Werner v. Illinois Cent. R. Co.

• Decision Date: 15 April 1941
• Docket Number: Ag. No. 9.
• Citation: 33 N.E.2d 121,309 Ill.App. 292
• Parties: WERNER v. ILLINOIS CENT. R. CO.
• Court: United States Appellate Court of Illinois

309 Ill.App. 292

33 N.E.2d 121

WERNER

v.ILLINOIS CENT. R. CO.

Ag. No. 9.

Appellate Court of Illinois, Fourth District.

March 1, 1941.

Rehearing Denied April 15, 1941.

Appeal from City Court of East St. Louis, St. Clair County; William F. Borders, Judge.

Action under the Federal Employers' Liability Act by Paul W. Werner against the Illinois Central Railroad Company for injuries sustained by plaintiff as the result of his being struck by a dwarf semaphore signal while riding on the side of a box car in the course of his employment with defendant. From a judgment for plaintiff, the defendant appeals.

Affirmed. Kramer, Campbell, Costello & Wiechert and Norman J. Gundlach, all of East St. Louis (E. C. Craig, V. W. Foster, and Charles A. Helsell, all of Chicago, of counsel), for appellant.

Mark D. Eagleton and Roberts P. Elam, both of St. Louis, Mo., Joseph B. McGlynn, of East St. Louis (McGlynn & McGlynn, of East St. Louis, of counsel), for appellee.

DADY, Justice.

This is an appeal by defendant Illinois Central Railroad Company from a verdict and judgment in favor of plaintiff, Paul W. Werner, in an action under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., for damages for personal injuries sustained by plaintiff at Pana, Illinois, as the result of his being struck by a dwarf semaphore signal while riding on the side of a box car in the course of his employment with defendant. The parties concede that the provisions of the Federal Employers' Liability Act apply to this case.

The specific negligence charged in the complaint is that defendant maintained and used said dwarf signal in close and dangerous proximity to defendant's main line track so as to endanger employees riding on the sides of cars moving on the track and that defendant knew or, in the exercise of ordinary care, should have known of such dangerous condition in time to have remedied the same prior to plaintiff's injury, but negligently and carelessly failed so to do.

Defendant's answer denied all charges of negligence, alleged that plaintiff's injuries were caused by his sole negligence and that plaintiff, through his employment, assumed the risk of his injuries. Defendant also pleaded in the alternative, for the purpose of reducing damages, that plaintiff was guilty of contributory negligence.

Plaintiff was injured on August 21, 1936, at about 9:20 A. M. on a clear day. The injury occurred near defendant's station at Pana, at which point defendant's main line consists of a single straight track practically level, running in a general northerly and southerly direction. A short distance north of this station the tracks of another railroad cross defendant's main line, and south of this crossing there was located a control tower and various semaphore signals which were operated from the control tower and controlled the movements on defendant's main line. Approximately 80 feet south of this crossing, and just west of defendant's station, were the points of a switch in defendant's main line track, which switch led to the south and west into defendant's “siding” or “passing track”, which passing track then ran southerly, parallel to and west of the main line track.

The dwarf signal involved in the accident was located 220 feet south of the switch points and between defendant's main line track and the side track. This dwarf signal stood on a concrete block which was 5 inches above the ground level and consisted of an iron box-like base, from the top of which there projected upward a rectangular vertical iron column 12 inches high, which supported a box-like iron head on top, to which was attached a movable semaphore device, the top of such iron head being 41 inches above the ground. That part of the signal semaphore arm which projected to the east beyond the head of the signal for a distance of some three to six inches, was made of soft rubber and is referred to as a “paddle”. This dwarf signal had nothing to do with regulating or controlling movements on the main line track, and had no connection with the work or movement in which plaintiff was engaged.

Plaintiff, at the time of the accident, was employed by defendant as a brakeman, and was part of a train crew engaged in moving three freight cars in a northerly direction on the main line track past the dwarf signal. The engine facing south was pushing three cars north of it, and plaintiff was riding on the west side of the south end of a box car which was the first, or lead car, in the movement. The conductor of the crew, one Baughman, was riding on the same car, also on the west side but at the north end of the car.

