Wagner v. Chicago & Alton Railroad

180 Ill. App. 196, 1913 Ill. App. LEXIS 754

• Court: Appellate Court of Illinois
• Decided: May 8, 1913
• Docket: Gen. No. 18,032
• Status: Published

Opinion

Mr. Presiding Justice Gridley

delivered the opinion of the court."

First, It is contended by counsel for defendant that plaintiff was guilty of contributory negligence, which precludes his recovery. Plaintiff was required to exercise that degree of care for his own safety that an ordinarily prudent person would exercise under the same or similar circumstances. Counsel. urge that plaintiff was not exercising ordinary care in riding on the side of the car, standing on the ladder step underneath the door sill, and that he could have ridden on the engine or upon some other part of the train. The engine was in the rear of the train, pushing the five baggage cars around this curved track and towards a net-work of other tracks, where there were many switches and signals. Although the switches were being operated by towermen, plaintiff did not know upon what track his train would be run after leaving the curved track. He was the conductor in charge of the train, and it appears from the evidence that it was his duty to keep a lookout ahead to see where the train was going and to ascertain whether the signals were set for or against his train, and be in a position where he could signal the engineer to stop or go ahead, that neither he nor the engineer had gone over the curved track before, and that as he approached the post he was “looking ahead for signals.” Because of the construction of the front end of the front baggage car, where Coleman was riding, plaintiff could not ride there and at the same time be in a position to be seen by the engineer and be able to signal the engineer. All that Coleman could do was to signal the engineer by means of Ms “air gun” to stop the train; he could neither see nor be seen by the engineer. Plaintiff, when the train started to move around the curved track, probably decided to ride in the position he did because, under the circumstances, it seemed to him to be the most available place to keep a lookout ahead and at the same time be able to quickly signal the engineer. And, in our opinion, except for the dangerous proximity of the post to the track, it was as safe for an experienced switchman as any other place in the forward part of the train. It does not appear that he knew or could have known of the dangerous proximity of the post at the time he took Ms position. Furthermore, the testimony shows that it was customary for switchmen to ride in that position. Under the facts of this ease we cannot say, as a matter of law, that plaintiff was guilty of negligence in tating the position he did upon the train. But counsel further urge that plaintiff had actual knowledge of the presence of the post for a sufficient length of time before his injury to have avoided the accident, and argue that, as he saw the post when 100 feet away from it and contmuously as he approached it, he should have discovered its dangerous proximity to • the track and jumped from the moving train before reacMng the post, and that he was guilty of contributory negligence in not maMng that discovery and so jumping. It is at least doubtful if he could have determined the distance of the post from the track until he got very close to it. The post was on the inside of the curved track and there was no car opposite the post until the car upon which he was riding reached the post. If it had been a foot further away from the track he probably would not have been injured. Owing to the length of the car and the curve of the track, the forward end of the car, when even with the post, probably did not overhang the rail much, if any, but when that part of the car upon which plaintiff was riding had reached the post the “overhang” was probably considerable. Any prudent person might easily be deceived under such conditions, and we cannot say, as a matter of law, that plaintiff was guilty of negligence in not jumping, from the train. It was for the jury to say, under all the facts and circumstances of this case, whether or not plaintiff was guilty of negligence, and it is evident from their verdict that they did not think so. North Chicago St. R. Co. v. Dudgeon, 184 Ill. 477, 486; Illinois Terminal R. Co. v. Thompson, 210 Ill. 226, 235; Chicago & A. R. Co. v. Stevens, 189 Ill. 226; Chicago & A. R. Co. v. Johnson, 116 Ill. 206; Whalen v. Illinois & St. L. Railroad & Coal Co., 16 Ill. App. 320; Texas & P. R. Co. v. Swearingen, 196 U. S. 51; Indianapolis Traction & Terminal Co. v. Holtsclaw, 41 Ind. App. 520; Johnston v. Oregon S. L. & U. N. Ry. Co., 23 Ore. 94, 105. And we cannot say that their verdict is manifestly against the weight of the evidence.

