Hunt v. Illinois Southern Railway Co.

196 Ill. App. 539, 1915 Ill. App. LEXIS 178

Opinions

Mr. Justice Harris

delivered the opinion of the court.

The original declaration filed in this case consisted of five counts. The first two counts based upon the common-law duty of appellant to furnish appellee with a reasonably safe place to work and to keep the switch and side tracks upon which he had orders from appellant to place cars free from obstructions. The third count was based upon the statute of Missouri and the statutory duty of appellant to equip its cars in accordance with the statute. Demurrer was sustained to these three counts and appellee, by leave of .the court, filed three amended counts in lieu thereof.

The first two amended counts are founded on the common-law duty of appellant to furnish appellee a reasonably safe place to work, a switch and side track, upon which he was ordered to place ears, so that the cars might pass over without endangering life or limb of appellee, and charging that appellant disregarded its duty and negligently and carelessly permitted a wire to extend along and over and in close proximity to the side or switch track aforesaid and to swing along in close proximity and against the cars of appellant as they moved along upon said switch or side track, by means whereof, while appellee was in the performance of his duty in pursuance to orders given him, by appellant and while in the exercise of due care, was caught by the wire and thrown from said train into a ravine some 37 feet below, by reason of which he sustained serious and permanent injury; and that he sustained damages in the amount of $25,000.

The third amended count of the declaration was based upon a Missouri statute, making it the duty of appellant to equip its locomotive engine with power drive wheel brakes and fully and properly equip air brake appliances so that the engineer operating locomotives could fully and completely control the air brakes on the cars attached to the said locomotive engine without recourse to the hand brakes so that at least seventy-five per cent, of the cars composing such train should be equipped with air or power brakes, and that appellant neglected its duty in this behalf by reason whereof appellee was required to go on the moving cars and while exercising due care was injured in the manner as charged in the first two amended counts.

The fourth and fifth counts of original declaration charged appellant with the duty of equipping its train in accordance with the Federal statute in regard to power wheel brakes and appliances for the operation of train and brake system and to equip the train with automatic coupling, continuous brakes, etc., so that not less than fifty per cent, of the cars of such train would have their brakes used and operated by the engineer engaged in moving the cars so associated together and trains of cars without requiring the use of hand brakes for that purpose, and not to move or operate the said cars or trains of cars, or the standing cars on its railroad track, switch or side track being used by appellant without being equipped as aforesaid. That said train of cars was being used in moving interstate traffic, being hauled and conveyed from points-in State of Illinois to points in State of Missouri but that appellant neglected its duty in this behalf by reason whereof appellee, while obeying orders of appellant, and in the exercise of due care, was seriously and permanently injured in manner as charged in first two amended counts.

To this declaration appellant filed plea of general issue and the trial proceeded to the offering of evidence by appellant, when by leave of court appellant filed four special pleas. A demurrer was sustained to the third special plea. The other three averred in substance:

First. That track where injury occurred was not the track of appellant, nor under the control of appellant; that the wire that caused the injury was not the wire nor under the control of appellant.

Second. That the track on which injury occurred was the track of the St. Louis Smelting Company.

Third. That appellant did not own, use or operate railroad and bridge over Flat River and for more than 1,000 feet on either side of said River, and did not have permission to use it's cars on or over same.

A trial upon the issues so joined resulted in a verdict in favor of appellee for $10,000. Motion for new trial overruled, judgment on verdict, and this appeal.

