Appeal by defendant from the Circuit Court of Cook county; the
Hon. LEE W. CARRIER, Judge, presiding. Heard in the second
division of this court for the first district at the February
term, 1953. Judgment reversed. Opinion filed December 15, 1953.
Rehearing denied January 5, 1954. Released for publication
January 5, 1954.
MR. JUSTICE TUOHY DELIVERED THE OPINION OF THE COURT.
Rehearing denied January 5, 1954.
Plaintiff, Ruth Pitrowski, administrator of the estate of Edward Pitrowski, deceased, brought suit against The New York, Chicago & St. Louis Railroad Co., a corporation, under the Federal Employers' Liability Act (45 U.S.C. § 51-59) to recover damages for the death of her husband, Edward Pitrowski. Edward Pitrowski at the time of his death was 42 years of age, was survived by his 31-year-old widow, and two children, aged 11 and 9 respectively. In 1950 his gross earnings amounted to $5,506.04. Verdict was returned in the sum of $150,000 and plaintiff, faced with the alternative of a new trial, remitted $50,000. From the $100,000 judgment then entered defendant appeals.
Defendant introduced no evidence in the case (other than a stipulation with which we are not here concerned), and stands upon its motion for a directed verdict.
Four acts of negligence charged in the complaint are before us: (1) that the defendant caused or allowed the freight car upon which plaintiff's intestate was riding as a switchman to become derailed; (2) that it moved the car at a dangerous and excessive rate of speed; (3) that it caused, permitted or allowed obstructions to be on the track; (4) that it failed to furnish plaintiff's intestate with a reasonably safe place to work. Defendant maintains that there was no evidence to support any of the allegations of negligence, and in order to determine the issue thus raised a review of the facts is necessitated.
Plaintiff's intestate, a switchman employed by defendant, was killed on October 15, 1951 while engaged in placing two box cars on an industry sidetrack located on property of the Bell Fibre Products Corporation in Chicago, Illinois. He was a member of a switching crew consisting of himself, the head brakeman, fireman, engineer and yard conductor. The working hours of the crew were between 12:00 midnight and 8:00 a.m., and the accident happened sometime around 3:30 a.m. Defendant railroad's main track runs approximately in a north and south direction at the general vicinity of the place of the accident. A switch track branches off of defendant's westbound main track and continues in a northerly direction from a switch point which is termed the "entrance switch" in the testimony. On the Bell Fibre property, which is to the east of the defendant's tracks, the switch track branches into two tracks, one of which curves to the east while the one involved proceeds in a northerly direction parallel to the west wall of the plant. When the crew came to the entrance switch the caboose was cut off and left standing on the main line attended by the brakeman. Decedent threw the entrance switch, while the yard conductor, Fietze, walked to the plant switch and lined it for the track parallel to the building. It was a dark morning and there were no lights about these switch tracks. There were two cars on the movement with an engine pushing them through a space referred to as a "tunnel," made by the sides and overhang of the adjoining building. About 15 feet north of the north end of this tunnel the lead car became derailed. Plaintiff's intestate was riding at the head of this car and was controlling the movement. It was proceeding about 3 or 4 miles an hour at the time of the accident. Fietze was standing some distance to the south for the purpose of passing signals between decedent and the engineer, and, because of a slight curve beyond the switch, he stepped some 10 feet to the east in order to be able to give the signal. As Fietze was watching the cars his attention was attracted by a shadow "going against the wall." He yelled for the engineer to stop. The engineer did so, moving about 3 or 4 feet after he heard the shout. The front wheels of the lead car had become derailed and thrown against the side of the concrete wall adjacent to the track, and when Fietze walked to the head of the movement he saw decedent's dead body crushed between the lead car and the wall. Between the tracks were the broken remnants of a "dolly" which had been used for 2 or 3 years before the accident by Bell Fibre Products Corporation for the movement of tools and material about its plant. This dolly was about 7 or 8 feet in length and was constructed of metal angle irons. It operated by means of flanged wheels on steel rails within the plant. It was made in the machine shop of the Bell plant. It extended 10 or 12 inches above the track level and at the time of the accident had no lights or any warning devices about it.
Before considering the particular charges of negligence charged in the complaint and argued by plaintiff to have been established, we shall have in mind certain basic legal principles governing this type of case.
The Federal Employers' Liability Act (Sec. 51) provides that a railroad carrier when engaged in interstate commerce shall be liable in damages to any employee for "injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed. . . ." It is to be observed that negligence is the gist of the employee's right of action against the employer under the provisions of this Act. The Act does not make a railroad company an absolute insurer of the safety of the employee. Wilkerson v. McCarthy, 336 U.S. 53.
We now come to a consideration of the first allegation of negligence, namely, that defendant "caused, permitted or allowed the car to become derailed."
The accident here was caused by the fact that this back-up switching movement struck an unseen and unexpected obstacle which was negligently permitted by someone to remain upon the industry track in such a position as to constitute a menace to safety, particularly during the hours of darkness. That the railroad company did not place the dolly upon the tracks is admitted. That it was not aware of the fact that the dolly was on the track is undisputed. The only remaining question under which recovery could be had under this allegation of the complaint is whether in the exercise of ordinary care the railroad company should have discovered the obstacle prior to the accident. This proposition also appears in a subsequent allegation and we shall discuss it in that connection.
The next charge is that the defendant moved the car at a dangerous and excessive rate of speed. The only evidence in the case upon the question of speed is that the movement was proceeding "slowly" or at a speed of 3 or 4 miles per hour. Obviously this is not per se an excessive rate of speed, and only becomes such if the railroad company knew or is charged with knowledge that a dangerous obstruction which would in all probability derail the movement was on the track in front of the moving car. If the railroad company had knowledge or is charged with knowledge of this fact (to be discussed later), then any motion at all on the part of its train would have been negligence. We must conclude, therefore, under all the testimony in this case, that the speed was not per se the proximate cause of this accident.
The third charge of negligence is that the railroad company caused, permitted or allowed obstructions to be on the track, and the fourth charge is that defendant failed to furnish plaintiff's intestate with a reasonably safe place to work. Inasmuch as these two charges of negligence are tied together and constitute in our opinion the basis upon which negligence, if any, must rest, we shall treat them as a single point.
The issue of negligence thus resolves into a single question: Should the railroad company in the exercise of reasonable care have known that the dangerous obstacle was on the track before and at the time of the collision?
Conductor-switchman Fietze was the only member of the railroad company crew who testified, and he said that he had never seen the dolly before the night of the accident. The track foreman, Baker, whose duties consisted of inspection and maintenance of the tracks, said that he had seen the dolly being used on the track in the daytime before the accident, that he never saw it on the track when it was not being used, that "when it wasn't being used I saw it turned off near the track back far enough to clear the track and the walkway." There was no proof that any employee of the railroad company had ever seen the dolly resting in a place where it would constitute a threat to the ...