Parthun v. Elgin, J.&E. Ry. Co.

• Decision Date: 21 March 1945
• Docket Number: Gen. No. 43038.
• Citation: 60 N.E.2d 464,325 Ill.App. 408
• Court: United States Appellate Court of Illinois
• Parties: PARTHUN v. ELGIN, J. & E. RY. CO.

325 Ill.App. 408

60 N.E.2d 464

PARTHUN

v.ELGIN, J. & E. RY. CO.

Gen. No. 43038.

Appellate Court of Illinois, First District, Third Division.

March 21, 1945.

Appeal from Superior Court, Cook County; Robert E. Crowe, Judge.

Action under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., by Anthony F. Parthun against Elgin, Joliet & Eastern Railway Company. Verdict and judgment for plaintiff in the amount of $40,000, and defendant appeals.

Affirmed on remittitur of $17,500, otherwise reversed and remanded on question of damages.Knapp, Cushing, Hershberger & Stevenson, of Chicago (Harlan L. Hackbert, of Chicago, of counsel), for appellant

William Wallace McCallum and Marion J. Hannigan, both of Chicago, for appellee.

KILEY, Justice.

This is an action under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., with verdict and judgment for plaintiff in the amount of $40,000. Defendant has appealed.

Plaintiff, employed by defendant as a locomotive fireman, was injured July 28, 1943, when he fell from the tender of a locomotive as he was pushing a waterspout into position after filling the water tank. The case went to the jury on Count 2, which alleged defendant's negligent violation of the Boiler Inspection Act, 45 U.S.C.A. § 23, under which there is no question of contributory negligence, 45 U.S.C.A. § 53. Lilly v. Grand Trunk Western R. Co. 317 U.S. 481, 63 S.Ct. 347, 87 L.Ed. 411. In addition to the general verdict of guilty, the jury found in pertinent special interrogatories that the board attached to the grabiron on the top of the tender gave way so as to cause plaintiff to be thrown from the top, and that coal was lying on the top of the tender at and immediately prior to the accident. Defendant moved to set aside the general and those special verdicts, to vacate the judgment and enter judgment for defendant notwithstanding the verdicts and for a new trial. The several motions were denied.

Defendant contends here that the verdict is excessive, and against the manifest weight of the evidence. Plaintiff claims that this court is bound by the decisions of the federal courts in cases of this kind and has no authority to weigh the evidence. Under section 56 of the Federal Employers' Liability Act, plaintiff had the right to sue in a Federal District Court or in a State Court. Miles v. Illinois Central R. R. Co., 315 U.S. 698, 62 S.Ct. 827, 86 L.Ed. 1129, 146 A.L.R. 1104. Having chosen courts of this State, he must prosecute his action in accordance with our modes of procedure (Minneapolis & St. Louis R. R. Co. v. Bombolis, 241 U.S. 211, 36 S.Ct. 595, 60 L.Ed. 961, Ann.Cas.1916E, 505, L.R.A.1917A, 86), and we have authority to weigh the evidence to determine whether the verdict should stand or whether it should be set aside and the cause retried. Chap. 110, Par. 216, Subpar. 3(b), Ill.Rev.Stats.1943; Corcoran v. City of Chicago, 373 Ill. 567, 27 N.E.2d 451; and Mitchell v. Louisville & N. R. R. Co., 375 Ill. 545, 31 N.E.2d 965. In Tennant v. Peoria & Pekin Union Railway Co., 321 U.S. 29, 64 S.Ct. 409, 88 L.Ed. 520, relied upon by plaintiff, suit was filed in a Federal District Court and the case is, therefore, not appliable.

The engine and tender had been stopped, facing east, on the track next north of, and opposite to, the water pipe. The coal bin serving the locomotive is located in the front part of the tender, and its sides and rear rise 3 or 4 feet above the surface of the water tank comprising the balance of the tender. Plaintiff, after turning the water pipe and spout north into position to fill the tank, climbed by steps on the sloping surface to the level top surface of the tender, in the center of which is the raised mouth of the water tank. Along each side of the coal bin is a runway, and about 6 inches above each side of the bin is a grab bar of iron pipe which extends the length of the coal bin, about 5 or 6 feet, held to its side by 4 upright brackets. To increase the capacity of the coal bin, the spaces between the grab bar and tops of the sides of the coal bin were partially filled by wooden planks fastened by wire. Plaintiff, after filling the tank, started walking east on the right runway toward the locomotive, pushing the spout ahead of him, toward its normal position facing east and holding the grab bar with his left hand. There is no dispute that, while so engaged, he fell from the tender and was injured. The question is whether he fell as a result of an unsafe condition of the top of the tender, or only as a result of losing his balance while pushing the spout. Defendant says that because plaintiff is so directly contradicted by its witnesses and because plaintiff's testimony of the cause of his fall on cross-examination is so inconsistent with and contradictory to his testimony on direct examination, and, moreover, because of the physical facts concerning the fall, the verdict is against the manifest weight of the evidence upon the question of causation.

