Phillabaum v. Lake Erie & W.R. Co.

• Decision Date: 16 December 1924
• Docket Number: No. 16086.,16086.
• Citation: 315 Ill. 131,145 N.E. 806
• Court: Illinois Supreme Court
• Parties: PHILLABAUM v. LAKE ERIE & W. R. CO.

315 Ill. 131

145 N.E. 806

PHILLABAUM

v.LAKE ERIE & W. R. CO.

No. 16086.

Supreme Court of Illinois.

Dec. 16, 1924.

Error to Appellate Court, Second District, on Appeal from Circuit Court, Peoria County; Charles V. Miles, Judge.

Action by Henry O. Phillabaum against the Lake Erie & Western Railroad Company. Judgment for plaintiff was reversed by the Appellate Court, and plaintiff brings certiorari.

Reversed and remanded.Henry R. Rathbone, of Chicago, and Clarence W. Heyl, of Peoria (Heyl & Heyl, of Peoria, of counsel), for plaintiff in error.

John B. Cockrum and J. G. McKay, both of Indianapolis, Ind., and Miller, Elliott & Westervelt, of Peoria, for defendant in error.

THOMPSON, J.

This is an action for damages based on a violation of the Federal Safety Appliance Act (U. S. Comp. St. §§ 8605-8623), which makes it unlawful for any railroad engaged in interstate commerce to use a car not equipped with couples coupling automatically by impact. The Lake Erie & Western Railroad Company, defendant in error, is a common carrier engaged in interstate commerce, and at the time of the injury in question Henry Phillabaum, plaintiff in error, was employed by defendant in error in a switching movement. There was a verdict and judgment in favor of plaintiff in error in the circuit court in Peoria county. On appeal the Appellate Court for the Second District reversed this judgment, and incorporated in its judgment a finding of fact to the effect that the injury was not caused by the use of a defective coupler but by the contributory negligence of plaintiff in error. This court has granted a writ of certiorari to review the judgment of the Appellate Court.

This being a case tried by jury, and the Appellate Court having reversed the judgment on the facts without remanding the cause, the inquiry here is limited to ascertaining whether there is in the record any evidence supporting the charge of plaintiff in error, or whether the defense is so conclusively established that defendant in error is entitled to judgment as a matter of law. Where a law case is tried by a jury, and the evidence is conflicting, the Appellate Court does not have the power to weigh and determine on which side the preponderance of the evidence lies and enter an original judgment on its consideration of the evidence contrary to the verdict of the jury. Mirich v. Forschner Contracting Co., 312 Ill. 343, 143 N. E. 846.

Defendant in error contends that the judgment of the Appellate Court should be affirmed for the reasons: (1) That there is no evidence in the record showing negligence on its part; (2) that the failure of plaintiff in error to observecertain safety rules known to him was the cause of his injury; and (3) that the movement of the train while plaintiff in error was in a place of danger was a cause of the injury, wholly independent of the condition of the couplers.

It is unnecessary to a decision of this case to set out the evidence in detail. Plaintiff in error, in obedience to orders of his superior, was at the time of his injury engaged in removing a freight car from the main track of defendant in error. The track runs north and south, and the engine engaged in the switching operation was on the north end of a string of three-freight cars. As the string moved south to pick up the car to be moved plaintiff in error rode on the southeast corner of the car at the south end of the string. The coupler on the car on which he was riding was closed, and the coupler on the north end of the other car was open, so that they were in proper condition to couple by impact. The cars came together, and the drawbars entered, but the coupling did not make. Plaintiff in error alighted, and walked south to the point where the single car had come to a stop. He signaled the engineer to move south with the string of cars. The couplers came in contact, but again the coupling failed to make. Thereupon plaintiff in error went between the two cars and closed the coupler on the car to be picked up by manipulating it with his hands. In order to effect a coupling it was necessary to open the coupler on the other car, and, while he was climbing through between the two cars to operate the lift to open the coupler, the engineer moved the string of cars south, and the right foot of plaintiff in error was caught between the couplers and crushed. The record does not show that plaintiff in error at the time of his injury was engaged in interstate commerce.

Defendant in error introduced much testimony to the effect that the coupler was not defective, and that its failure to couple was due to the failure of plaintiff in error to have the couplers in proper alignment. There was also evidence to the effect that the foot of plaintiff in error was caught while he was kicking one of the couplers while the train was moving, which was in violation of a rule known to plaintiff in error. It is not the province of this court to weigh this evidence nor to determine the credibility of witnesses. It is clear from the record that there is substantial evidence showing that the couplers were defective, and, this being true, neither this court nor any other court has the power to deprive plaintiff in error of his right to a trial of the facts by a jury. Whether the rules which it is claimed plaintiff in error violated were in effect at the time of the injury or had been abrogated by nonobservance, or whether the violation of the rules contributed to the injury, were questions of fact for the jury. Preble v. Wabash Railroad Co., 243 Ill. 340, 90 N. E. 716;Hampton v. Chicago & Alton Railroad Co., 236 Ill. 249, 86 N. E. 243. He was certainly not guilty of such contributory negligence as would justify a holding that his right to recover was barred as a matter of law. Chicago, Rock Island & Pacific Railway Co. v. Brown, 229 U. S. 317, 33 S. Ct. 840, 57 L. Ed. 1204;Popplar v. Minneapolis, St. Paul & Sault Ste. Marie Railway Co., 121 Minn. 413, 141 N. W. 798, Ann. Cas. 1914D, 383.

The important question in the case is whether the movement of the train was an intervening...