Woods v. New York, C. & St. L.R. Co.

• Decision Date: 02 December 1949
• Docket Number: Gen. No. 44745.
• Citation: 339 Ill.App. 132,88 N.E.2d 740
• Court: United States Appellate Court of Illinois
• Parties: WOODS v. NEW YORK, C. & ST. L. R. CO.

339 Ill.App. 132

88 N.E.2d 740

WOODS

v.NEW YORK, C. & ST. L. R. CO.

Gen. No. 44745.

Appellate Court of Illinois, First District, First Division.

Nov. 21, 1949.

Rehearing Denied Dec. 2, 1949.

Action by William Edward Woods against the New York, Chicago & St. Louis Railroad Company for injuries sustained by plaintiff as a brakeman when he was brushed off the tender of a locomotive on which he was riding by a coal car on an adjacent track.

Judgment for plaintiff for $10,000 in the Superior Court of Cook County, Wilbert F. Crowley, J., and the defendant appealed.

The Appellate Court, Niemeyer, J., reversed the judgment holding that plaintiff failed to sustain the burden of proof under his causes of action based on violations of the Safety Appliance Act and the Boiler Inspection Act, the defendant admitting its liability under the Federal Employers' Liability Act.Winston, Strawn, Shaw & Black, Chicago (Douglas C. Moir, Chicago, George B. Christensen, Chicago, Edward J. Wendrow, Chicago, of counsel), for appellant.

Harry G. Fuerst, Chicago (Schwartzberg & Barnett, Chicago, Harry G. Fuerst, Chicago, of counsel), for appellee.

NIEMEYER, Justice.

Defendant appeals from a judgment for $40,000 entered on a verdict in a personal injury action brought under the Federal Employers' Liability Act, 45 U.S.C.A. §§ 51-60, Federal Safety Appliance Act, 45 U.S.C.A. § 11, and, by amendment made during the trial, the Federal Boiler Inspection Act, 45 U.S.C.A. § 23.

Plaintiff was injured in defendant's Fort Wayne, Indiana, yard on November 14, 1946 at about 11:50 p. m. in the performance of his duties as a road brakeman, engaged with his crew, consisting of an engineer, fireman, conductor and another brakeman, in backing an engine and tender on a main track (O.P. Main) in order to couple to an interstate train made ready by yard switchmen for movement to Bellevue, Ohio, by plaintiff's crew. The main track runs cast and west and the engine was backing toward the west. A spur track came off the main track at an angle toward the south and west. Plaintiff was on a stirrup on the southwest corner of the tender. When close to the junction with the spur track he saw a coal car spotted near the main track and attempted to get around the corner of the tender to a wheel on the back. He was brushed off as the tender passed the coal car and sustained injuries for which he brought suit. Defendant admits its liability under the Federal Employers' Liability Act in failing to provide the plaintiff with a reasonably safe place in which to work and in failing to provide sufficient clearance between the spotted coal car and the moving engine and tender. It denies liability under the Safety Appliance and Boiler Inspection Acts. As defined by instructions to the jury given at plaintiff's request, defendant's liability under the first of the two acts last mentioned is based on its alleged failure to provide efficient hand brakes on the coal car, and under the second act upon its alleged failure to equip the rear of the tender with an efficient and properly focused light.

On appeal defendant's principal contentions are, that the court erred in giving instructions permitting recovery under the Safety Appliance and Boiler Inspection Acts because there is no evidence of the violation of either, and, that the damages awarded are excessive.

The testimony relating to the brakes on the coal car is limited to plaintiff's statement that on going to work around 9:15 to 9:30 p. m. he saw a coal car on the spur track about 10 feet from the switch and that a regular yard brakeman was setting the brake. As stated in Myers v. Reading Co., 331 U.S. 477, 67 S.Ct. 1334, 91 L.Ed. 1615, cited by plaintiff, there are two recognized methods of showing the inefficiency of hand brake equipment-adducing evidence to establish some particular defect, or, showing a failure to function, when operated with due care, in the normal, natural and usual manner. Plaintiff makes no claim under the first method. The evidence fails utterly to meet the requirements of the second. The court takes judicial notice that a car on a sleping track will move downward unless an efficient hand brake is properly applied or set. No inference of inefficiency of the brake can be drawn from the mere fact that plaintiff was a switchman setting the brake-an incomplete operation-when the car was 10 feet from the switch and that several hours later the car was so near the main track as to interfere with the operation of engines and cars on it. It must first be shown that the brake was actually set, with due care and in a normal, natural and usual manner. It must also be shown that the slope of the spur track was such as to cause a spotted car to move or drift toward the main track unless an efficient brake was properly set. The burden of making this proof was upon plaintiff. As conceded upon oral argument, defendant is under no obligation to adduce any evidence until plaintiff has made a prima facie case. Plaintiff did not make the necessary proof. The only evidence as to a slope of the spur track is the testimony of three members of plaintiff's crew, who testified as follows. The conductor said the spur slopes to the west; the fireman that...