Wetherbee v. Elgin, J. & E. Ry. Co.

• Decision Date: 22 May 1953
• Docket Number: No. 10631.,10631.
• Citation: 204 F.2d 755
• Parties: WETHERBEE v. ELGIN, J. & E. RY. CO.
• Court: U.S. Court of Appeals — Seventh Circuit

204 F.2d 755 (1953)

WETHERBEE v. ELGIN, J. & E. RY. CO.

No. 10631.

United States Court of Appeals Seventh Circuit.

March 20, 1953.

Rehearing Denied May 22, 1953.

Lloyd T. Bailey and Michael H. Lyons, Chicago, Ill., Bailey & Lyons, Chicago, Ill., of counsel, for appellant.

Harlan L. Hackbert, Chicago, Ill., Knapp, Cushing, Hershberger & Stevenson, Chicago, Ill., of counsel, for appellee.

Before FINNEGAN, LINDLEY and SWAIM, Circuit Judges.

FINNEGAN, Circuit Judge.

This is the second appearance of this case on the docket of this court. On May 23, 1951, we reversed a judgment in favor of the plaintiff and remanded the cause for a new trial. 191 F.2d 302.

On the retrial in the District Court, the presiding judge, at the close of plaintiff's evidence, directed that the jury find for the defendant, and on the return of such verdict, entered judgment for the defendant and against the plaintiff. A motion for a new trial was made and overruled. This appeal resulted.

Appellant insists that the trial court erred in directing a verdict for the defendant. The defendant-appellee, on the other hand, asserts that our opinion reported in 191 F.2d 302 precludes the plaintiff from recovering under the facts and circumstances appearing of record in this case.

The defendant-appellee, at the time this appeal from the second trial was docketed, moved in this court to dismiss the appeal. The ground of his motion was that the appeal was in reality an appeal from an order overruling a motion for a new trial. The notice of appeal itself states that appellant appeals, "from the judgment entered in this action," on March 21, 1952. The fact is that the judgment was entered some time in January of 1952, and it was not until March 21, 1952 that the motion for a new trial was disposed of. Under the circumstances we feel that appellee was not misled or prejudiced in any way. The mistake as to the date of the entry of the judgment appealed from was immaterial. Martin v. Clarke, 7 Cir., 105 F.2d 685, 124 A.L.R. 497; Shannon v. Retail Clerks' Ass'n, 7 Cir., 128 F.2d 553; Wilson v. Southern Ry. Co., 5 Cir., 147 F.2d 165.

That leaves for discussion the propriety of the ruling of the District Court on the motion to direct a verdict for the defendant. In our opinion disposing of the first appeal, we considered in detail the defendant-appellee's motion for a directed verdict in that case. We examined the evidence at length. From that examination this court determined that there was no evidence in the record which would warrant a finding that the defendant railroad negligently placed the board which caused the derailment upon or alongside the track, or carelessly allowed it to remain in such spot. We examined also the contentions of the defendant that the fellow employees of the plaintiff, in the switching operation during the course of which the accident happened, were negligent, and that as a result of their said negligence the defendant did not furnish plaintiff with a safe place to work.

We were unable to find any evidence of negligence on the part of the engineer or of the fireman. We were likewise unable to find evidence that disclosed or permitted the inference of negligence on the part of the foreman in charge of operation, or on the part of the section foreman. As to the remaining fellow employee, we said:

"After Venske, the remaining member of the crew whom plaintiff charges with negligence, had signalled for the engine to back up on track K, his next duty was to protect the crossing on north J track just south of the loading dock. The evidence is uncertain as to what course he took between the two points. Plaintiff argues that there was a reasonable basis in the evidence for the jury to have found that Wetherbee felt secure in the belief that Venske, a switchman of 27 years experience, would, in preceding the cars down the track, perform his duty to determine whether the track was safe for the subsequent movement of the cars. Plaintiff also asserts that by placing a ruler on the map in evidence, to show a line between the point where Venske started toward the crossing and the point on the west rail of north J track where he stopped, the line would designate a course within 5 to 7 feet of the west rail on north J track at the point of derailment. Venske testified, `So when I kept walking down that way, I looked over. I couldn\'t see any obstructions or anything.\' He also was asked, `You walked directly from that point down to this point?\' and his answer was, `Yes sir.\'

"Though Venske\'s testimony was indefinite on this important point, we think the evidence was sufficient to take the case to the jury, and that the inference that Venske did pass within 5 to 7 feet of the board on the

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