Northern Trust Co. v. Grand Trunk Western Ry. Co.

• Decision Date: 03 April 1918
• Docket Number: No. 11685.,11685.
• Citation: 118 N.E. 986,282 Ill. 565
• Parties: NORTHERN TRUST CO. v. GRAND TRUNK WESTERN RY. CO.
• Court: Illinois Supreme Court

282 Ill. 565

118 N.E. 986

NORTHERN TRUST CO.

v.GRAND TRUNK WESTERN RY. CO.

No. 11685.

Supreme Court of Illinois.

Feb. 20, 1918.

Rehearing Denied April 3, 1918.

Error to Appellate Court, First District, on Appeal from the Circuit Court, Cook County; David F. Matchett, Judge.

Action by the Northern Trust Company against the Grand Trunk Western Railway Company and another. From a judgment for plaintiff, the Grand Trunk Western Railway Company appealed to the Appellate Court, where the judgment was affirmed, and such defendant brings certiorari. Reversed and remanded.

Loyal L. Smith, of Chicago, for plaintiff in error.

C. Helmer Johnson and D. D. Root, both of Chicago (Arthur H. Chetlain and James D. Power, both of Chicago, of counsel), for defendant in error.

FARMER, J.

This case comes to this court upon a petition for a writ of certiorari to the Appellate Court for the First District to review a judgment of said court affirming a judgment of the circuit court of Cook county in favor of plaintiff below.

The Northern Trust Company, as administrator of the estate of F. Parks, deceased, sued the Grand Trunk Western Railway Company and the Grand Trunk Railway Company to recover damages for the death of Parks, alleged to have been caused by the negligence of defendants. The Grand Trunk Railway Company was subsequently dismissed from the suit. A trial was had by a jury, resulting in a verdict for plaintiff, upon which the court rendered judgment, which judgment was affirmed by the Appellate Court.

Parks was employed by plaintiff in error, the Grand Trunk Western Railway Company, as a switchman. The accident which resulted in his death occurred February 11, 1913, while plaintiff in error was using the tracks of the Chicago Junction Railway Company in the Union Stockyards in the city of Chicago. At the time of the accident deceased was one of a crew engaged in switching a car of horses in the Union Stockyards destined for the state of Maine. The switching operation started north of Forty-Third street. There were a number of tracks at the place where the crew was working. The front end of the engine was hitched onto the south end of the car of horses, and the movement required the car to be taken south past a certain switch which deceased was to throw, signal the engineer, and the car was then to be pushed back north onto another track. The track on which the car was moving south was the farthest east of the tracks at that point. Some distance south of where the car started from was a hay barn on the east side of the track. There was a platform on the west side of the barn extending west. The tracks curved around the west side of this barn, and the platform curved also, being widest near the middle. At the time the accident occurred, there was a pile of hay on the north end of the platform which it is charged obstructed the view of deceased, who was following up the car for the purpose of signaling the engineer when the car had passed over the switch points and then throwing the switch so that the car could be moved back north on another track. At the north end of the platform it is alleged there was 15 or more inches of space between the car and the platform; but in passing around the curve of the platform the bodies of cars of unusual length, such as the one being moved at the time of the accident, would swing in to within a few inches of the edge of the platform. Deceased passed into the space between the car and the north end of the platform. It is contended this was made necessary by the pile of hay on the north end of the platform, which prevented deceased from seeing and being able to signal the engineer after the engine had passed the curve of the platform. Deceased had passed far enough along the edge of the platform so that when the body of the car swung in towards the platform he was crushed and killed.

Numerous errors are assigned and argued as grounds for the reversal of the judgments of the Appellate and circuit courts; but, in the view we take of the case, it will not be necessary or proper for us to discuss any of the errors except the first one, which is that the circuit court erred in denying the motion and petition of plaintiff in error to remove the cause from the state court to the District Court of the United States for the Northern District of Illinois, and that the Appellate Court erred in not reversing the judgment of the circuit court for that reason.

The declaration originally consisted of but one count. It alleged that on February 11, 1913, defendants were common carriers of freight and passengers, and were then and there, as such common carriers, doing and transacting an interstate business between the state of Illinois and the state of Indiana and elsewhere; that the defendants were then and there controlling, operating, and using in their said business locomotive engines, cars, railway tracks, platforms, etc.; that Parks was in the employ of said defendants as a switchman, and was by the defendants' orders then and there working as a switchman within the grounds commonly known as the stock yards of the city of Chicago. The declaration then alleged the duty of defendants to furnish deceased a reasonably safe place in which to work, the failure of defendants to observe or perform said duty, and that by reason of such negligence and failure of defendants Parks was killed.

Before pleading to the declaration, both the defendants therein named presented a motion, petition, and bond for the removal of the case to the District Court of the United States for the Northern District of Illinois. The petition alleged as grounds for removal that the amount in dispute exceeded $3,000; that the suit was of a civil nature brought to recover $10,000 for the death of Parks, as set forth in the declaration; that the Grand Trunk Western Railway Company was a corporation organized under the laws of the state of Indiana, and was when the suit was brought, and still was, a corporate citizen and resident of said state and not of the state of Illinois; that the Grand Trunk Railway Company was a corporation created under the laws of the dominion of Canada, and was when the suit was brought, and still was, an alien and not a citizen of the state of Illinois nor of the United States; that the Northern Trust Company, administrator and plaintiff, is a corporation organized under the laws of the state of Illinois and is a citizen of said state. The bond was approved by the judge of the circuit court, but the removal of the cause was denied to which ruling of the court defendants excepted and filed their special bill of exceptions. After denial of the petition for removal, defendants filed their plea of the general issue to the original declaration. Subsequently three additional counts were filed to the declaration, in which it was averred that deceased was employed as a switchman and engaged in interstate commerce at the time of his death. Defendants pleaded the general issue to the additional counts. At the beginning of the trial defendants renewed their motion to remove the cause, which was again denied.

The federal Employers' Liability Act of 1908 gives a cause of action against a common carrier by railroad engaged in interstate commerce between any of the several states ‘to any person suffering injury while he is employed by such carrier in such commerce’ (U. S. Comp. St. 1916, § 8657), or, in case of the death of such employé, to his personal representative for the benefit of the persons named in the act. By an amendment to that act in 1910 federal and state courts were given concurrent jurisdiction in cases brought under the act, and the amendment provided that when the action is brought in any state court of competent jurisdiction it shall not be removed to any court of the United States.

It is contended by plaintiff in error that the original declaration on file at the time the motion for the removal of the cause was made and denied did not state a cause of action under the federal Employers' Liability Act, and therefore was not controlled by the amendment to said act, and that the cause was removable on the ground of diverse citizenship.

To authorize a recovery under the federal Employers' Liability...