Webb v. ILLINOIS CENTRAL RAILROAD COMPANY

Citation228 F.2d 257
Decision Date30 January 1956
Docket NumberNo. 11462.,11462.
PartiesJohn W. WEBB, Plaintiff-Appellee, v. ILLINOIS CENTRAL RAILROAD COMPANY, Defendant-Appellant.
CourtU.S. Court of Appeals — Seventh Circuit

William F. Bunn, Chicago, Ill., Herbert J. Deany, Robert S. Kirby, Chicago, Ill., J. H. Wright, Chicago, Ill., of counsel, for appellant.

Robert J. Rafferty, Chicago, Ill., for appellee.

Before MAJOR, LINDLEY and SWAIM, Circuit Judges.

LINDLEY, Circuit Judge.

This is an action under the Federal Employer's Liability Act, 45 U.S.C.A. § 51 et seq., to recover damages for personal injuries sustained by plaintiff in the course of his employment as a brakeman by defendant, resulting, as he averred, from the negligence of defendant in failing to provide him with a reasonably safe place in which to work. Defendant's motions for a directed verdict made at the close of plaintiff's evidence and at the close of all the evidence were denied, as was its alternative motion for a new trial. It appeals from the judgment entered on the verdict in favor of plaintiff, assigning as error the trial court's action in overruling its motions and in giving certain instructions.

Plaintiff had been employed by defendant in various capacities since about 1925 and was, on July 2, 1952, when the accident occurred, working as a brakeman, being assigned to the crew of a local freight run between the cities of East St. Louis and Clinton, Illinois. During the course of his duties, in a switching operation at Mount Olive, he noticed that a wheat car in the train was leaking. While the other crew members continued with the task of picking up cars to be incorporated into the train, he started back to the caboose to get some waste to plug the hole in the leaking car. He turned and on the first step he took, tripped and fell with his left leg buckled under him. He thereby sustained a serious injury to his left kneecap. The accident occurred on the roadbed of defendant's "house track" at a point about one foot from the end of the ties. After plaintiff fell, he looked to see what had caused him to fall and saw a clinker "about the size of my fist" which was partly out of the ground, and a hole beside the clinker. He picked up the offending object and tossed it aside, proceeded to the caboose, procured some waste and plugged the hole in the leaking car. Plaintiff stated that he looked "at the ground" before he stepped but did not see the clinker. He stated further that the footing on the roadbed looked level but was a little soft.

The principal question presented is whether the court correctly ruled that there was sufficient evidence of negligence to require denial of defendant's motions for a directed verdict and submission of the cause to a jury.

Plaintiff's testimony that his injury was caused by his stepping on a clinker is not contradicted. We shall assume, for the purpose of this decision, that such an object on or in the roadbed constituted a hazard to defendant's employees. But to prevail, it was incumbent on plaintiff to adduce evidence that this hazardous condition was produced or was permitted to continue by reason of defendant's negligence. Moore v. Chesapeake & O. Ry. Co., 340 U.S. 573, 71 S.Ct. 428, 95 L.Ed. 547; Eckenrode v. Pennsylvania R. Co., 3 Cir., 164 F.2d 996, affirmed 335 U.S. 329, 69 S.Ct. 91, 93 L.Ed. 41; Delaware, L. & W. R. Co. v. Koske, 279 U.S. 7, 49 S.Ct. 202, 73 L.Ed. 578; Patton v. Texas & P. R. Co., 179 U.S. 658, 21 S.Ct. 275, 45 L.Ed. 361. Fault or negligence may not be inferred from the mere existence of the clinker and the happening of the accident. Delaware, L. & W. R. Co. v. Koske, supra; Patton v. Texas & P. R. Co., supra. The employer is not an insurer that the work place be absolutely safe, but is chargeable only with the duty of exercising reasonable care and diligence to see that the place where work is to be performed is reasonably safe for its workmen. Ellis v. Union Pacific R. Co., 329 U.S. 649, 67 S.Ct. 598, 91 L.Ed. 572; Seaboard Air Line Ry. v. Horton, 233 U.S. 492, 34 S. Ct. 635, 58 L.Ed. 1062; Delaware, L. & W. R. Co. v. Koske, supra; Patton v. Texas & P. R. Co., supra.