Some of the undisputed facts are: That appellee, a man thirty-two years of age at the time of the trial, entered the service of appellant as train conductor in July, 1912. That he was at that time and prior to the accident had been a man in good health and physically able to perform manual labor; that the railroad of appellant extends from Salem, Illinois, to Bismark, Missouri, with a branch line to Chester, Illinois. That appellee .did in the handling of trains for appellant have charge of trains containing cars whose destination was from points in Illinois to points in Missouri and vice versa. At the time bf the injury appellee left Little Rock yards at 8:30 p. m., September 16, 1912, in charge of a train which had three cars of coal destined from a point in Illinois to Bismark, Missouri. That appellee at Little Rock yards, which is St. Glenevieve, Missouri, had seventeen empties, known as “chat cars” destined to what was known as the “National switch” at Flat Eiver, Missouri. That about 7:30 p. m. of said day appellee received from appellant a message as follows: “Conductor Extra 312 South leave your chat empties on National switch.” That appellee arrived with his train at the National switch, Flat Eiver, Missouri, at about 11:45 p. m., of said day. The chat cars were next to the caboose. The caboose was cut off on the main track and the train was pulled down over the switch leading to the National switch. The rear brakeman Merritt, under instructions of appellee, walked back to see if switches were properly set and if there were any cars there. There were cars standing on the main line of this National switch. There was also behind these chat cars a car with an iron tank chained to the rails. About five car lengths from where the National switch leaves the main track of appellant, there is another switch which will hold twelve or fourteen cars, and on that siding there was about twelve to fourteen loads of chat, but by lining the switches for this siding they could shove around the car that was chained to the rail. The brakeman made a coupling at the end of the cars next to the tracks of appellant on the siding. Appellee walked to rear end of the cut of cars and gave the back up signal for them to couple up. The brakes were set on the loads and the éngine could not shove them back. Appellee and rear brakeman commenced releasing brakes on these loads. There was not room to place seventeen cars on the National switch without moving the cars on the siding of the National switch. The engineer to move this train of cars started all cars forward, then in a quarter or a half car length reversed his engine and got them to moving back to the National switch. Appellee moved to rear end of train and the train was then moving towards National Lead Company’s mine rapidly. Appellee commenced to set brakes. At that time the cars were on the track leading to the bridge or trestle. Appellee moved to the side of the car, and was looking west when a wire over the left shoulder began to draw down and forced appellee to lose his grip and fall 37 feet over the bridge or trestle into the bed of Flat Biver. That he suffered an injury causing pain and for a time the lower limbs were paralyzed.

The National switch, as it is designated, is composed of a main line and side track used as interchange tracks between appellant and the St. Louis Smelting and Befining Company, a company having a place of business near Flat Biver, and a railroad operated by electricity arid steam over the bridge and trestle mentioned at Flat Biver. The ownership and possession of these tracks, their location and distances are not in dispute. The dispute arises over the right or the fact whether or not appellant, its servants and employees were confined in their work to the interchange tracks or whether or not when the interchange tracks were full they could and did use the line being a continuation of the siding between the two tracks across the bridge, appellant contending the employees had no such privilege and appellee insisting they did. About 200 feet from where the switch track leaves the main line of appellant there is a siding branching off from the switch track for a distance of 1080 feet and then connects with it again and the switch track with the line of Smelting Company 753 feet east of the bridge in question. There is about a two per cent, downward grade towards bridge from east and about four per cent, grade towards bridge from the west. That the cars in question were backed by the engine and train from this siding on to the switch track and from the switch track on the track in the use of Smelting Company over the bridge. That there were trolley wires over this line over the bridgeand telephone wires along said line connecting the smelting works with the depot of appellant at Flat Biver. That the telephone wires were not in use at the time in question and were out of repair.

The assignment of errors argued by appellant are:

First. That it is not denied that appellant was operating an interstate railroad and that appellee was at the time engaged in interstate commerce; that the Federal Employer’s Liability Law of 1908 took possession of the field to employees engaged in interstate transportation by rail and all State laws are superseded.

Second. That it was error to admit in evidence the statute of the State of Missouri and to incorporate it in an instruction directing a verdict.

Third. There is no liability on the part of appellant in this case for the reason that the engine and the cut of cars making this switching movement came to a full stop and were uncoupled by the brakeman, permitting them to roll down the steep incline. There was no speed to control. The engine and cars attached to it were standing still.

Fourth. Errors in admitting and refusing to admit evidence.

Fifth. Errors in giving and refusing instructions.

The first, second and fifth assignments of error argued by appellant were so closely associated together during the trial of this case and in the application of the law under the other assignments so that we may consider them as one. We will discuss and consider them first, as to the relation of the application of the Federal Employer’s Liability Law and the Missouri Safety Appliance Act both pleaded in the same declaration. The jury instructed upon both statutes while under the evidence the employment in which appellee was engaged was interstate and not in dispute.

The provisions of the Federal Employers’ Liability Act are limited to injuries occurring while the particular service in which the employee was engaged was a part of interstate commerce. (Illinois Cent. R. Co. v. Behrens, 233 U. S. 473, 10 N. C. C. A. 153.) That the employee of a railroad company in the handling of a train in which it is admitted are three cars, among those being then moved, which were then engaged in interstate commerce, is a prima facie case made by nncontradicted testimony of the fact that appellee was then engaged in interstate commerce. (Devine v. Chicago, R. I. & P. Ry. Co., 266 Ill. 248.)