Second. It is also contended that the evidence fails to prove that defendant was guilty of any negligence which was the proximate cause of the injury. Defendant by special plea denied the ownership or control of the curved track and also denied that the. C., B. & Q. had been invited by defendant to operate its engines and cars upon the track. We think that the evidence shows that defendant owned, possessed and operated the curved track, and that the O., B. & Q. operated the train in question over said track at the invitation of defendant and for a valuable consideration. Plaintiff’s presence upon the track was therefore contracted for, and we think that defendant owed him the duty of exercising ordinary care in maintaining the track and its surroundings in a reasonably safe condition for the purpose for which it was provided and used. “A railroad company owning a railroad which permits another company to use the road is liable for injuries to persons on the trains of the latter due to the defective condition of the roadbed, track, or bridges, or to the defective condition or negligent management of its switches, although the injured persons were employes of the latter company.” 33 Cyc."711; Chicago Terminal Transfer R. Co. v. Vandenberg, 164 Ind. 470. And we think that the evidence shows that the curved track and the semaphore post were in such dangerous proximity to each other as to warrant the jury in finding the defendant guilty of negligence in that regard. South Side El. R. Co. v. Nesvig, 214 Ill. 463; Illinois Terminal R. Co. v. Thompson, 210 Ill. 226; Chicago I. R. Co. v. Russell, 91 Ill. 298; Illinois Cent. R. Co. v. Welch, 52 Ill. 183; Chicago, B. & Q. R. Co. v. Gregory, 58 Ill. 272. But counsel for defendant argue that the semaphore post was owned, operated and maintained by the C. & W. I., and was a part of the interlocking system of that company, that defendant did not place the post where it was and had no control over it, and, therefore, defendant was not guilty of negligence because of the dangerous proximity of the post to the track. We cannot agree with counsel’s conclusion.

“It is not essential to the liability of the company in case an injury is occasioned by some object or structure on premises adjoining the right of way, that the company should have itself placed or participated in placing the object or structure on the adjoining premises. If the company has notice of the existence of any such object or structure, or if notice may be presumed from length of time since the object was placed thereon, or if the company is otherwise chargeable with notice, it is negligence on the part of the company to continue to operate its trains in such dangerous proximity to"such objects or structures.” South Side El. R. Co. v. Nesvig, 214 Ill. 463, 470; Illinois Terminal R. Co. v. Thompson, 210 Ill. 226, 231.

Third. It is further contended that, inasmuch as “the manner of constructing a railroad is an engineering question * * * and * * not a question for a court to submit to a jury” (Chicago & E. I. R. Co. v. Driscoll, 176 Ill. 330, 334), the trial court erred in allowing the case to go to the jury. We do not think that the principle invoked is applicable to the present case. In several of the earlier Illinois cases, where the poles or other obstructions were placed by the companies upon their own right of way, no suggestion appears to have been made that the companies were not liable upon the ground that the placing of the same involved an engineering problem. In the case of Chicago & A. Ry. Co. v. Howell, 109 Ill. App. 546, affirmed 208 Ill. 155, it is said (p. 549):

“Whatever may be the proper application of this view of the law in this state, and to whatever length it may have been extended and applied elsewhere, our courts have not recognized it as applicable to structures of any kind erected or maintained in connection with the operation of the road, such as a 'mail-catcher,’ telegraph pole, coal shed, flag station, awning post, coal shute, scale-house, switch-stand, or other structure.” See also Chicago W. & V. Coal Co. v. Brooks, 138 Ill. App. 34, 39, affirmed 234 Ill. 372; Texas & P. Ry. Co. v. Swearingen, 196 U. S. 51, 61.

In the case of Illinois Terminal R. Co. v. Thompson, 112 Ill. App. 463, affirmed 210 Ill. 226, where the railroad company had not erected the pole in question, it is said (p. 470): “We have seen no decision that telegraph poles along the track or in the yards, and their proximity to passing trains, may be regarded as part of the railroad construction not to be considered under a charge of negligence.” We cannot agree with counsel’s contention that the court erred in refusing to instruct the jury at the close of all the evidence to find for the defendant upon this theory.