Applying these governing principles, we believe the trial court erred in denying defendant's motions for a directed verdict. The evidence, viewed in the light most favorable to plaintiff, supports the following fact statement. He sustained a serious injury when he stumbled over an unusually large clinker which was embedded, partially at least, in defendant's roadbed. At the point where the accident occurred defendant maintains its mainline track which runs in a north-south direction. Parallel to, and east of, that track, defendant maintains a second track which is referred to in the record as the passing track. The latter is connected to the mainline by switches and a cross-over track. Ingress to the passing track is gained over a switch, known as the "house track" switch. The section of the passing track south of the switch is known as the house track. East of these installations, and connected thereto by switches and a cross-over track, are certain facilities of the L. & N. Railroad consisting of its mainline and house tracks. Plaintiff was standing on the roadbed of defendant's house track approximately twenty feet south of the switch when he noticed the leaking condition of the wheat car. The accident occurred at that spot when he turned toward the caboose and took one step. He was regularly employed on the East Saint Louis-Clinton local and worked frequently at this locale. He did not see the clinker before he fell; during cross-examination of plaintiff, the trial judge characterized his testimony as to his knowledge whether, before the accident, the clinker was completely buried in the roadbed in the following language, "It is self-evident that he does not know, if he did not see it." The physical set-up of defendant's house track had been altered in June, 1952, when the level of the house track switch had been raised five inches. In this operation the ties and rails were raised and sufficient ballast in the form of fine cinders and crushed stone was employed to raise the switch to the required level and the grade of the connecting rails to a compensating elevation. There was no direct testimony that this operation affected the roadbed at the point where the accident occurred, i. e., twenty feet south of the switch, but, for purposes of this opinion, we assume that it was affected. Some fifteen cubic yards of ballast were required to accomplish the end result. Further weight is afforded to our assumption by plaintiff's testimony that the footing at that place was level but a little soft. Three different employees testified that they periodically inspected the trackage at this location for defects in the facilities and hazards existing thereon or nearby. One of these witnesses testified that he had, occasionally, discovered large clinkers in the ballast in his territory and had caused them to be removed. Subsequent questioning of the witness elicited the testimony that the "territory" to which reference is made included more than forty miles of defendant's right of way and mainline. There was no testimony as to conditions at the scene of the accident either before or after the occurrence except plaintiff's testimony that he stumbled over an unusually large clinker which caused his injury.

To make a submissible case it was incumbent on plaintiff to adduce substantial evidence that defendant either negligently placed the clinker in the ballast or was chargeable with notice, either actual or constructive, of its presence therein. Bevan v. New York, C. & St. L. R. Co., 132 Ohio St. 245, 6 N.E.2d 982. We think his proof fails in this respect. There is no evidence as to the agency whereby the hazard was placed in or on the roadbed. Defendant's lines are in...

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8 cases
  • Ferguson v. Cormack Lines
    • United States
    • United States Supreme Court
    • February 25, 1957
    ...dispute over the circumstances of the accident, which are set forth in the opinion of the Court of Appeals for the Seventh Circuit, 228 F.2d 257, 258: 'Plaintiff had been employed by defendant in various capacities since about 1925 and was, on July 2, 1952, when the accident occurred, worki......
  • Wiser v. Missouri Pac. R. Co., 45705
    • United States
    • United States State Supreme Court of Missouri
    • April 8, 1957
    ...stumbled over a large, partly buried, clinker in a cinder walkway between two tracks. The Court of Appeals for the Seventh Circuit, at 228 F.2d 257, denied recovery, holding, among other things, that there was insufficient evidence that defendant had placed the clinker there, and that there......
  • Rogers v. Thompson, 44595
    • United States
    • United States State Supreme Court of Missouri
    • January 16, 1958
    ...and handed down the same day. The Webb case reached the Supreme Court from the United States Court of Appeals for the Seventh Circuit. 228 F.2d 257. There the Supreme Court used language almost identical to that used in the Rogers case, viz., 'We have considered the remaining questions, not......
  • Security Insurance Co. of New Haven v. Johnson
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • March 24, 1960
    ...of an unsafe condition created by the negligence of another not indispensable. Constructive notice may suffice. Webb v. Illinois Cent. R. Co., 7 Cir., 1955, 228 F.2d 257, reversed on other grounds 352 U.S. 512, 77 S.Ct. 451, 1 L.Ed.2d 503, rehearing denied 353 U.S. 943, 77 S.Ct. 809, 1 L.Ed......
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