Appeal by defendant from the Superior Court of Cook county;
the Hon. DONALD S. McKINLAY, Judge, presiding. Heard in the third
division of this court for the first district at the April term,
1952. Affirmed. Opinion filed January 21, 1953. Rehearing denied
February 4, 1953. Released for publication February 4, 1953.
MR. JUSTICE FEINBERG DELIVERED THE OPINION OF THE COURT. Rehearing denied February 4, 1953
Plaintiff brought this action under the Federal Employers' Liability Act for personal injuries allegedly due to defendant's negligence. Upon a trial with a jury a verdict for $47,000 was returned, and after denial of defendant's motion for judgment notwithstanding the verdict or for a new trial, judgment was entered upon the verdict, and defendant appeals.
That the parties come under the Federal Employers' Liability Act is not disputed.
On September 4, 1948, about 1:30 a.m., plaintiff was the engineer on defendant's freight train driven at a speed of approximately 30 miles per hour, in an easterly direction from Donnellson, Illinois, and as the train approached a passing track off the main line, plaintiff observed sparks emanating from under the trucks of the engine tank. He descended to the bottom step of the tank ladder, located on the south side of the engine, adjacent to what is described as the engine gangway. In a squatting position, while hanging onto the grab iron, he looked under the tank to ascertain the cause of the sparks. He testified that in his thirty years of railroading experience it was necessary and customary for engineers to investigate the cause of such sparks while the train was running; that it could have been one of several things that might create a derailment and consequent injury to life or property; and that the only way he could determine the cause of the sparks was to assume the squatting position he did, a few inches above the rail, while the train was in motion. Plaintiff's testimony as to the duty and customary way of investigating the cause of such sparks while the train was running is not disputed. Defendant's witness Swann, an engineer, merely testified that he never got down on the steps of an engine to make an inspection because "I would be afraid to."
While in the squatting position described, the train approached a "dwarf" or "pot" signal, a part of the block system of signals then in operation, which controlled the movement of trains on a parallel passing track. The "dwarf" or "pot" signal was located in the middle of the space between the main and passing tracks, whose centers were approximately 13 1/2 feet apart. The signal was 8 inches wide, extended to a height of 27 inches above the rail, about 4 feet laterally from the south rail of the main line track, and about 17 inches laterally from the step on which plaintiff took his position. The "pot" signal in question at its rear reflected no light or signal to trains traveling from the west in an easterly direction. It was only intended as a signal for the trains approaching from the east. There was evidence for plaintiff that the closest part of the signal to the southerly rail was 46 inches and that the clearance between the side of the engine and the "pot" signal in question was 10 1/4 inches. Plaintiff, while in the described position, was knocked off the ladder by the "dwarf" or "pot" signal and sustained injuries to his left shoulder. The evidence for defendant tends to show that the clearance met the approved standard and was within the specifications of the American Association of Railroads.
The negligence charged was the failure of defendant to furnish plaintiff a reasonably safe place or surroundings in which to perform his duties. Whether defendant furnished such a reasonably safe place or surroundings must necessarily be determined by the nature of the duties required of plaintiff and the manner in which such duties are generally and customarily performed by those employed in similar positions. A special interrogatory submitted to the jury was answered in the affirmative that defendant was negligent in the installation and maintenance of the signal in question. If we can say, upon the evidence in the record, that the investigation plaintiff made was within the purview of his duties as an engineer and performed in a manner not unusual or abnormal, then it is clear that defendant had a duty not to erect the instant "dwarf" or "pot" signal, if it could become dangerous to the safety of plaintiff in the performance of his duties.
Bearing upon the question as to whether plaintiff's manner of performing his duty was unusual or abnormal and should defeat his right to recover, as argued by defendant, is the case of Anderson v. Baltimore & O.R. Co., 89 F.2d 629, 630. There, the fireman on a locomotive engine, while the train was in motion, walked forward at the side of the engine to the sand pipes, for the purpose of tapping them with a pick to get the sand to flow, and while stooping over to look at one of the pipes, he got in the way of an engine of the Erie Railroad coming from the opposite direction around a curve on the adjacent track. He was struck by the pilot beam and instantly killed. The court allowed a recovery and reversed the district court, which had directed a verdict for the defendant.
That the "dwarf" or "pot" signal was erected in accordance with the clearance specifications of the American Association of Railroads, and as customarily followed by other railroads in the system of signals for the operation of trains, is not controlling. Such evidence is competent and may have probative value upon the question of negligence, but it is not conclusive. The test is whether there was necessity in the practical operation and movement of defendant's trains to locate the "dwarf" or "pot" signal at the point in question. As was said in Texas & P. Ry. Co. v. Behymer, 189 U.S. 468:
"What usually is done may be evidence of what ought to be done, but what ought to be done is fixed by a standard of reasonable prudence, whether it usually is complied with or not."
Reflecting upon the necessity for locating the "dwarf" or "pot" signal in question, for the practical operation of the railroad, is the testimony of defendant's witness Mettlen, the signal supervisor for the defendant. He testified: "I am sure the Interstate Commerce Commission requires all signals on the engineer's side unless you can show some very definite cause for putting them elsewhere. I would say that close clearance between the signal and the main line would be a very definite reason. Physically, there is nothing south of the passing track at Donnellson that would have prevented us from locating the signal there. We could have built it there. It is a question of putting a concrete block down and erecting the signal. * * * I am responsible for the installation of this signal."
Defendant produced an expert witness, a district manager for the company that manufactured the signal in question, who was familiar with the installation and location of such signals. He testified that to comply with the Interstate Commerce Commission regulations, the signal had to be located to the right of the track; that where physical limitations will not permit the installation to the right, by permission of the Commerce Commission it could be installed at the left; and that if by locating the signal on the right, it would not allow sufficient clearance, there are the alternatives either to install it at the left with the permission of the Commerce Commission, or by putting up a bridge structure and mounting the signal on the bridge structure above the rail.
In the light of this testimony, together with all the other facts, we think it was a question for the jury to determine whether the installation of the "dwarf" or "pot" signal at the place in question was dangerous to the safety of plaintiff in the performance of his duty when required to investigate the cause of the sparks during the movement of his train. It was the jury's province, in view of plaintiff's undisputed testimony that what he did was part of his duty and customarily followed by others in the same position, to determine whether defendant by the exercise of reasonable care could foresee that an emergency might arise, under the circumstances in the instant case, calling upon plaintiff to investigate the cause of sparks, and that the location of the instant "pot" signal could become unsafe in the response of plaintiff to such an emergency.
Under the uniform holdings in cases arising under the Federal Employers' Liability Act, even if plaintiff in performing such duty was careless or negligent, which contributed to cause the accident, such contributory negligence is not a defense to an action under the Act, but should be considered in mitigation of damages. Wetherbee v. Elgin, Joliet & Eastern Ry. Co., 191 F.2d 302 (7th Circuit). Nor does the doctrine of assumption of risk exist since the 1939 amendment to the Act. Tiller v. Atlantic Coast Line R. Co., 318 U.S. 54.
We think, on this record, that the court properly submitted to the jury the question of defendant's negligence. As was said in Tennant v. ...