Fourth. It is further contended by counsel for defendant that, under the authority of the case of Eckman v. Chicago, B. & Q. R. Co., 169 Ill. 312, plaintiff’s acceptance of benefits from the Belief Department of the C., B. & Q. released that company from liability to pay damages because of plaintiff’s injuries; that if defendant was guilty of negligence causing plaintiff’s injuries, the C., B. & Q. was also guilty of negligence contributing to plaintiff’s injuries, in that it failed to use reasonable care to furnish plaintiff, its employe, a reasonably safe place to work, and failed to warn him of the dangerous proximity of the post to the track when it sent bim in charge of its train over the track, and that the C., B. & Q. is also liable for said injuries as lessee or licensee of said track; that the O., B. & Q. and defendant were joint tort feasors, and that the release of one of them is a release of the other and that an accord and satisfaction with one of them is a bar to an action against the other; that even though it was not proved that the C., B. & Q. and defendant were joint tort feasors it is sufficient if both were liable for plaintiff’s injuries; that one sustaining a bodily injury by the negligence of one or more persons can have but one satisfaction therefor, and that inasmuch as plaintiff accepted a satisfaction from the C., B. & Q., he cannot recover anything from the defendant.

To these contentions counsel for plaintiff replies, (1) that plaintiff’s acceptance of benefits from the C., B. & Q. Belief Department was not, because of the Federal Employer’s Liability Act, a valid release of the CL, B. & Q., and hence it could not operate as a release to defendant, and (2) assuming the alleged release to the C., B. & Q. to be valid, plaintiff’s acceptance of benefits did not release defendant.

Section 1 of the Federal Act referred to, approved April 22, 1908 (35 U. S. Stat. at Large, part 1, p. 65), provides:

“That every common carrier by railroad while engaging in commerce between any of the several States or Territories, or between any of the States and Territories, * * * or between * * * any of the States or Territories and any foreign nation or nations, shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, * * * for such injury * * * resulting in whole or in part from the negligence of any of the officers, agents, or employes of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment.”

Section 5 of the Act provides:

‘ ‘ That any contract, rule, regulation, or device whatsoever, the purpose or intent of which shall be to enable any common carrier to exempt itself from any liability created by this Act, shall to that extent be void: Provided, That in any action brought against any such common carrier nnder or by virtue of any of the provisions of this Act, such common carrier may set off therein any sum it has contributed or paid to any insurance, relief benefit, or indemnity that may have been paid to the injured employe or the person entitled thereto on account of the injury or death for which said action was brought.”

We think that the evidence in this case shows that at the time of the accident, when the C., B. & Q. was moving the baggage cars in question over the curved track, that company was a common carrier engaged in interstate commerce. “Every part of every transportation of articles of commerce in a continuons passage from an inception in one state to a prescribed destination in another is a transaction of interstate commerce.” U. S. v. Colorado & N. W. R. Co., 85 C. C. A. 27; U. S. v. Southern Ry. Co., 187 Fed. Rep. 209. And we think that under the facts of this case plaintiff, while assisting in the moving of the cars at the time of the accident, was employed in interstate commerce within the meaning of the Federal Employer’s Liability Act. Behrens v. Illinois Cent. R. Co., 192 Fed. Rep. 581; Johnson v. Great Northern R. Co., 102 C. C. A. 89. And we are of the opinion that, because of the provisions of said Federal Act, plaintiff’s acceptance of benefits from the C., B. & Q. Belief Department, as disclosed by the evidence in this case, did not release the C., B. & Q. from liability for plaintiff’s personal injuries occasioned by its negligence, in support of which opinion we cite without discussion the following cases: Philadelphia, B. & W. R. Co. v. Schubert, 36 App. Cas. (D. C.) 565, affirmed 224 U. S. 603; MecNamara v. Washington Terminal Co., 35 App. Cas. (D. C.) 230; Barden v. Atlantic C. L. R. Co., 152 N. C. 318; Washington v. Atlantic C. L. R. Co., 136 Ga. 638. Had the plaintiff in this case brought his action against the C., B. & Q., then under the proviso of Section 5 of the Federal Act the C., B. &; Q. could have “set off therein any sum it had contributed or paid to any * * * relief benefit * * * that may have been paid” to plaintiff. We think it follows that, in the present action where plaintiff seeks to recover damages from the defendant, the alleged release or satisfaction should not be given any greater effect against the defendant than it would have had in an action against the C., B. & Q. And our conclusion is that the fact that plaintiff accepted benefits, in the manner and in the amounts as shown by the evidence, from the Belief Department of the C., B. & Q. is not a bar to plaintiff’s right to recover damages from the defendant in this action for the injuries sustained by him.

