Shipley v. Southern Pac. Co., Gen. No. 48633

CourtIllinois Appellate Court
Writing for the CourtSCHWARTZ
Citation193 N.E.2d 862,44 Ill.App.2d 1
PartiesJames SHIPLEY, Plaintiff-Appellant, v. SOUTHERN PACIFIC COMPANY, a corporation, and the Pennsylvania Railroad Company, a corporation, Defendants-Appellees.
Decision Date18 September 1963
Docket NumberGen. No. 48633

Page 862

193 N.E.2d 862
44 Ill.App.2d 1
James SHIPLEY, Plaintiff-Appellant,
v.
SOUTHERN PACIFIC COMPANY, a corporation, and the
Pennsylvania Railroad Company, a corporation,
Defendants-Appellees.
Gen. No. 48633.
Appellate Court of Illinois, First District, third Division.
Sept. 18, 1963.
Rehearing Denied Oct. 17, 1963.

[44 Ill.App.2d 2]

Page 863

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.

SCHWARTZ, Presiding Justice.

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[44 Ill.App.2d 3] 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'

Page 864

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.

[44 Ill.App.2d 4] 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[44 Ill.App.2d 5] 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.

Page 865

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,...

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7 practice notes
  • Potter v. Chicago Heights Motor Freight, Inc., No. 78-1958
    • United States
    • United States Appellate Court of Illinois
    • November 16, 1979
    ...an unjust burden. * * *." 210 N.Y. at 432-433, 104 N.E. at 945. This position was accepted in Shipley v. Southern Pacific Co. (1963), 44 Ill.App.2d 1, 193 N.E.2d 862, where the court found that the carrier had no absolute duty to employees of a consignee to see that the load was safe for Al......
  • Conway v. Belt Ry. Co. of Chicago, Gen. No. 50367
    • United States
    • United States Appellate Court of Illinois
    • September 22, 1967
    ...breach by defendant of some other legal duty which proximately contributed to plaintiff's injuries. In Shipley v. Southern Pacific Co., 44 Ill.App.2d 1, 193 N.E.2d 862, we held that a carrier which did not load some plywood, which shifted during transit and during the unloading of which the......
  • La Salle Nat. Bank v. Feldman, Gen. No. 49935
    • United States
    • United States Appellate Court of Illinois
    • December 28, 1966
    ...than its exception. Schwartz v. Peoples Gas Light & Coke Co., 35 Ill.App.2d 25, 32--33, 181 N.E.2d 826; Shipley v. Southern Pacific Co., 44 Ill.App.2d 1, 7--9, 193 N.E.2d 862; Redmond v. Huppertz, 71 Ill.App.2d 254, 257--258, 217 N.E.2d 85; Jines v. Greyhound Corp., 33 Ill.2d 83, 87--88, 21......
  • Yakupcin v. Baker, No. 79-31
    • United States
    • United States Appellate Court of Illinois
    • April 25, 1980
    ...it for unloading is not under a duty to inspect to determine whether it is safe for unloading. Shipley v. Southern Pacific Co. (1963), 44 Ill.App.2d 1, 193 N.E.2d Essentially, Penn Central argues that car ATSF 521394 was in its control at only two relevant times prior to plaintiff's injury ......
  • Request a trial to view additional results
7 cases
  • Potter v. Chicago Heights Motor Freight, Inc., No. 78-1958
    • United States
    • United States Appellate Court of Illinois
    • November 16, 1979
    ...an unjust burden. * * *." 210 N.Y. at 432-433, 104 N.E. at 945. This position was accepted in Shipley v. Southern Pacific Co. (1963), 44 Ill.App.2d 1, 193 N.E.2d 862, where the court found that the carrier had no absolute duty to employees of a consignee to see that the load was safe for Al......
  • Conway v. Belt Ry. Co. of Chicago, Gen. No. 50367
    • United States
    • United States Appellate Court of Illinois
    • September 22, 1967
    ...breach by defendant of some other legal duty which proximately contributed to plaintiff's injuries. In Shipley v. Southern Pacific Co., 44 Ill.App.2d 1, 193 N.E.2d 862, we held that a carrier which did not load some plywood, which shifted during transit and during the unloading of which the......
  • La Salle Nat. Bank v. Feldman, Gen. No. 49935
    • United States
    • United States Appellate Court of Illinois
    • December 28, 1966
    ...than its exception. Schwartz v. Peoples Gas Light & Coke Co., 35 Ill.App.2d 25, 32--33, 181 N.E.2d 826; Shipley v. Southern Pacific Co., 44 Ill.App.2d 1, 7--9, 193 N.E.2d 862; Redmond v. Huppertz, 71 Ill.App.2d 254, 257--258, 217 N.E.2d 85; Jines v. Greyhound Corp., 33 Ill.2d 83, 87--88, 21......
  • Yakupcin v. Baker, No. 79-31
    • United States
    • United States Appellate Court of Illinois
    • April 25, 1980
    ...it for unloading is not under a duty to inspect to determine whether it is safe for unloading. Shipley v. Southern Pacific Co. (1963), 44 Ill.App.2d 1, 193 N.E.2d Essentially, Penn Central argues that car ATSF 521394 was in its control at only two relevant times prior to plaintiff's injury ......
  • Request a trial to view additional results

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