Porter v. Terminal R. Ass'n of St. Louis, Gen. No. 4506.

Decision Date07 January 1946
Docket NumberGen. No. 4506.
PartiesPORTER v. TERMINAL R. ASS'N OF ST. LOUIS.
CourtUnited States Appellate Court of Illinois

OPINION TEXT STARTS HERE

Appeal from Circuit Court, St. Clair County; Maurice V. Joyce, Judge.

Action by Charles L. Porter against the Terminal Railroad Association of St. Louis, a corporation, for personal injuries suffered by plaintiff when thrown from the cab of a derailed locomotive, which he was piloting. Judgment for plaintiff, and defendant appeals.

Affirmed.Kramer, Campbell, Costello & Wiechert, of East St. Louis, for appellant.

Jos. B. McGlynn, of East St. Louis, for appellee.

STONE, Presiding Justice.

This is an action instituted by Charles L. Porter, plaintiff-appellee (hereinafter called plaintiff), against Terminal Railroad Association of St. Louis, a corporation, defendant-appellant (hereinafter called defendant), in the Circuit Court of St. Clair County, to recover damages alleged to have been sustained by plaintiff on account of personal injuries suffered by him on the 13th day of October, 1941. He was then employed as a pilot by defendant, and was engaged in piloting a locomotive engine from the Ashley Street Plant of the Union Electric Company of Missouri to the Cahokia Plant of the Union Electric Company of Illinois. The accident occurred on the tracks of the Union Electric Company of Illinois, south of East St. Louis, Illinois. Plaintiff sustained a fracture of the right leg and other serious injuries.

The suit is brought under the provisions of the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., and the Federal Safety Appliance Act, 45 U.S.C.A. § 1 et seq.

Plaintiff's complaint contained one count. It alleged in substance that defendant was a common carrier, engaged in intrastate and inter-state commerce; that for twenty-one years plaintiff had been employed by said defendant as a switchman; that on the 13th day of October, 1941, plaintiff was instructed by defendant to pilot a steam locomotive from the Ashley Plant of Union Electric Company of Missouri, in St. Louis, via defendant's lines, to the Cahokia Plant of the Union Electric Company of Illinois, at East St. Louis, Illinois; that pursuant to said instructions, under its own power operated by the Electric Company's crew, said locomotive was taken to a point near the Cahokia Plant, where it was derailed, while plaintiff was riding in the cab. He was thrown to the ground and injured.

Together with other allegations of negligence on the part of defendant, it is alleged that defendant failed to use ordinary care to make the place where plaintiff's duties as pilot of said locomotive required him to be reasonably safe.

Defendant's answer admitted being a common carrier, denied that at the time of the accident, both plaintiff and defendant were engaged in interstate commerce, and denied the other material allegations of the complaint.

The cause was tried before the Court and a jury. At the close of all of the evidence offered on behalf of plaintiff, defendant moved for a directed verdict. This motion was denied. At the close of all the evidence in the case, defendant renewed its motion. This was also denied. The jury returned a verdict finding defendant guilty and assessing plaintiff's damages at the sum of Seventeen Thousand Five Hundred Dollars. A motion for a new trial was filed by defendant and was overruled by the Court. Judgment was entered for the above sum and this appeal was perfected.

The record discloses that pursuant to defendant's order of October 13, 1941, plaintiff took charge of Union Electric Company steam locomotive Number 1, to pilot it to the Cahokia plant of the Union Electric Company of Illinois. Plaintiff was an experienced railroad man and an experienced pilot, having been employed by defendant for 21 years. The locomotive in question was operated by an engineer and fireman, who were employees of the Union Electric Company, furnished to defendant for the purpose of transporting the engine from the plant in St. Louis to the East St. Louis plant. The duties of plaintiff were to pilot the engine over the company's tracks, or any tracks that the engineer or fireman was not familiar with; to line switches for them; telling the engineer where signals were for or against him and when to stop and go on signals; to call up the yardmaster and get the route over which to travel and on arriving at destination to report to station master at Union Station and ask him for further instructions. It is undisputed that plaintiff was at all times under the direction of his superiors in the employ of the defendant; that he had to get clearance from the yardmaster at St. Louis and authority and direction as to what rails to use in going over the Merchant's Bridge between St. Louis, Missouri and East St. Louis, Illinois; that he again had to get clearance orders and directions as to the tracks he was to use in going through East St. Louis; that it was his duty to stay with the locomotive until it had been delivered inside the Union Electric Plant, and that he was not to be relieved from duty until he would go to St. Louis and make out a written report as to what he had done.

The evidence shows that plaintiff rode the front footboard of the locomotive for about a quarter of a mile, but due to the lightness and construction of the engine, he was bounced around so much that it was unsafe for him to continue riding there and he made the rest of the journey in the cab of the locomotive.

After leaving St. Louis, they crossed the Mississippi River via the Merchant's Bridge to Madison, Illinois, thence through Venice, Brooklyn and East St. Louis. After leaving East St. Louis, the journey commenced over the rails of the G. M. & O. R. R. to a switch that led over the rails of the Union Electric Company, thence across a public road and thence inside the fence of the Union Electric Company. Immediately upon leaving the rails of defendant company, plaintiff advised the engineer in charge of the locomotive that he had never before been over the rails from that point on; inquired of the engineer if he had been over them and was advised by him that he was completely familiar with the rails, as he was the man who used to deliver their engines at Cahokia. He then told the engineer that he, the plaintiff would have to rely upon him to show him the way from there on, and advise him as to the rules, signals, and location of switches.

As they proceeded along the G. M. & O. rails, the engineer indicated a switch that was necessary to be thrown, and plaintiff unlocked it, let the engine through, threw the switch back, locked it, and climbed back on the deck of the locomotive on the right side or engineer's side, where he was at the time of the accident. At this time the locomotive was still several hundred feet outside the Cahokia plant. After they had proceeded something in excess of 150 feet they struck a derailer on the rails, causing the engine to be derailed and injuring plaintiff.

The undisputed evidence in the record is to the effect that for a distance of about one hundred feet before reaching the derailer, weeds had been permitted to grow up, so that one could hardly see any of the roadbed between the rails. Plaintiff testified that there was nothing visible to him on the rails at that point.

There is no question raised as to excessiveness of the verdict. It is conceded by defendant that plaintiff and defendant were both engaged in interstate commerce at the time of the injury and subject to the provisions of the Federal Employers' Liability Act.

It is argued on behalf of defendant that if the negligence which caused the derailment was an unforeseeable and transitory act of negligence in the operation of the locomotive, in failing to discover or throw the derailer, such negligence was that of either plaintiff or an employee of the Union Electric Company, for which plaintiff cannot recover from defendant. Counsel contend that there was no actionable negligence on the part of defendant, in connection with its duties regarding the furnishing of plaintiff with a safe place in which to work. It follows necessarily, they maintain, that the trial court erred in failing to grant defendant's motions to direct a verdict in favor of defendant.

It is conceded by defendant, and the evidence is undisputed, that plaintiff was an employee of defendant at the time of the accident. The statute under which suit is brought provides in substance: ‘Every common carrier by railroad while engaging in [interstate] commerce * * * shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce * * * resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed * * * or other equipment.’ 45 U.S.C.A. § 51. It is the duty of the Master to furnish the servant with a reasonably safe place to work. This duty also applies to machinery and instrumentalities used by the servant in his work; and this duty follows...

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