Plaintiff said on direct examination that he fell after he tripped on some coal on the runway, when the wire and board gave way and he lost his grip on the grab bar. On corss-examination he said the spout was harder to turn to the east than west and harder to move that day than previously; that the board which gave way was fastened to the grabiron with loops of wire which slid back and forth with the board; that the wire and board ‘let go’ and ‘didn't come off all the way’, but ‘came loose’ and the ‘wire came off’ and the ‘board came loose of the wire’ and ‘slid off that grabiron,’ and ‘the wire was looped over the handrail’ and the loop ‘slipped off the grabiron’ because ‘it wasn't a complete loop’ but ‘partly opened’ and the wire ‘partly around the handrail came loose.’ Defendant's argument of inconsistency and contradiction is not borne out by a reading of the complete record of the testimony on this point. We think the jury was justified in finding that one wire was only partially looped over the handrail, so that it was open at the top, and that the top ends widened and slid off the bar-not off the end of the grab bar which defendant argues was impossible as a physical fact because of the location of the upright brackets, but under the grab bar-as a consequence of which the board became loose. Such an inference was not physically impossible. The engineer contradicted plaintiff's story of the circumstances surrounding his fall, saying that plaintiff did not have a hold of the grab bar when he pushed the spout with his right hand, lost his balance and fell; and he and another witness testified they examined the board and wires after plaintiff fell and found their positions normal, with no evidence that a loop or the board had given way. This contradictory evidence presented a question of credibility for the jury. The jury, furthermore, having made the previous finding, could also find that the action of the wire and board broke plaintiff's grasp on the grab bar. There can be no doubt from the testimony, as well as from the photographs in evidence, that plaintiff's hold on the grab bar could not have been secure because of the presence of the board between it and the top of the side of the coal bin, which made it impossible for him to use his fingers and thumb beneath the grab bar in attaining full grip. The board nullified the essential purpose of the grab bar. Accordingly, whether he pushed too hard, as the engineer said and as defendant argues, is somewhat difficult to determine if, when he ‘pushed’, he was holding the grab bar. A full grip on the grab bar would have enabled him to push much harder with less danger. The engineer said the board did not prevent a full hold on the grab bar, but it is clear from the photographs that the opposite is true. It is our conclusion that the finding that the board gave way so as to cause plaintiff's fall was justified.

Plaintiff said on direct examination that he tripped on coal on the runway. On cross-examination he said there were three or four shovelfuls of coal on the runway where he was standing; that it had rolled off the overfilled coal bin, but not while he was standing there; that it was there when he got up on top of the tender, though he did not notice it when he was filling the tank, and saw it first when he tripped; that although normally his first function at the start of each day was to ‘look over’ the top of the tender to see whether it was clean, the day of the injury there was no time to do so; that he had looked on both sides of the tender and saw nothing and, so far as he could see, the top of the tender was clear; that at noon when he climbed up to fill the tank the top was clear as far as he noticed; that he looked at the right side and it must have been clean and that the runway was clean at the time he looked. We have examined closely the transcript of testimony on this point and, while some of plaintiff's answers may be confusing, we believe it is plain that he meant that, so far as he saw or noticed, both in the morning and at noon, there was no coal on the runway but that it must have been there, nevertheless, since he tripped on it and saw it as he fell. The engineer and defendant's road foreman of engineers both testified that they examined the top of the tender after plaintiff fell and saw no coal, and the engineer says that immediately before and at the time plaintiff fell there was no coal on the runway. This defense testimony also presented the question of credibility to the jury.

Defendant says there is no explanation where the coal came from. The engineer says that plaintiff cleaned the runways with a...