Appeal by defendant from the Circuit Court of Cook county; the
Hon. FRANK H. BICEK, Judge, presiding. Heard in the second
division of this court for the first district at the April term,
1950. Judgment affirmed. Opinion filed January 23, 1951.
Rehearing denied March 5, 1951. Released for publication March
MR. JUSTICE SCANLAN DELIVERED THE OPINION OF THE COURT.
Rehearing denied March 5, 1951
Plaintiff's suit was brought under the Federal Safety Appliance Act to recover damages for personal injuries sustained by him, an employee of the Pennsylvania Railroad Company, a corporation, defendant, in its 59th street freight yard. A jury returned a verdict finding defendant guilty and assessing plaintiff's damages at the sum of $65,000. Defendant appeals from a judgment entered on the verdict.
The major contention of defendant is that "the trial court erred in denying defendant's motion for a directed verdict at the close of all the evidence and its subsequent motion for judgment notwithstanding the verdict. The complaint charges, and the case was tried on the theory of, a violation of the Safety Appliance Act. There has been a complete failure of the necessary proof."
"A motion for directed verdict or for judgment notwithstanding the verdict presents the single question whether there is in the record any evidence which, standing alone and taken with all its intendments most favorable to the party resisting the motion, tends to prove the material elements of his case. Gorczynski v. Nugent, 402 Ill. 147; Weinstein v. Metropolitan Life Ins. Co., 389 Ill. 571." (Lindroth v. Walgreen Co., 407 Ill. 121, 130.)
Plaintiff testified that he had worked for defendant continuously from October 16, 1940, to the date of the accident; that he worked successively as a brakeman, a yard conductor or yard foreman, and as an assistant yardmaster; that on July 11, 1948, the date of the accident, he was working as a yard foreman or yard conductor at the eastbound classification yard of defendant; that this yard is located at 59th street, about one and one-half blocks east of Western avenue, in Chicago; that the north end of the yard is at 59th street and the south end is approximately at 63rd street; that his duties required a great deal of walking, checking the train, going with the train from one yard to another; that his work entailed a great deal of physical exertion of the arms in applying and releasing the brakes, ascending and descending the cars to apply and release the brakes; that in connection with his work he had occasion to couple and uncouple freight cars; that in connection with the classification of cars there was a great deal of coupling and uncoupling of cars; that on the day of the occurrence he had occasion to switch numerous cars back and forth in the yard, and had coupled and uncoupled cars; that on and prior to July 11, 1948, he was familiar with the mechanical make-up of coupling devices on railroad cars; that a coupling device on a railroad car is composed of the draw bar itself, which extends underneath the car and is fastened to the framework of the car by cross pins through the framework and through the draw bar; that the operating end of the draw bar consists of a movable side, called the knuckle, and the stationary side called the jaw; that the movable knuckle has an opening motion of approximately 90 degrees; that in its open position the knuckle will point approximately straight ahead of the center line of the cars and in its closed position the knuckle presents a flat surface, leaving a space between the edge of the knuckle and the edge of the jaw sufficient to admit the opposing knuckle; that this locking mechanism is operated or controlled by a device which is called the pin lifter, which extends to the outside of the car, and by the operation of the pin lifter, the lock is so actuated that from a closed position the knuckle is normally forced to an open position; that there was also lateral motion in the draw bar which must be sufficient to allow the cars to "break" around a curve; that this lateral motion is limited by a buffer spring or a snubber spring on the cross pins; that when the draw bar is moved from side to side it comes in contact with and operates against the springs; that the function of these springs is to return the draw bar to its center position when it is moved from side to side; that there is sufficient room left in the opening between the knuckle and the jaw of one coupler to allow the entrance of the opposing knuckle, but if the draw bar on one car is out of position to one side, the draw bar will pass completely by, or if the two jaws are opposed there will be no coupling effected, because the movable parts of the draw bars are outside of the opening where they would be locked by the locking mechanism; that at the time of his injury he and his crew were engaged in making up an eastbound combined freight train known as 88-82 or a CG8-88; that he was told by Reitz, the assistant yardmaster, to make up this combined train on track 6; that one car was picked up on track 13 and then the crew went in on track 12 and picked up some more, about seven more; that after these cars were coupled plaintiff walked toward the south end of the yard to throw the switch on track 6, so that a waiting road engine could get into the track and pull out the cars; that it was quite dark in the yard and he was carrying a lantern; that after throwing the switch he went to the last car on track 6 and was about to cross over when he noticed the angle cock on the last car on track 6 was open; that an angle cock is the device which operates a valve in the air brake system of a train, and that he closed that angle cock and walked west to the other side of track 6 where he operated the pin lifter on the south end of the south car to open the knuckle on that particular car in order to make it convenient for the road engine to make a connection with the first car of the train; that he