Trowbridge v. Chicago & I. M. Ry. Co.

• Decision Date: 04 November 1970
• Docket Number: Gen. No. 69--133
• Citation: 263 N.E.2d 619,131 Ill.App.2d 707
• Court: United States Appellate Court of Illinois
• Parties: Maurice M. TROWBRIDGE, Appellee, v. CHICAGO & ILLINOIS MIDLAND RAILWAY COMPANY, Appellant.

Page 619

263 N.E.2d 619

131 Ill.App.2d 707

Maurice M. TROWBRIDGE, Appellee, v. CHICAGO & ILLINOIS MIDLAND RAILWAY COMPANY, Appellant.

Gen. No. 69--133.

Appellate Court of Illinois, Third District.

Nov. 4, 1970.

Graham & Graham, Springfield, for appellant.

Chapman, Strawn, Kinder & Talbert, Granite City, for appellee.

STOUDER, Justice.

Defendant, Chicago & Illinois Midland Railway Company, has appealed from a judgment for $72,500 entered against it on the verdict of the jury in the Circuit Court of Peoria County in favor of Maurice Trowbridge, Plaintiff, in an action based on the FELA.

Plaintiff, age 41, was a part time seasonal employee for the defendant for twenty years. He was injured while working as an employee for defendant at approximately 1:30 P.M., on August 16, 1965, in Petersburg, Illinois.

Plaintiff was the acting foreman for two other employees of defendant, Jessie Byers and Gerald Lewis, who were engaged in cutting brush along the single track right of way near the Fifth Street crossing in Petersburg.

The procedure generally was to have Byers operate the gasoline engine McCullough rotary saw to cut the brush along the right of way. Lewis and the plaintiff would in turn follow Byers, pick up the newly cut brush and pile it in stacks at intervals along the right of way. Later the brush was burned.

The saw was a portable unit with the engine having a sling to strap over the shoulder of the operator. To the engine was connected an enclosed shaft of six feet in length to which was attached a nine inch rotary saw blade.

Trowbridge had operated various types of small power equipment, generally gasoline driven, such as rail saw, tamper tie remover, track liner, chain saw and similar items. He had not operated this particular saw.

The tracks at the scene of the incident run generally from northwest to southeast, and about sixty yards southeast of the scene, Fifth Street crosses the tracks. At the time of the occurrence plaintiff and Byers, the crew member operating the saw, were working to the northeast of the track. Plaintiff was facing north standing on the ends of the crossties and Byers was eight or nine feet to the plaintiff's left with the saw strapped on. Byers were revving up the saw and advancing it toward the trunk of a tree of about two inches diameter which was five or six feet directly north of plaintiff on the edge of the slope. Plaintiff, holding onto the end of one of the branches of the tree with his right hand, saw out of the corner of his eye a car coming to the crossing. Thinking it to be Mr. Hicks, his immediate supervisor, he turned his head to the right momentarily to look and upon glancing back saw that the tree had been cut through. Byers was taking off the saw and at the time plaintiff discovered his leg had been cut below the knee.

Plaintiff was hospitalized for a short time and was treated by physicians employed by defendant until the end of October, 1965. Trowbridge returned to work for defendant April 1, 1966.

According to the complaint and evidence several theories of negligence were advanced by plaintiff. They included the contention that the saw tended to jump and buck, that it did not include a safety guard, that plaintiff was not warned of the dangers incident to the use of the saw and that no safety meetings had been held for several years and use of the saw was not included in safety rules. Defendant contended on the other hand that plaintiff's injury was solely the result of his own inattention.

In seeking to reverse the judgment of the trial court defendant argues there were errors in rulings on instructions and evidence and also the judgment is excessive.

The principal controversy relating to instructions is whether IPI Instruction 160.02 as tendered by plaintiff and approved by the trial court over objection of defendant should have been given without modification. The instruction as given provided, 'At the time of this occurrence there was in force a federal statute which provides that whenever an employee of a railroad is injured while engaged in the course of his employment, and the injury results in whole or in part from the negligence of any of the officers, agents or other employees of the railroad, then the railroad shall be liable in damages to the injured employee. Contributory negligence on the part of the injured employee shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee.' Defendant tendered an instruction in the language of 160.02 quoted as aforesaid but modified by the addition of the following language, '* * * If, however, you find from the evidence that the sole proximate cause of the injury was the negligence of the plaintiff, then the plaintiff shall not recover any damages from the defendant railroad.' Defendant also objected to another of plaintiff's given instructions (IPI 21.02, Burden of Proof) for the same reason namely the failure of the instruction to refer to plaintiff's contributory negligence as the sole proximate cause of his injury.

