Pitrowski v. New York, C. & St. L. R. Co.

• Decision Date: 23 September 1954
• Docket Number: No. 33177,33177
• Citation: 4 Ill.2d 125,122 N.E.2d 262
• Court: Illinois Supreme Court
• Parties: Ruth PITROWSKI, Admr., Appellant, v. The NEW YORK, CHICAGO & ST. LOUIS RAILROAD COMPANY, Appellee.

Page 262

122 N.E.2d 262

4 Ill.2d 125

Ruth PITROWSKI, Admr., Appellant, v. The NEW YORK, CHICAGO & ST. LOUIS RAILROAD COMPANY, Appellee.

No. 33177.

Supreme Court of Illinois.

Sept. 23, 1954.

As Modified on Denial of Rehearing Nov. 15, 1954.

Marion J. Hannigan and Edward G. Bicek, Chicago (Edward Wolfe, Chicago, of counsel), for appellant.

Winston, Strawn, Black & Towner, Chicago (George B. Christensen, Douglas C. Moir, and Edward J. Wendrow, Chicago, of counsel), for appellee.

KLINGBIEL, Justice.

This action was brought in the circuit court of Cook County by Ruth Pitrowski, plaintiff-appellant, under the provisions of the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., against the New York, Chicago & St. Louis Railroad Company, to recover damages for the death of her husband.

At the trial, defendant introduced no evidence, but elected to stand upon its motion for directed verdict at the close of plaintiff's evidence. Defendant's motion having been denied, the cause was submitted to the jury, which returned a verdict in favor of plaintiff, and judgment was entered thereon in the amount of $100,000. On appeal, the Appellate Court for the First District reversed without remanding, 1 Ill.App.2d 63, 116 N.E.2d 173, holding that plaintiff had failed to prove any negligence on the part of defendant and, therefore, the trial court erred in refusing to direct a verdict for the defendant. Plaintiffs petition for leave to appeal having been allowed, the cause is now before this court for consideration.

On this state of the record, it is the duty of this court to examine the record to determine whether there is any evidence which, taken with its intendments most favorable to the plaintiff, tends to support the charge of the complaint. Mueller v. Elm Park Hotel Co., 398 Ill. 60, 63, 75 N.E.2d 314. Section 51 of the Federal Employer's Liability Act provides that a railroad carrier engaged in interstate commerce shall be liable in damages for any injury or death of an employee 'resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier'. The act also abolishes the defenses of contributory negligence and assumption of risk. Thus, the only question which we are now called upon to answer is whether there is any evidence in the record, viewed in the light most favorable to the plaintiff, to support the jury's conclusion that defendant was guilty of negligence which contributed to decedent's death, or if there is any evidence from which such negligence could reasonably be incurred. Lavender v. Kurn, 327 U.S. 645, 66 S.Ct. 740, 90 L.Ed. 916; Bonnier v. Chicago, Burlington & Quincy Railroad Co., 2 Ill.2d 606, 119 N.E.2d 254.

The record discloses that decedent met his death at about 3:30 A.M. on October 15, 1951, while engaged in a switching operation for defendant on the industry tracks of the Bell Fibre Products Company plant in Chicago. The accident took place on the spur track which extends in a northerly direction from defendant's tracks into the Bell Fibre plant. At the time of the accident it was a dark morning and there were no lights whatever about the industry track. The switching operation consisted of two box cars which were being pushed by a Diesel locomotive in a northerly direction. Prior to the occurrence in question the engine and cars with a caboose attached had come north on defendant's main line. The caboose was left on the main line with the head brakeman protecting it. The switching movement then entered the Bell Fibre plant, and the yard conductor, Fietze, walked down the track ahead of the cars to the 'entrance switch' where the track divides into a north track and an east track. When the switching movement passed Fietze onto the north track it was moving at three or four miles per hour, and decedent was riding on the east side of the lead car 'in the place and manner that is customarily done.' As the two cars and engine proceeded north they moved through a thirty-foot 'tunnel' made by the sides and overhang of the adjoining building. The accident occurred about fifteen feet north of the north end of the tunnel. At that time Fietze was standing east of the engine, about eighty feet from the front end of the lead car, so that he could pass signals with his lantern to the engineer to stop or proceed when he got a signal from the decedent. Fietze testified, 'I did not see what happened. What attracted my attention to the happening of something is that I seen a shadow, a shadow was going against the wall. * * * There are no lights of any kind lighted at or about the sidetrack of that tunnel and when I saw the shadow appear to be going towards the wall I heard nothing. I yelled at the engineer to stop. When I yelled he stopped promptly. I can't say how far the engine went from the time I yelled until it did come to a stop. I don't recall. It went about 3 feet, 4 feet, something like that.'

It is undisputed that the derailment was caused by a 'dolly' which was used by the Bell Fibre Company to convey material about its plant on the railway tracks. This dolly was seven or eight feet in length and was constructed of metal angle irons. It extended ten or twelve inches above the track level and had no lights or any warning devices on it. One of defendant's rules provides: 'Track foremen report to and receive instructions from the road master. T...