Pellegrini v. Chicago Great Western Railway Company

• Decision Date: 30 July 1963
• Docket Number: No. 13922.,13922.
• Citation: 319 F.2d 447
• Parties: Willie PELLEGRINI, Plaintiff-Appellant, v. CHICAGO GREAT WESTERN RAILWAY COMPANY, a corporation, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

319 F.2d 447 (1963)

Willie PELLEGRINI, Plaintiff-Appellant, v. CHICAGO GREAT WESTERN RAILWAY COMPANY, a corporation, Defendant-Appellee.

No. 13922.

United States Court of Appeals Seventh Circuit.

June 4, 1963.

On Petition for Modification July 30, 1963.

Rehearing Denied July 30, 1963.

James A. Dooley, Chicago, Ill., for appellant.

R. Lawrence Storms, Edward J. Wendrow, Chicago, Ill., Winston, Strawn, Smith & Patterson, Chicago, Ill., of counsel, for appellee.

Before DUFFY, SWYGERT and MAJOR, Circuit Judges.

MAJOR, Circuit Judge.

Plaintiff, Willie Pellegrini, brought this common law action against defendant, Chicago Great Western Railway Company, to recover damages for personal injuries allegedly sustained by him as the result of defendant's negligence in delivering for loading and use in interstate commerce a railroad boxcar (owned by the Pennsylvania Railroad Company) which was in a defective and unsafe condition for its intended use. The alleged injury was sustained March 16, 1958, when the door of the car fell off and struck plaintiff as he was performing his duties as grain inspector for the State of Illinois. Defendant denied negligence and also pleaded contributory negligence on plaintiff's part. The case was tried to a jury which returned a verdict in favor of defendant and against plaintiff. From a judgment entered on this verdict, plaintiff appeals.

The contested issues here as stated by plaintiff are (1) that the trial court erred in its refusal at the close of all the evidence to direct a verdict that defendant, as a matter of law, was guilty of negligence, and (2) that plaintiff was denied a fair and impartial trial by the admission of incompetent and prejudicial evidence, by the refusal to admit competent evidence and by the giving to the jury of improper and erroneous instructions.

The contested issues as stated by defendant (in summary form) are (1) that the court could properly have directed a verdict for defendant on the ground that plaintiff failed to prove the negligence alleged; (2) that plaintiff was guilty of contributory negligence which would bar recovery as a matter of law; (3) that if it be assumed, contrary to defendant's contention, that plaintiff made a submissible jury case on the question of defendant's negligence and his freedom from contributory negligence, no reversible error was committed during the course of the trial. Particularly it is contended that any rulings on the admission of evidence or the giving of instructions relating to damages were necessarily harmless in view of the fact that the jury returned a verdict of no liability.

We consider first the issues relating to liability, which encompass questions of law and fact. The principal question of law concerns the duty of a railroad when it furnishes a car to a shipper and its employees to be loaded or unloaded. The issue of fact, perhaps also one of law, arises from the court's refusal to direct a verdict pursuant to motions made by each of the parties. More specifically, it relates to the action of the court in submitting the case to the jury.

The trial was lengthy and the trial court was presented with many complicated and difficult situations. This court waived on behalf of plaintiff the filing of a printed appendix and consented to hear the appeal on the transcript of the proceedings, which exceeds 3500 pages, with a common law record of 380 pages. Our burden, however, has been eased to some extent by the defendant's submission of a printed appendix in connection with its brief. After much consideration, we have reached the definite conclusion that neither side was entitled to a directed verdict and that the court properly submitted the case to the jury. Even so, we think, contrary to the vigorous contention advanced by each of the parties, that the case on its facts is close; in fact, it is one of those cases where the record would support a jury verdict either for or against defendant. It follows that the verdict must prevail, providing the case was tried free from prejudicial error.

A detailed statement of the proof would unduly prolong this opinion and is unnecessary in view of the conclusion above stated. We shall, therefore, attempt to state the facts in abbreviated fashion. The car in controversy, owned by the Pennsylvania Railroad, was loaded at West Lafayette, Ohio, with 860 milk cans, consigned to Sumner, Iowa. On March 4, 1958, it was delivered to defendant in Chicago, moved by it to Oelwein, Iowa, where it was moved by another train to Sumner, Iowa, and unloaded March 7, 1958. It was then moved empty to Westgate, Iowa, where, on March 12, it was loaded with corn by Westgate Elevator Company. The car was sealed and left Westgate March 14, destined for Chicago, where it arrived March 15. It was on the following day that the occurrence giving rise to this law suit took place.