then proceeded north between tracks 6 and 7 and was then examining the coupling of the cars to make certain that they were coupled; that the coupling between the southernmost car and the one immediately north of it was apparently made and he then proceeded to the next car when he noticed that the coupling was not made; that the north draw bar of the second car was in a closed position; that the knuckle had been knocked over to a closed position; that the knuckle on the south end of the north car, the third car, was also in a closed position and to the west of the center line; that the center of the draw bar was to the west of the center line about three or four inches; that when a draw bar is in that position it will not couple automatically by impact because the solid side of the draw bar, the jaw, would strike the closed face of the knuckle on the south car; that if a coupling device is in proper working order the draw bar centers itself; that he was not provided with any tools of any kind to use in connection with the aligning of draw bars or opening knuckles on couplers; that he looked to the north and saw no moving cars or lights and heard no movement of any kind of cars or engines in the yard; that he then put his foot across the draw bar on the south of the third car, held on to the grab irons and hand holds on the south end of this northern car and the north end of the southern car; that he had one hand on the grab iron of each car; that when he was in that position some part of his body was between the ends of the cars; that there was no mechanical device on that car that would enable him to align the draw bar without getting his body between the ends of the cars; that when draw bars are out of alignment they are put into alignment by the operation of physical strength applied in two ways that the more common way when a car is standing by itself would be to back up to the draw bar, hook your hands underneath it, lift it, and swing it into position, but in a case like this, where you would have the other car to hold on to, it is much more common to use the force of a leg to shove the draw bar over; that after he took hold of the two grab irons he put his right foot against the draw bar and had his knee in a bent position; that he then straightened out his leg and shoved the draw bar over; that at that moment there was a loud crash and violent movement of the cars and he was knocked to the ground. Plaintiff also testified that the car in question was on a straight track at the time of the accident.
F.P. McKim, special duty yardmaster for defendant, and a witness for defendant, testified that "in coupling up a train, it is necessary that the draw bars be in alignment in order for them to couple. The draw bars will not couple automatically by impact unless they are in proper alignment. When the draw bar has been put in proper alignment by pushing it, or otherwise, then they will couple automatically by impact. . . . Before a coupling operation can be made, it is necessary to align the draw bars if they are out of line."
Edward R. Youngman, foreman in charge of inspectors at the yard in question, was a witness for defendant. He testified upon direct examination as follows: "Q. Now, what is this part here called? . . . A. That is the shank of the coupler, what is commonly called a shank of the coupler or draw bar, in ordinary language. Q. Now this slot, as I call it, that that shank fits in, what is that called? . . . A. That opening is formed by it is made for the purpose of upholding or holding the coupler in place and also has sufficient room to permit that coupler to go sideways, and also to go a certain degree inward when it contacts another car. Q. How much play or how much space is there on each side of that draw bar for it to go sideways? A. An inch and a half, the total space. In other words, it goes three quarters either way. Q. Three-quarters of an inch? A. Either way." This witness further testified that "a draw bar will not couple automatically with the draw bar on a car in front of it unless they are in a proper alignment."
We hold that there is in the record evidence which, standing alone and taken with all its intendments most favorable to the plaintiff, tends to prove the material elements in the case.
In Atlantic City R.R. Co. v. Parker, 242 U.S. 56, an engine had backed for the purpose of coupling with a car and had failed to couple automatically by impact and thereupon the plaintiff in that case, noticing that the drawhead was not in line with the one on the engine, put in his arm for the purpose of straightening it, thus making the coupling possible, and was caught. The court, speaking through JUSTICE HOLMES, stated (p. 59):
"If there was evidence that the railroad failed to furnish such `couplers coupling automatically by impact' as the statute requires (Johnson v. Southern Pacific Co., 196 U.S. 1, 18, 19), nothing else needs to be considered. We are of opinion that there was enough evidence to go to the jury upon that point. No doubt there are arguments that the jury should have decided the other way. Some lateral play must be allowed to drawheads, and further, the car was on a curve, which of course would tend to throw the coupler out of line. But the jury were warranted in finding that the curve was so slight as not to affect the case and in regarding the track as for this purpose a straight line. If couplers failed to couple automatically upon a straight track it at least may be said that a jury would be warranted in finding that a lateral play so great as to prevent coupling was not needed, and that, in the absence of any explanation believed by them, the failure indicated that the railroad had not fully complied with the law. Chicago, Burlington & Quincy Ry. Co. v. United States, 220 U.S. 559, 571. Chicago, Rock Island & Pacific Ry. Co. v. Brown, 229 U.S. 317, 320, 321. San Antonio & Aransas Pass Ry. Co. v. Wagner, 241 U.S. 476, 484." (Italics ours.)
