APPEAL from the First Division of the Appellate Court for the
First District; heard in that court on appeal from the Superior
Court of Cook County; the Hon. W.R. O'MALLEY, Judge, presiding.
MR. JUSTICE HERSHEY DELIVERED THE OPINION OF THE COURT:
Rehearing denied March 22, 1955.
The plaintiff, James P. Hall, brought suit under the Federal Employers' Liability Act (45 U.S.C.A. 51-60) to recover damages for personal injuries sustained on August 11, 1947, while he was employed as switchman by the defendant, Chicago and Northwestern Railway Company, a common carrier engaged in interstate commerce. On May 7, 1952, the jury returned a verdict for the plaintiff in the amount of $50,000, and the court entered judgment thereon. The defendant filed a motion for judgment notwithstanding the verdict, and the plaintiff moved for a new trial. The court denied the defendant's motion, but allowed the plaintiff's motion for a new trial.
The defendant appealed from said order granting a new trial to the Appellate Court pursuant to section 77 of the Civil Practice Act. (Ill. Rev. Stat. 1953, chap. 110, par. 201.) The Appellate Court reversed the trial court and remanded the case with directions to reinstate or restore the judgment. (349 Ill. App. 175.) The plaintiff filed a petition for leave to appeal to this court, to which the defendant made a motion to dismiss. We allowed the defendant's motion to dismiss.
Accordingly, the cause was redocketed in the trial court, and judgment was entered on the verdict for the plaintiff. Both parties filed notices of appeal to the Appellate Court. On this second appeal, the Appellate Court reversed the trial court's denial of defendant's motion for judgment notwithstanding the verdict and remanded the cause with directions to enter judgment for the defendant. (1 Ill. App.2d 552.) The plaintiff petitioned this court for leave to appeal, which we granted.
The injury complained of occurred on August 11, 1947, on the premises of the Nachman Company in Chicago. The plaintiff was a member of a five-man switching crew which was picking up four empty freight cars from the Nachman plant.
In this vicinity the defendant's main track runs in a general northerly and southerly direction, and the Nachman Company premises, enclosed by an iron fence, are located along the east side of the track. An industry track leading into and servicing the Nachman Company curves off to the southeast from the main track, or to the left as one faces south on the main track. This industry track crosses the gate leading into the premises at a diagonal, the gate post on the east side (or to the left as one enters the premises) being 10 feet 8 inches farther north than the gate post on the west side. Just inside the gate and on the east side of the track (to the left) is located a freight platform, which is used for loading and unloading merchandise. On the west end of this platform (facing one entering the gate) is a sign, all in caps, reading "WARNING NO CLEARANCE FOR MAN ON SIDE OF CAR." There is no sign of any character on the east end.
The crew consisted of an engineer, a fireman, two switchmen and a conductor. The plaintiff, a switchman, was acting as "field man," and as such it was his duty to make couplings or uncouplings whenever necessary. They had two loaded freight cars for delivery to Nachman, but before making the delivery it was necessary to pick up four empty cars which were located on the industry track a few hundred feet inside the premises.
The two loaded cars were uncoupled and left standing outside the gate on the main track just south of the point where the industry track joins the main track. After the plaintiff uncoupled these two cars, he and the conductor entered the premises through the gate. It was the first time the plaintiff had been on the Nachman Company premises. He said he saw the freight platform at his left when he entered and also noted that the track was curved. However, he said he "did not believe [he] looked for a sign." He and the conductor thus continued walking for a distance of a few hundred feet, the conductor, who was in charge of the crew, explaining the switching operation to the plaintiff.
The engine, tender and caboose then backed in and coupled onto the four empty cars. The engine, then facing in a general northwesterly direction, pulled ahead, with the tender, caboose and four cars following in that order. The plaintiff took a position at the bottom step on the east side and south end of the caboose (i.e., on the right side of the caboose as one faced the gate). The conductor rode at the rear of the cut of cars. It was the plaintiff's job to ride the cars out and to transmit any signals from the conductor to the engineer, who was also on the right side.
The plaintiff said it was his intention to ride beyond the platform and the gate, to get off the caboose outside the gate, and then go to the two loaded cars and make the coupling. However, instead of looking at the freight platform or at the gate post on the east side (i.e., on the side he was riding,) he was looking across the platform of the caboose, and when he saw the gate post on the west side he got off with his back to the freight platform. He was pressed between the platform and the freight car following, sustaining severe personal injuries.
The following additional, undisputed evidence was adduced at the trial: The speed of the train was about four miles per hour. It was stopped as soon as plaintiff was injured. While he was riding on the step of the caboose he was in a position of complete safety and could have passed the platform without any difficulty. His work did not require him to get off opposite the platform, and he did not intend to get off there. At no time while he was thus riding the caboose did he look in the direction of the platform, although it was a clear day and there was no obstruction to his view had he looked. The plaintiff was an experienced switchman with some twenty-four years of railroad experience and was cognizant of a company rule which required him to familiarize himself with close clearances, but he testified that he had never come into an industry where there was a slanting gate other than this one leading to the Nachman Company premises. He had worked in other places where there were close clearances, and it appeared he knew of this close clearance, for while riding on the caboose he told another member of the switching crew, Thompson, who was new on the job, to "ride high" on the cars because the "platforms were not clear."
It further appeared that the freight car which struck the plaintiff was fifty feet in length, and such fifty-foot cars had been in use for eight or ten years. At the time the platform was constructed, thirty-five years before, thirty-five or forty-foot cars were in common use. Fifty-foot cars are wider than thirty-five or forty-foot cars, and there was testimony that placed the distance between a fifty-foot car and the platform at from three to six inches, although it was stated that all fifty-foot cars are not of the same width. There was evidence that employees of the defendant had complained about this platform. Also, there was some evidence that the platform could be cut off and still used for unloading purposes, the defendant's chief of yards testifying as follows: "Oh, it could be cut off but wouldn't be fit for unloading purposes without large runways and so forth."
Two questions are now before this court: (1) Was the Appellate Court in error in reversing the order of the trial court which denied defendant's motion for judgment notwithstanding the verdict? (2) Was the Appellate Court in error in reversing the trial court's order which granted the plaintiff a new trial?
We shall first consider whether the Appellate Court was in error in reversing the trial court's denial of defendant's motion for judgment notwithstanding the verdict.
This court in the recent case of Bonnier v. Chicago, Burlington and Quincy Railroad Co. 2 Ill.2d 606, stated at pages 607-8 the general rules relative to considering a motion for judgment notwithstanding the verdict in a case of this nature: "The well-established rule in both the Federal courts and the courts of Illinois is that a motion for judgment notwithstanding the verdict presents only a question of law as to whether, when all the evidence is considered, together with all reasonable inferences therefrom in its aspect most favorable to the plaintiff, there is a total failure or lack of evidence to prove any necessary element of plaintiff's case. (Wilkerson v. McCarthy, 336 U.S. 53, 93 L.ed. 497; Lindroth v. Walgreen Co. 407 Ill. 121; Ill. Rev. Stat. 1951, chap. 110, par. 259.22.) Section I of the Federal Employers' Liability Act makes a carrier liable in damages for any injury or death `resulting in whole or in part from negligence' of any of its `officers, agents, or employees.' Other provisions of the act abolish the defense of assumption of risk and provide that contributory negligence of a plaintiff shall not bar a ...