Williams v. New York Cent. R. Co.

• Decision Date: 06 July 1948
• Docket Number: Gen. No. 44041.
• Citation: 81 N.E.2d 15,335 Ill.App. 159
• Parties: WILLIAMS v. NEW YORK CENT. R. CO.
• Court: United States Appellate Court of Illinois

335 Ill.App. 159

81 N.E.2d 15

WILLIAMS

v.NEW YORK CENT. R. CO.

Gen. No. 44041.

Appellate Court of Illinois, First District, Second Division.

June 21, 1948.

Rehearing Denied July 6, 1948.

Appeal from Superior Court, Cook County; Donald S. McKinlay, Judge.

Action by Harry E. Williams against the New York Central Railroad Company to recover damages resulting from injuries sustained by plaintiff while employed as a brakeman on one of the defendant's freight trains engaged in interstate commerce. From a judgment for plaintiff for $40,000, the defendant appeals.

Judgment reversed without remandment.Sidney C. Murray, William A. Morrow, Marvin A. Jersild, and Lloyd W. Bowers, all of Chicago, for appellant.

Edward B. Henslee, of Chicago, (Walter N. Murray and Melvin L. Griffith, both of Chicago, of counsel), for appellee.

FRIEND, Presiding Justice.

Plaintiff brought an action at law under the Federal Employers' Liability Act and Safety Appliance Act to recover damages resulting from injuries sustained by him while employed as a brakeman on one of defendant's freight trains engaged in interstate commerce. Defendant's motions for a directed verdict at the conclusion of plaintiff's case and again at the close of all the evidence were overruled. A motion thereafter made by defendant separately to direct a verdict as to each of the six charges of negligence, was also denied. After the jury had found for plaintiff and assessed his damages at $40,000, the court entered judgment on the verdict. Motions for judgment notwithstanding the verdict and for a new trial having been made and overruled, defendant has prosecuted this appeal.

The accident occurred on November 23, 1944, about 6:30 A.M. Plaintiff, an experienced brakeman who had been employed by defendant for 31 years with a clear record and promoted successively from machinist helper to handyman, brakeman and conductor, was on the day of the accident a member of the crew of a freight train made up in the freight yard at Bellefontaine, Ohio. There were 13 tracks in the yard, all running north and south. The train here involved was on track No. 5. The yard office was at the north end of that track. Immediately to the north of the yard office, in line with track 5, was a tower 50 feet high, on which were mounted several flood lights focused toward the south to cover the entire yard. When plaintiff arrived at the yard office on the morning of the accident the train had been made up by the crew. The north end of the train was about 15 or 20 car-lengths south of the office, and the caboose at the south end of the train was about 45 or 50 car-lengths from the yard office. When the crew made up the train and left it on track No. 5 several hand brakes had been left on to prevent the train from rolling down the natural slope of the yard before the engine was coupled on, after which it could be held by the air brakes.

Plaintiff's first duty that morning was to walk down beside the train, making a running inspection of the cars and finding the set brakes. He walked down on the west side of the train, made his inspection and released all the brakes except those on the caboose and the five cars immediately to the north thereof. He was required to leave these brakes set until the engine was coupled on and enough air passed through the train to hold it. The car which caused the accident was No. 291872. He testified that he saw nothing about that car as he walked along the ground beside it to suggest that it was an open-top car. He finally reached the caboose where he performed further duties while the air was coming on. That having been accomplished, he left the caboose to release the brakes. He first released the brake on the caboose and the two cars just ahead of it. The second car was Illinois Central car No. 16483. The brake was on the south end of that car. The next car to the north was defendant's car No. 291872, the so-called open-top box car involved in this case. After releasing the brake on car No. 16483 he walked unhurriedly north along the running board on top of that car. The flood lights nearly half a mile away were in direct line of his movement and threw their light in his face. He held an oil lantern in his hand which under ordinary circumstances would throw a light about 10 feet ahead of him. When he approached the north end of the running board on car No. 16483 he shone his lantern on the end of the next car, No. 291872. The atmosphere was dark and smoky at the time. He testified that the flood lights blinded him; it was like ‘looking at an automobile headlight.’ The car looked like any other box car, and defendant said that there were no signs or markings to warn him that the roof and running board had been removed. He stepped, as he had always stepped, across the space between the two cars, usually about one and one-half feet, and instead of stepping on the running board of the car ahead, as he expected to, he stepped off into space, landed on his feet at the bottom of car No. 291872, was thrown to the floor of the car on his neck and shoulders, and injured. He managed to get to the door on the east side of the car, which was open. Handley, the inspector, attracted by his call for help, carried him to the caboose.

