Shipley v. Southern Pac. Co.
| Decision Date | 18 September 1963 |
| Docket Number | Gen. No. 48633 |
| Citation | 193 N.E.2d 862,44 Ill.App.2d 1 |
| Parties | James SHIPLEY, Plaintiff-Appellant, v. SOUTHERN PACIFIC COMPANY, a corporation, and the Pennsylvania Railroad Company, a corporation, Defendants-Appellees. |
| Court | United States Appellate Court of Illinois |
James A. Dooley, Chicago, for plaintiff appellant.
Nygren & Holloway, William S. Jacob, John N. Kern, Chicago, for Southern Pacific Co.
Robert H. Bierma A. L. Foster, Kirkland, Ellis, Hodson, Chaffetz & Masters, Frederick W. Temple, Max E. Wildman, Chicago, of counsel, for Pennsylvania R. R. Co.
This is an appeal from a judgment on a verdict of not guilty in a personal injury suit. Plaintiff sued to recover for injuries incurred when sheets of plywood fell on him while he was unloading a boxcar on November 26, 1952 at the Washington, D. C. yards of his employer, United States Plywood Corporation, which was both consignor and consignee of the shipment. Originally named as defendants were four railroads--Southern Pacific Company, Pennsylvania Railroad Company, Texas and New Orleans Railroad Company and the St. Louis Southwestern Railway Lines. Each had carried the car for a portion of the journey from the plywood company's yards in Mapleton, Oregon, where it had been loaded on November 5, 1952, to its siding in Washington, D. C., where it arrived on November 21st and was unloaded on November 26, 1952. After the trial had commenced, plaintiff voluntarily dismissed the action as to defendant Texas and New Orleans Railroad Company and St. Louis Southwestern Railway Lines.
It is plaintiff's theory that the car was properly loaded prior to its delivery to the Southern Pacific Company in Oregon; that the plywood fell on plaintiff because the load had shifted during transit; that such shifting was caused by one violent impact, in the opinion of plaintiff's expert witness, or as plaintiff's counsel suggests, by a series of violent impacts; that such impact or impacts occurred when the Southern Pacific Company and the Pennsylvania Railrad Company humped 1 the car; that defendants' negligence, as plaintiff states it, lies in the fact that this humping was done despite the fact that the car was posted on both ends with signs which warned 'Do Not Hump.' While the foregoing is plaintiff's basic and principal argument, he also argues that it was negligence for defendants to hump a car of lumber, even if it had not been posted with a 'Do Not Hump' sign, and that the terminal carrier, Pennsylvania Railroad Company, was negligent in failing to break the seal and inspect the condition of the load to determine whether it was safe to unload.
The box car was loaded with 78,000 pounds of plywood by the United States Plywood Corporation at its Mapleton, Oregon yards. The sheets were 8 feet long and 4 feet wide and varied in thickness from 1/4 to 3/4ths of an inch. They were loaded in bundles 32 inches high each, four bundles making one stack. Nine stacks, each approximately 10 feet 8 inches high were placed in the car. Between the last two stacks there remained a space of about 42 inches in which timbers were securely wedged so as to buttress the stacks and keep them from shifting. After the car had been loaded, an 'Unload from This Side Only' sign was placed on it near the door through which it had been loaded and an 'Unload Other side' sign was placed on the opposite side of the car. As to any other signs being placed on the car at Mapleton, Oregon, the superintendent employed by the plywood company at that plant testified, as plaintiff's witness, that 'Do Not Hump' signs were not placed on the car there and that he never had a supply of such signs at Mapleton. The head car loader of the plywood company testified by deposition that he was in charge of whatever cards might have been placed on the car at Mapleton and that he never placed any 'Do Not Hump' cards on any car shipped out of Mapleton, nor was there any supply of such cards there. The testimony of these two witnesses remained uncontroverted.