Appellant with its records or any competent evidence could have met this prima facie ease and raised the question of fact whether or not appellee was at the time engaged in interstate or intrastate commerce. Therefore while appellee might properly file a declaration to meet the evidence, whatever it might be, the appellant was not bound to make objections to the declaration for that reason. It is not a matter of election, if it becomes a question of fact, it is to be submitted as any other question of fact. If, however, as in this case, it is not a matter of dispute but admitted it is a question of law, and the injury occurring in interstate commerce, the Federal act controls and a recovery cannot be had under the common or statute law of this State; the Federal act is exclusive and not merely cumulative. (Wabash R. Co. v. Hayes, 234 U. S. 86, 6 N. C. C. A. 224; Seaboard Air Line R. Co. v. Horton, 233 U. S. 492, 8 N. C. C. A. 834; Devine v. Chicago, R. I. & P. Ry. Co., 266 Ill. 248.)

The contention of appellee that both the Federal and Missouri acts are in force at one and the same time and a suit and a recovery may be had under either act on the same state of facts is based upon the ease of Luken v. Lake Shore & M. S. R. Co., 248 Ill. 385. There is no conflict between this case and the authorities heretofore cited. In the last case the question being considered by the court was whether or not the statute of the State being in harmony with, the Federal act could be considered when the injury'complained of occurred while the party injured was engaged in intrastate commerce on a railroad that was engaged, generally, in interstate commerce. It is necessary to consider the contention of appellee that appellant did not in the trial court raise the questions here urged as grounds for reversal.

We have heretofore referred to the fact that it was not necessary or proper for appellant to raise objections to the declaration on the ground alone that there was joinder of counts under the Federal act, Missouri act and common-law duty. Appellee made the proof of this train handling, at the time, interstate business. Appellee offered the Missouri statute in evidence. Appellant objected to the offer in the following language: “Objected to by defendant for the reason that those sections can have no application to this case; for the reason that this train was stopped and the engine was at the time completely cut off from the rest of the train when these cars started to rolling; there is no doubt about the facts in this case now.” Appellee insists that this objection is limited to the ground that the train was stopped and engine cut off. As we read the objection it is based first on the ground the statute has no application, and second on the ground the train was stopped and engine cut off. There was no doubt about the application of the Federal law from the evidence. The Missouri statute had no application, was incompetent, and the objection should have been sustained.

The argument of appellee that a verdict will not be set aside if supported by one good count does not apply, especially when the court gave an instruction for appellee based upon the Missouri statute and directing a verdict which under the admitted facts was error. Exceptions were duly preserved to the giving of this instruction and assigned as error in the motion for new trial. (Patry v. Chicago & W. I. R. Co., 265 Ill. 310.)

Appellee asked and the court gave instruction for appellee Number 3 (which is too long to be copied into this opinion), based upon the third amended count and in which the Missouri statute is set out at length, and the jury are told that if they believe from the evidence appellant had violated that statute and appellant’s negligence in that regard had caused the injury they may find appellant guilty under third amended count.

The appellant offered, with other instructions, a separate instruction under each count to find the defendant not guilty, which were refused. The offer of these instructions at this time, while they should have been given as to the three amended counts, there being left two good counts to support a verdict, would not be reversible error. However, the giving of appellee’s third instruction based upon a count under the admitted facts that would not support a verdict, the jury might believe appellant had not violated the Federal law but had violated the Missouri law, and if so they were told to find appellant guilty. We are of opinion that the giving of this instruction was error.

The errors in admitting in evidence the Missouri statute and the giving of appellee’s instruction No. 3, based upon the Missouri statute, were reversible errors.

The third error argued by appellant is in effect that the court committed error in not giving the peremptory instruction. There were sufficient facts .in dispute as to how this injury occurred, who had control of the line where the injury occurred, and whether the coupling was defective, uncoupled or broken, to be submitted to the jury.

The fpurth contention, errors in admitting evidence but two are argued. That the court refused to permit cross-examination of witness Merritt as to statements made by witness in writing. The record does not disclose what the statement was that appellant claimed was made, and without such showing the court’s ruling on the same was not error. The evidence offered by appellee, the exhibition of the fourth and fifth lumbar of the spinal column and the explanation of the X-ray pictures, were properly permitted and admitted.

The importance of this case and the principles involved require an accurate application of the law. .

Therefore for and on account of the errors sustained, the judgment will be reversed and cause remanded.

Reversed and remanded.

Mr. Justice McBride took no part in the consideration and decision of this case.