Rylander v. Chicago Short Line Ry. Co.

• Citation: 153 N.E.2d 225,19 Ill.App.2d 29
• Decision Date: 27 June 1958
• Docket Number: Gen. No. 47387
• Parties: Roy D. RYLANDER, Appellee, v. CHICAGO SHORT LINE RAILWAY COMPANY, a corporation, Appellant.
• Court: United States Appellate Court of Illinois

Page 225

153 N.E.2d 225

19 Ill.App.2d 29

Roy D. RYLANDER, Appellee, v. CHICAGO SHORT LINE RAILWAY COMPANY, a corporation, Appellant.

Gen. No. 47387.

Appellate Court of Illinois, First District, Third Division.

June 27, 1958.

Rehearing Denied Oct. 23, 1958.

Stevenson, Conaghan, Velde & Hackbert, Chicago (Harlan L. Hackbert, Chicago, of counsel), for appellant.

Louis G. Davidson, Chicago, for appellee.

BRYANT, Justice.

This is an appeal by the defendant in a common law action to recover damages for personal injuries alleged to have been suffered by the plaintiff due to the alleged negligence of the defendant in delivering for loading and use in interstate commerce a tank car which was in defective and unsafe condition for its intended use, wherein the jury returned a verdict for the plaintiff for $32,500, upon which, after defendant's post-trial motions were denied, judgment was entered.

The plaintiff, Roy D. Rylander, was employed by the Interlake Iron Company on February 19, 1951 as a stillman's helper. His duties consisted of mixing various by-products of tar, hereinafter mentioned, in various tanks and loading these products into tank cars.

The defendant, Chicago Short Line Railway Company, is a common carrier. It has a short mileage in the industrial areas in Chicago and vicinity. Its principal function is to render switching service and to pick up freight cars and deliver them to intermediate carriers for the ultimate purpose of transportation to the consignees, and to accept cars from intermediate carriers and deliver them to local consignees--principally the Interlake plant and the Youngstown plant. It had no contractual relationship with the plaintiff. It performed common carrier service for the plaintiff's employer, Interlake Iron Company.

The Interlake Iron Company operated a large industrial plant and owned railroad tracks within the plant enclosure used in operating the plant. Interlake had no motive power for railroad movement. The defendant operated a locomotive and hired the crew and moved all of the freight cars within the Interlake plant. The defendant also leased certain tracks from Interlake and owned certain other tracks within Interlake's plant, and owned and operated certain tracks adjacent to the Interlake plant. These tracks were used, in part, for storage, in part for the inspection of cars and in part for minor repairs found necessary upon inspection. Interlake was not a common carrier. A part of the by-products of the operation of the company were creosote, light oil, heavy oil, carbolic naphthalene and pitch.

Tank cars were usually brought into the Interlake plant in the late afternoon and spotted by the defendant for loading during the night. Tank cars were not owned either by Interlake or the defendant, but were leased by Interlake from the General American Transportation Company, whose business it was to furnish cars, upon lease, to prospective shippers of liquids. The cars were delivered by the defendant Chicago Short Line, as a part of its duty as a common carrier, to the consignor, the Interlake company, for loading. The car involved in the alleged injury to the plaintiff was so delivered and spotted in the late afternoon before the alleged injury occurred. The Chicago Short Line, defendant, in common with most other common carriers, did not own any tank cars. In that sense of ownership the defendant did not furnish tank cars to Interlake or to any other users of tank cars.

The defendant as a common carrier maintained a car inspection system under the supervision of a Master Car Builder, who supervised car repairs, safety and car inspectors. There was a car inspector employed all day in the yard at the Interlake plant. He inspected both empty, about to be loaded, and loaded, about to be emptied, cars. The inspector was an employee of the defendant.

