by employees for crossing the tracks in going to their work. The evidence showed that he signalled a switchman who was standing near a cut of cars which had been stopped on one of the tracks, to hold his train so that he, plaintiff's intestate, could pass over the tracks on his way to the roundhouse. The switchman acknowledged the signal and passed a similar stop signal to the engineer of the train on which he was working, and stood and watched plaintiffs' intestate run toward him. When plaintiff's intestate reached the north rail of the north Baltimore & Ohio main track, and was only a few feet from the switchman referred to, the switchman for the first time heard and saw the west-bound Baltimore & Ohio train, and it struck plaintiff's intestate almost at the same time. This witness stated that he did not expect any train at all. The train which struck plaintiff's intestate was drifting or coasting at a speed of 35 to 40 miles an hour, and was about 35 minutes behind schedule. With the steam shut off the engine made very little noise, and while there was testimony that a bell was ringing, there was also testimony of other employees on the freight train which was stopped to the effect that they did not hear either a whistle or a bell. The fireman on the train which struck plaintiff's intestate testified that at the time the train was about 700 feet away from plaintiff's intestate, he saw the deceased walking in the direction of the roundhouse, but did not warn the engineer, and when the engine was between 500 to 600 feet from the deceased, the deceased apparently looked in the direction of the train and started to run across the track. The fireman still did not warn the engineer until the engine was about 90 feet from where deceased was struck.
It was stipulated on the trial of the case that the deceased earned an average of $274.88 per month during the last two years and nine months of his life. The Mortality Tables offered in evidence showed that a man of his age had an expectancy of 18.79 years.
Rules of the defendant Railroad Company with respect to whistles, signals, and engineers and firemen, were introduced in evidence, including a rule that employees 'will keep off all tracks, except in discharge of duty,' and, 'before stepping upon or crossing a track they should look in both directions.'
On appeal in this Court it is the contention of defendant Railroad, that defendant's motion for a directed verdict in its favor, and its motion for judgment notwithstanding the verdict should have been granted. It is also contended that...
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