The car was continuously under seal during the time it was in defendant's possession, except the time between the date it was unloaded at Sumner and reloaded at Westgate. Defendant maintained no car inspector in either of these towns, and made no inspection of the car while it was in its possession other than the so-called running, external inspection which consisted of inspecting the outside of the car and such appurtenances as brakes, wheels and rigging.

Plaintiff was a member of a crew of grain inspectors some of whom, including plaintiff, were employed by the State, some by the Chicago Board of Trade and one by the defendant. All grain cars coming to Chicago's yard were subject to grain inspection by this crew. The crew was thus engaged on the morning of March 16, 1958. To make an inspection, the seal on the door was broken, the door latch released, the car door opened and a probe to pick up and withdraw grain samples was then inserted in the load of grain. Plaintiff's particular duty was to open the car door so the samplers could do their work and for this purpose was furnished a 3½ ft. crowbar, the tool customarily and usually used for opening car doors. The car in controversy was steel, approximately 40-ft. long, with openings on either side covered by steel sliding doors weighing approximately 250 pounds, and had a grain capacity of 80 to 100 thousand pounds.

Grain cars, including the one in controversy, are lined with wood, the lining being attached to vertical wooden door. posts on both sides of the car door. These wooden posts are attached to a metal angle riveted to the side of the car. When grain is shipped there is first installed on the inside of each opening what is termed a paper grain door which consists of layers of heavy paper with horizontal bands of steel prefabricated into them, furnished by the defendant to its grain shippers and installed by the latter in the cars, a new paper door being used in each instance. Defendant also supplies the shipper with the means to attach such paper doors to the vertical wooden door posts. When the car is loaded, the grain exerts pressure on the paper doors which in turn exert pressure on the door posts to which they are attached. There is always some bulging of the paper door, the condition of the door posts being the most determinative factor in how much bulging will occur, and normally the paper door will not bulge so much that it will contact the exterior door of the grain car or prevent its closing.

The procedure thus outlined was followed in the instant situation. The car, as noted, was loaded with grain at Westgate, Iowa, by Westgate Elevator, the shipper. The manager of the elevator testified that his company did not inspect cars, but cleaned them out, repaired any holes to prevent leakage of grain, and refused and notified the depot agent of any car found unsuitable for loading. He further testified that he had not seen and could not recall this particular car and that his elevator kept no record on cars found to be defective.

On the morning of March 16, 1958, plaintiff, two other members of a crew of grain inspectors, two employees of the Board of Trade and one employee of defendant were engaged in taking grain samples from railroad cars located in defendant's Chicago yards. All of these persons were at or near the car which plaintiff was attempting to open at the time he received his alleged injuries and all were witnesses for one side or the other. As might be expected, there is some conflict in their testimony as to exactly what happened. It is undisputed that plaintiff first attempted to open the door on the north side of the car and, being unable to do so, made the same attempt on the door on the south side. There was testimony that plaintiff broke the seal on the door, reached up with his crowbar to open the latch which was wedged tight and, as he did so, the steel door "popped" off the car and struck him; that he was knocked down, attempted to get up but couldn't. There was testimony that the door was bulged and "swelled out," indicating that the paper door was exerting pressure against the steel door, which kept the latter from opening. After the occurrence, members of the grain crew examined the car and the door. There was testimony that the paper grain door had pulled loose from the posts to which it was attached and that the door posts were "splintered up and rotten."

On the day following the occurrence, an employee of the defendant, at the request of its general claim agent, inspected the car, and the report made by him, introduced into evidence by plaintiff, was as follows:

"This inspection was made by me on March 18, and found the following: AL doorpost broken out, and B. L. doorpost broken and loose. Defects appeared old. Signode paper grain door was bulged out about 5 inches and coming in contact with door which was bent. Both rails where door travels appeared O.K. Marks were found on bottom door supporting paper frame door, indicating bar had been used on door in an effort to open it."

The same person who made this report,...