When a tank car which had been leased by Interlake was received by the defendant it was set for loading, or in storage. When Interlake needed a tank car it ordered out one of the tank cars which it had leased which was available and the defendant moved that tank car to the loading place. When a tank car is tendered to the defendant by an intermediate carrier, if it complies with certain basic regulations of the Interstate Commerce Commission the defendant may not refuse to accept the car from that carrier. It must accept the car and place it upon the repair tracks if repairs are necessary. If the car has a defective wheel, a cracked side frame, broken couplings or broken driving gear, the defendant would repair it in the shop when it was delivered to it by connecting carriers. The defendant repairs safety appliances, including a defective pin lifter, defective brake shoe and dragging brake beam. If a tank car was leaking, such a car would be stenciled: 'Don't reload this car on account of leaking. Return home for repairs,' and the defendant would notify the owner of the tank car--that is, the General American Transportation Company, in case of a car owned by it. If there are additional types of repairs necessary, tank cars are returned to the owners for repairs. It is required that a tank car be a good, complete sealed unit. When the defendant inspected cars it looked to see if the tank cars had any conditions which might cause leakage. They walked around the car; they looked underneath it for defects; they could see the condition up on the dome of the car; they could see the lugs from both sides of the end of the car when they are in place holding the topdown, but they could not see if they are broken. Car inspectors were required to know the condition of the cover on the dome of the car. They did that by determining if there is spillage, but they inspected from the ground below and did not climb on the top of the car. But in inspecting boxcars they climbed upon the top of the cars and looked at the runningboards on the top thereof.

On February 19, 1951 a tank car which for some time had been leased by Interlake from the General American Transportation Company was moved by the defendant and placed in a position for loading. On January 9, 1951 that car had been shipped by Interlake to Texas and had been returned on February 17th. On that day the defendant moved the car on Interlake's property, within the plant where the defendant maintained an inspector. These tracks were the tracks leased by the defendant from Interlake and used for storage. This car, leased to Interlake by the General American Transportation Company, was delivered to the defendant empty and under customary procedure, should have been inspected before it was set for loading.

The car that was spotted for loading was a normal tank car, cylindrical in shape, with a dome on top in the center. The dome had a diameter of about 5 feet and a removable cover in the dome which had a diameter of one and a half to two feet. The top of the cylindrical body of the tank car was about 10 1/2 feet from the ground and the dome extended above that about 3 feet. There was a narrow platform on the side of the dome or shell about 8 inches wide and about 2 feet below the top of the cylindrical body of the tank--this making the platform about 5 feet below the top of the dome. The cover of the dome weighed about 50 or 60 pounds and was secured to the dome by a chain. It had two knobs on top of it about 4 inches high which were used to lift and move it. This top was held in place by lugs placed around the circle of the dome opening which were brought down into slots in the opening and were tightened in place with nuts on the lugs, which, when screwed down, held the cover firmly in the opening on the top of the dome.

Interlake provided a permanent platform structure for the loading of tank cars. It is about 3 feet wide and 6 feet long, with a stairway attached to it, and attached to the permanent platform is a hinged platform or drawbridge, which, when it is lowered out onto the tank car, hits the side of the car about level with the top of the tank cylinder. On February 19th the car was so spotted that the hinged platform, when extended towards the car, was opposite the dome itself.

On February 19, 1951, when the plaintiff came to work, he found a tank car which the defendant had spotted for loading with creosote. He lowered the bridge and went out on the platform. The car was empty. While the cover of the dome was in place, only two or three of the lugs, with the nuts were in their proper slots and screwed down to hold the cover in place. He used an 18-inch Stillson pipe wrench and loosened the nuts on the lugs which were holding the top in place. After he loosened the nuts he pulled the lugs back out of their slots, removed the cover from the hole in the top of the dome and set it on one side of the dome, where it was held with a chain. The car is loaded with creosote only through the top of the dome. He checked a valve inside of the dome to make sure that it was closed. Then he went back across the bridge to the platform and down the stairs and underneath the car, where there is a boot cap that fits on a drain leg so that it won't leak any of the solution inside the car. He took off the boot cap to make sure that the valve in the drain leg was closed. He then went up on the drawbridge again and put the spout in the opening of the dome. After dropping the nozzle of the pipe into the opening of the dome he steamed the lines to make sure the lines were open from the mixing tank into the car. Then he started to fill the car with a creosote solution which must be loaded at a temperature of 170 degrees Fahrenheit. He wore rubber gloves and heavy work shoes with cork bottoms for this work. When the car was a quarter or half full he went underneath the car again to see that the valve was not leaking and put the boot cap back in place. When the car was full, to within 4 or 5 inches below the top of the cylindrical body, he went to the mixing tank, about 50 feet away,...