Sansone v. Atchison, T. & S. F. Ry. Co.

• Decision Date: 09 May 1967
• Docket Number: Gen. No. 50754
• Citation: 228 N.E.2d 101,83 Ill.App.2d 435
• Parties: Raymond SANSONE, Plaintiff-Appellee, v. The ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, a corporation, and Chicago Produce Temrinal, a corporation, Defendants-Appellants.
• Court: United States Appellate Court of Illinois

Page 101

228 N.E.2d 101

83 Ill.App.2d 435

Raymond SANSONE, Plaintiff-Appellee, v. The ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, a corporation, and Chicago Produce Temrinal, a corporation, Defendants-Appellants.

Gen. No. 50754.

Appellate Court of Illinois, First District, Second Division.

May 9, 1967.

Floyd Stuppi, John J. Schmidt, Gus Svolos, Chicago, for appellants.

Barbera & Friedlander, Chicago, for appellee, Dom J. Rizzi, A. J. Hardiman, Chicago, of counsel.

BRYANT, Justice.

This is an appeal from a judgment of the Circuit Court of Cook County, wherein the defendants, the Atchison, Topeka and Santa Fe Railway Company (hereinafter referred to as Santa Fe) and the Chicago Produce Terminal were found guilty of negligence. Plaintiff was awarded $10,000.00 for the injuries he suffered. Several allegations of error are raised by the defendants. They contend that the trial court erred in not granting their motions for a directed verdict or a judgment notwithstanding the verdict and that the verdict was against the manifest weight of the evidence.

On August 19, 1957, the plaintiff, Raymond Sansone, drove to the Chicago Produce Terminal with an employee, Johnny C. Terrell, to unload a boxcar of potatoes located on track 36 on the premises of the Chicago Produce Terminal. Before going to the track where he was to unload the potatoes, the plaintiff stopped at the weight station where an employee of the Chicago Produce Terminal weighed his truck and gave him a scale ticket.

After the plaintiff and his employee had unloaded about one-half of the boxcar, there was 'a sudden jolting action' which moved the cars and truck and the truck knocked the plaintiff backwards. Plaintiff struck the corner of the tailgate with his back and then fell to the concrete platform sustaining the injuries complained of at the trial. Neither he nor his employee saw what caused the boxcar to move.

The sum and substance of the plaintiff's case against the Santa Fe is as follows: Leon Helton, an engineer for the defendant Santa Fe, testified that he was working at the Chicago Produce Terminal on the date of the accident and that he had engaged in some switching operations on track 36 on that date. The only other evidence connecting the Santa Fe to the scene of the accident is an answer to an interrogatory which disclosed that the defendant Santa Fe had moved a locomotive and cars on track 36 on the day of the accident. Nowhere is it shown when this movement was made on that date. Plaintiff also failed to introduce any evidence of negligence on the part of the Santa Fe.

It is clear that damages cannot be assessed upon a mere surmise and conjecture as to what possibly happened to cause an injury. The law requires affirmative and positive proof of actionable negligence as to the proximate cause of injuries suffered to warrant an assessment of liability. Deming v. Hallberg, 221 Ill.App. 180.

In regard to the Santa Fe, inasmuch as the plaintiff failed to (1) connect the defendant to the accident, (2) to establish the cause of the accident, or (3) to establish that the Santa Fe was negligent, it is clear that the plaintiff failed to make out a prima facie case against the Santa Fe and that the trial court erred in refusing to grant either a directed verdict or a judgment notwithstanding the verdict.

We will consider the remainder of the issues raised here as they...