As its initial premise, defendant relies on the general rule that each party is entitled to have the jury instructed on its theory of the case provided such theory finds support in the evidence. Wrighthouse v. Brown,52 Ill.App.2d 191, 201 N.E.2d 752; Sims v. Chicago Transit Authority, 7 Ill.App.2d 21, 129 N.E.2d 23; Savage v. Blancett, 47 Ill.App.2d 355, 198 N.E.2d 120; Hitt v. Langel, 93 Ill.App.2d 386, 236 N.E.2d 118 and Berg v. Collier, 60 Ill.App.2d 145, 208 N.E.2d 353. The foregoing cases cited by defendant illustrate and discuss the general rule but are of little assistance by way of analogy since the cases do not involve FELA actions or instructions relating to causation. We are in accord with the general view of such cases and the rule announced is basic to any consideration of whether or not a jury is properly instructed.

This brings us to defendant's more particular argument namely that it is entitled to have the uniform instruction (160.02) modified by adding the language indicating that defendant should be found not guilty if the evidence showed that the sole proximate cause of plaintiff's injury was his own negligence. In support of this argument defendant relies on Rogers v. Missouri Pacific, 352 U.S. 500, 77 S.Ct. 443, 1 L.Ed.2d 493; Helton v. Thomson, 311 Ill.App. 354, 36 N.E.2d 267, Chicago, St. P., M. & O.R. Co. v. Arnold, 8 Cir., 160 F.2d 1002 and Ottley v. St. Louis-San Francisco Ry., 360 Mo. 1189, 232 S.W.2d 966, and the comments of the drafters of the Illinois Pattern Instructions to IPI Instruction 160.02.

Any discussion of negligence or liability under the FELA necessarily includes ideas of causation. In Rogers v. Missouri Pacific, supra, cited by defendant, the court reviewed and reversed a Missouri State Court decision which set aside a jury verdict in favor of plaintiff employee. The main thrust of the Rogers opinion reflects a concern by the Court for the failure of trial courts to accept and approve the resolution of claims under the FELA by the jury. The opinion emphasizes that the determination of negligence, contributory negligence and causation in FELA cases is peculiarly a province of the jury and the trial court ought not to substitute its determination of causation for that of the jury. No question is raised in the Rogers case concerning the propriety of instructions.

In Helton v. Thomson, 311 Ill.App. 354, 36 N.E.2d 267 and Ottley v. St. Louis-San Francisco Ry., 360 Mo. 1189, 232 S.W.2d 966, the court concludes that there was a complete absence of any evidence from which it could be inferred that the defendant employer was guilty of any negligence contributing to the employee's injury. In explaining its views on the absence of employer negligence the court postulates that the employee's injury was caused by his own fault and not by any conduct of employer. In neither of the aforementioned cases was the propriety of any 'sole proximate cause' instruction involved. Nor does either opinion suggest either directly or by implication, that FELA provisions concerning contributory negligence are inadequate in the determination of causation.

The Court in Chicago, St. P., M. & O.R. Co. v. Arnold, supra, was principally concerned with the question of whether an instruction relating to the timeliness of a warning given by the person in charge of the train had been properly refused, the court concluding that the instruction should have been given. The only reference to 'sole proximate cause' in an instruction was the court's recitation of an issues instruction which included defendant's claim that plaintiff's negligence was the sole proximate cause of his injury. The propriety of an 'sole proximate cause' instruction was not an issue in the Arnold case and the discussion of causation by the court represents the view of the court regarding the duty of an employee to follow warnings when such warnings are required and given.

We do not believe that the general language of the foregoing cases can be extended to authorize or approve the giving of a sole proximate cause instruction. On the contrary Page v. St. Louis Southwestern Railway Co., 5 Cir., 349 F.2d 820, concludes that the introduction of such an issue is likely to be confusing and is not a distinct issue apart from the standard imposed by the FELA.

In the notes on Use regarding IPI 160.02 there appears the following on page 394, '* * * Where the contention is made and supported by evidence that the employee's negligence is the sole proximate cause of the accident, the instruction should be modified since this is a defense to the action * * *'. The foregoing recommendation is apparently based on the comment to IPI 160.02 which on page 395 states, '* * * If the negligence of an employee was the sole cause of his injury he may not recover. Helton v. Thompson (Thomson), 311 Ill.App. 354 (36 N.E.2d 267) (1st...