But counsel for defendant contend that plaintiff should not be permitted to avail himself of the provisions of the Federal Act because of the alleged agreement claimed to have been made between opposing counsel, at the time the court sustained plaintiff’s demurrer to defendant’s plea of the Statute of Limitations, to the effect that the Federal Act should be kept out of the case. We cannot agree with the contention. If any agreement was made, the terms thereof are not set out in the transcript before us. From the record it appears that on May 15, 1911, the cause came on to be heard upon the demurrer to defendant’s plea of the Statute of Limitations, etc., and “after argument of counsel and due deliberation by the court, said demurrer is sustained, to which the defendant excepts.” We think that under all the facts and circumstances disclosed by the record the trial court did not err in permitting plaintiff in rebuttal to introduce evidence showing that at the time of the accident the C., B. & Q. was engaged and plaintiff was employed in interstate commerce.

Because of the views above expressed it is unnecessary for us to discuss the additional contention of counsel for plaintiff, viz.: assuming that the alleged release to the C., B. & Q. to be a valid one, nevertheless plaintiff’s acceptance of benefits from the Belief Department of the C., B. & Q. did not release defendant.

Fifth. It is further contended by counsel for defendant that the trial court erred in its rulings in admitting and in refusing to admit certain evidence offered. We deem it unnecessary to discuss the several points made. Suffice it to say that we have considered all of them and are of the opinion that no error prejudicial to the defendant was committed as urged by counsel. Complaint is also made of certain remarks of plaintiff’s counsel made during the trial and during his argument to the jury. We cannot say that these remarks were so improper as to warrant a reversal of the judgment. Nor do we think that the verdict of the jury is excessive and the result of passion and prejudice, as counsel contend.

Sixth. It is further contended that the court erred in giving and refusing to give certain instructions. As to the refused instructions we do not think that any error was committed. Plaintiff’s given instruction, No. 1, which is admitted to be a correct statement of law, was not in our opinion misleading, as defendant’s counsel contend. Plaintiff’s given instruction, No. 9, told the jury that, if they found defendant guilty and that plaintiff was entitled to damages, then in the assessment of such damages they “should not credit the defendant with any sum which the Chicago, Burlington & Quincy Railroad Belief Department paid to the plaintiff, or paid to any doctor, or other person, for or on account of the plaintiff.” It appears from the evidence that the Belief Department of the C., B. & Q. paid plaintiff, as benefits, the sum of $1,231, and also expended on plaintiff’s behalf the additional sum of $1,349.59, for hospital bills, physician’s services, etc., or a total of $2,580.59. It further appears that during the years 1908, 1909 and 1910, the C., B. & Q. contributed each year to the Department not to exceed fifteen per cent, of the entire annual receipts of the Department, the remainder of which receipts being contributed by members or employes. In view of these facts the instruction was not strictly accurate. If it was intended that the jury be instructed that neither the said sum of $1,231 nor the said sum of $1,349.59 be allowed as a credit to the defendant, we think it, was correct. But if it was intended to instruct the jury that the defendant should not be credited with any part of said sums, to-wit: the proportionate part thereof contributed by the C., B. & Q., then the instruction was wrong, and for the reason that the O., B. & Q. being entitled to have set off the amount contributed by it as against any claim for damages brought by the plaintiff against it, the defendant is also entitled to. the same credit in a suit brought against it for the same injury. Either view might have been taken by the jury, and the instruction, therefore, was calculated to mislead them. This error, however, can be cured by a remittitur. Fifteen per cent, of $2,580.59 amounts to $387.09. If, therefore, plaintiff within ten days shall file a remittitur of $387.09, the judgment will be affirmed for $14,612.91; otherwise it will be reversed and the cause remanded.

'Affirmed on remittitur; otherwise reversed and remanded.