Car No. 291872, when delivered to defendant, was a box car with a roof and running board along the top. The roof and running board were removed by defendant in 1937. Thereafter it was called a roofless or open-top box car. It is first urged that defendant, in using a railroad car from which it had removed the roof and running board without the consent of the Interstate Commerce Commission, violated sections 11-16 of the Safety Appliance Act (45 U.S.C.A.), and was therefore liable to plaintiff regardless of any negligence on plaintiff's part. The first question therefore presented is whether or not the commission regulation required a car like New York Central No. 291872 to be equipped with a running board. Both sides agree that Congress delegated to the Interstate Commerce Commission the enforcement of the Safety Appliance laws relied upon by plaintiff (45 U.S.C.A. § 15). Lee W. Dobbins, an employee of the New York Central Railroad System for about 30 years, who at the time of the trial was the division general car foreman, testified that he was thoroughly familiar with the rules, regulations, designations and requirements of the commission having to do with the equipment of railroad cars, the use and installation of running boards on freight cars, and particularly so-called open-top or roofless box cars, and that there had never been issued, promulgated or put in force at any time by the commission any rules, regulations, or directives requiring running boards on so-called open-top or roofless box cars. It appears that the commission regulations prescribing safety-appliance standards were set out in the commission's order of March 13, 1911, and are found in Code of Federal Regulations under Title 49, Transportation and Railroads, Section 131.1-131.20, of which it was held in Lilly v. Grand Trunk Western R. Co., 317 U.S. 481, 63 S.Ct. 347, 87 L.Ed. 411, the court will take judicial notice. With respect to freight cars, these regulations require running boards for each ‘box or other house car,’ tank car and caboose car (sections 131.1-131.11). They contain no such requirement as to ‘hooper cars and high- side gondolas with fixed ends' (section 131.2), for drop end high side gondola cars (section 131.3), for fixed end low side gondola and low side hopper cars (section 131.4), for drop end low side gondola cars (sec. 131.5), nor for flat cars (131.6), for the obvious reason that none of these cars has a roof. Section 131.18 states that ‘cars of construction not covered specifically in the foregoing sections in this part, relative to handholes, sill steps, ladders, hand brakes and running boards may be considered as of special construction, but shall have as nearly as possible, the same complement of handholds, sill steps, ladders, hand brakes and running boards as are required for cars of the nearest approximate type.’ It will be noted that these rules do not prohibit the removal of roofs from box cars and their adaptation to other purposes; in fact the rule indicates that the commission contemplates types of cars not described therein. The fact that it described ‘high side gondolas with fixed ends' as ‘cars with sides more than 36 inches above the floor’ (131.2) indicates that there is authority for the construction and use of a car like NYC 291872; and since the car in question was neither a tank car nor a caboose car, a running board is not required unless it is a ‘box or other house car.’ Defendant cites various dictionary definitions to indicate that a house car is a box car (Webster's New International Dictionary, 1931), and that a box car is defined as a ‘roofed freight car, usually with sliding doors in the sides and sometimes with a small door in one end for loading and unloading long articles.’ In State v. Green, 15 Mont. 424, 39 P. 322, the court quotes the Century Dictionary definition of a box car as “an inclosed and covered freight car.” See also Encyclopedia Britannica, 14th Ed., Vol. 3, p. 985, and Funk & Wagnall's New Standard Dictionary, 1937, for definitions of a box car as being ‘a roofed freight car with enclosed sides.’

The only case called to our attention which considered this question is Goulette's Adm'r v. Grand Trunk R. Co., 93 Vt. 266, 107 A. 118, wherein a directed verdict for defendant was affirmed. It was there contended by plaintiff's intestate that decedent fell from a car without a running board. That car, No. 1765, as shown by the opinion, ‘was a flat bottom car which had been converted into a rack car by the erection of 12 stakes 9 feet high on either side and of 5 at each end, of the same height. * * * They were attached on the sides to sockets in the car beam * * *. The car was equipped with end and...