[3-5] The Supreme court affirmed the judgment in favor of the plaintiff. We think the foregoing case has an important bearing upon the instant contention. It will be noted that in the instant case the car was on a straight track. Defendant contends that the Atlantic City R.R. Co. case is not applicable to the instant one because here plaintiff made no attempt to first couple automatically by impact. The evidence of plaintiff tends strongly to show that the car in question had failed to couple upon impact before plaintiff discovered that the draw bar was not in alignment. It must also be remembered that it appears from the testimony of plaintiff that the draw bar in question was three or four inches out of alignment and that plaintiff knew that in that position the cars could not automatically couple. It would, therefore, have been a useless act for plaintiff to have made a trial to see if the cars would couple automatically by impact. Plaintiff, therefore, in the line of his duty, changed by physical force the condition he found, so that the cars would couple automatically on impact. The condition plaintiff found was a violation of the Safety Appliance Act and was the proximate cause of his injuries. At the instance of defendant the court gave to the jury the following instruction: "D20. . . . Before the plaintiff can recover against said defendant, he must prove by a preponderance or greater weight of the evidence that while the plaintiff was engaged in the act of adjusting a drawbar on the third car from the southerly end on track six in the 59th Street Yard, that The Pennsylvania Railroad Company negligently violated the Safety Appliance Act by permitting a car to be used on its line that would not couple automatically by impact and that such negligent violation, if any, contributed in whole or in part to injure the plaintiff. . . ." Thus there was submitted to the jury at defendant's own instance the issue as to whether the car in question was one which would couple automatically by impact, and the jury decided against defendant, no doubt basing their verdict upon that testimony of plaintiff which we have heretofore set forth. Defendant, by this instruction, conceded that it would be a violation of the Safety Appliance Act for it to permit a car to be used on its line that would not couple automatically by impact.
In the recent case of Affolder v. N.Y., C. & St. L.R. Co., 339 U.S. 96, the New York, Chicago & St. Louis Railroad Company was the sole defendant. The court states (pp. 97, 98, 99, 100):
"We have for review a judgment of the Court of Appeals for the Eighth Circuit, reversing petitioner's recovery of an $80,000 judgment against the respondent railroad based on an alleged violation of the Federal Safety Appliance Act and the Federal Employers' Liability Act. Petitioner was a member of a crew engaged in classifying, or sorting, a number of railroad cars in the respondent's yards. Twenty-four cars had been coupled together on one track. The twenty-fifth, a Rock Island car, was kicked eastward down the track to couple with the others. It did so, its east end joining the other cars. A Pennsylvania car was the next car kicked eastward down the track, but it and the Rock Island car failed to couple together. After three or four other cars had been added, the Rock Island car and the twenty-four others to which it was attached began rolling down the track. Petitioner ran after the moving train of cars in an attempt to board and stop them, as was his duty. His leg was lost as he fell under a car in this attempt.
"The trial was to a jury, petitioner contending that the failure of the Pennsylvania car to join the Rock Island car on impact was in itself a violation of the Safety Appliance Act, resulting in the separation and his injury. Respondent took the position that the criterion of the Act is, `were they [the cars] equipped with efficient couplers?' and not `did they [the couplers] in fact fail to couple?'; and that if there was a violation of the Act, it was not the proximate cause of the injury. The jury returned a verdict for $95,000 which, upon remittitur, was reduced to $80,000. A judgment in this amount was entered. 79 F. Supp. 365 (1948). On appeal the judgment was reversed. 174 F.2d 486 (1949). We granted certiorari. 338 U.S. 813 (1949).
"The Court of Appeals determined the issue of proximate cause favorably to petitioner, and respondent admits that the `problem of causal connection vel non in the Affolder case is legally identical with the same problem in the Carter case. [Carter v. Atlanta & Saint Andrews Bay R. Co., 338 U.S. 430 ...