On November 5, 1952 the boxcar was turned over to defendant Southern Pacific Company, which humped the car in a retarder yard 2 at Los Angeles on November 11, 1952 and which flat-switched the car on five other occasions before turning it over to the Texas and New Orleans R. R. Co. at El Paso, Texas. The Texas and New Orleans switched the car at San Antonio and at Hearne, Texas before turning it over to the St. Louis Southwestern at Corsicana, Texas. The latter moved the car to East St. Louis, where it came under the control of defendant Pennsylvania Railroad, which delivered it to the plywood company's siding at its yard in Washington, D. C. Enroute, the Pennsylvania flatswitched the car at Rose Lake, Illinois and at Indianapolis, Indiana and humped it at its Enola yard at Harrisburg, Pa., which is equipped with automatic retarders.
Five days after the car had been delivered to the plywood company's yard at Washington, D. C., plaintiff and his foreman broke the seal and opened the door. They saw that some of the timbers intended to buttress the stacks were broken. Nevertheless the two men proceeded to unload the plywood. They did so from the side containing the 'Unload Other Side' sign; that is, from the wrong side. They first removed some of the broken bracings. They next unloaded by hand, a sheet at a time, the top two bundles of a stack situated in front of the door. They removed the last two bundles by using a fork lift. Plaintiff then entered the car to take out some stripping which had been under the stack they had removed. While doing so, he was injured when plywood from one of the other stacks fell on him.
Plaintiff testified that when he was unloading the car, he saw a 'Do Not Hump' sign on it. His foreman who was with him during the unloading testified on direct examination that he did not remember seeking such a sign on the car, and on cross-examination, that he did not see such a sign on the car. Plaintiff's further evidence is that a force of 15,400 pounds was required to break each one of the timbers used for bracing the stacks and that such a force would not be generated in a normal and reasonable handling of the car.
Plaintiff argues that the court should have granted his motion for a judgment n. o. v. Defendant Southern Pacific Company argues that the record does not show any evidence of negligence on its part which justified the submission of the case against it to the jury. Defendant Pennsylvania Railroad Company urges that there is no evidence against either defendant which justified submission of the case to the jury and that a directed verdict should have been granted as to both defendants. If the argument of defendants is sound, it will dispose of the entire case. We will therefore proceed to consider whether plaintiff made a prima facie case of negligence on the part of either or both of the defendants.
The question presented for this purpose is whether there is any evidence, which taken with all reasonable inferences to be drawn therefrom in its aspects most favorable to plaintiff, tends to prove the essential elements of his case. There is a qualification to this general statement, and that is, that the court may consider the material facts established by the uncontroverted evidence in the case. Wasson v. Insurance Co. of North America, 25 Ill.App.2d 35, 165 N.E.2d 528; Gardner v. International Shoe Co., 386 Ill. 418, 54 N.E.2d 482; Dixon v. Smith-Wallace Shoe Co., 283 Ill. 234, 119 N.E. 265; Paulsen v. Cochfield, 278 Ill.App. 596; Friesland v. City of Litchfield, 24 Ill.App.2d 390, 164 N.E.2d 606.
Defendants are not joint tort feasors. Neither is liable for the acts of the other. As to plaintiff's principal theory of his case, there must be some evidence as to where the humping which caused the load to shift occurred, and that at that time there were 'Do Not Hump' signs on the car. For that purpose we must accept as true plaintiff's testimony that he saw a 'Do Not Hump' sign on the car on November 26, 1952, even though this was contradicted by the testimony of his foreman. As we have pointed out, however, there must also be considered the uncontradicted testimony of plaintiff's own witnesses, the plywood company superintendent and the head car loader at Mapleton, Oregon. They testified that 'Do Not Hump' signs were not put on the car at Mapleton; that they never used such signs; and never had a supply of them on hand.
Accepting the fact established by plaintiff himself, the question which arises is where were the signs placed on the car? Plaintiff has offered no direct evidence with respect thereto. Unless the presence of the signs on the car during the humping operations can be established by presumption or by an inference from the subsequent existence of such signs on the car, there is no proof, either direct or circumstantial, that when defendants humped the car, it was posted with a 'Do Not Hump' sign.
Defendants argue that while a fact once shown to exist may be projected forward in time, it is not...
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