The end of the box car ridden by plaintiff contained a long ladder, which would enable a person to climb to the top of the car. This ladder consisted of a series of seven horizontal grab-irons spaced at regular intervals from the bottom sill of the car to near the roof. The bottom grab-iron of the ladder projected 4 3/8 inches from the body of the car. At the bottom of this ladder was a sill step or “stirrup”, consisting of a U-shaped strap of metal hung from the bottom sill of the car, so that the bottom part of the step was about 27 9/16 inches above the ground.

The distance between the bottom of the stirrup and the lowest grab-iron was 16 1/4 inches and the measurement from the bottom of plaintiff's foot to his knee was approximately 20 1/2 inches, and when plaintiff was standing on this stirrup this last mentioned grab-iron projected out from the side of the car opposite plaintiff's leg at a point about four inches below plaintiff's knee.

Plaintiff testified that at the time of the accident he was standing in an upright position on this stirrup, with his left hand on the third grab-iron and his right hand on the fourth grab-iron from the bottom of the ladder; that he was in the same position he had been in on numerous prior occasions; that he had assumed this position when the movement of the cars started some several hundred feet south of the dwarf signal and had kept this position until the time he was struck. As the cars were moving north plaintiff said he was looking northerly and upwards toward the signal tower as a part of his regular duties, watching for a possible change in signals, and that he did not then see the dwarf signal. The speed of the train at this time was about 10 or 12 miles per hour. Plaintiff stated that as he passed the dwarf signal the signal struck the calf of his left leg and knocked him off the car to the ground and he was run over.

A flagman at a crossing a short distance south of the dwarf signal testified that he had observed the box car on which plaintiff was riding at the time it passed such crossing, and that plaintiff was then riding straight up against the car in an upright position, and that that was the same position brakemen would ordinarily ride in when passing that particular place. This witness did not see the plaintiff struck by the signal.

The conductor, Baughman, testified that at the time of the accident he was standing on the stirrup of the short ladder located at the north end of the car. This short ladder differed from the long ladder on which plaintiff was riding in that there were only two grab-irons, the lower one being located from 16 inches to 18 inches above the sill of the car. Baughman stated that he turned his head around just as plaintiff was getting struck and at this time plaintiff was hanging on the long ladder of the car.

Plaintiff called Joseph A. Osborn, a consulting engineer who had practiced his profession with the American Car & Foundry Company for a number of years, who testified as to certain measurements he had made of defendant's dwarf signal device and of a car of the same type, class, series and dimensions as that upon which plaintiff was riding when injured. Osborn testified that the maximum clearance between the iron part of the dwarf signal and the outer edge of the bottom grab-iron of the long ladder of a box car identical to that on which the plaintiff was riding, at a point where the two would become adjacent to one another, and at the point where plaintiff was injured, would be 10 inches, whereas, the maximum clearance between the extreme east edge of the rubber portion of the signal arm and the outer edge of the lower grab-iron measured in the same position would be only four inches. Defendant produced no testimony as to these measurements. The witness Osborn further testified over objection that there was no practical necessity for this signal to be either as high as it was or as close to the main line track and that defendant could have either lowered the signal or moved the signal along with a portion of its side track to a point further west of the main track along its right of way with little expense and without interfering with the function of the signal and the tracks. He also testified that the box car upon which plaintiff was riding was an unusually wide box car and was about a foot wider than the standard “P” box (car) and was wider than Illinois Central cars. The car in question was one of a series of 2339 Union Pacific steel box cars, each having the same equipment and dimensions.

The plaintiff at the time of his injury had had 33 years' practical experience as a railroad man, and had been employed by the defendant for a period of 24 years. During this latter time he had been in the Pana Yards numerous times and was familiar with all of the signals located there, including the dwarf signal in question. Plaintiff further stated that he had been familiar with the dwarf signal involved in the accident over a period of 24 years, and that it was in the same place during all of that time and was always in the same position with reference to the track, but that he had never measured the distance between the signal and the track. He also testified that he had ridden by this dwarf signal other times previous to the day of his injury on the west side of box cars,...