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Allendorf v. E.j. & E. Ry. Co.





APPEAL from the Circuit Court of Cook County; the Hon. FRANK LEONARD, Judge, presiding.


James Allendorf, an Indiana resident, was killed on March 3, 1952, while performing his duties as switch foreman in the defendant's railroad yards at Gary, Indiana. Thereafter, his wife, Ruth Allendorf, filed this action in the circuit court of Cook County, as special administratix, to recover damages under the provisions of the Federal Employers' Liability Act. (45 U.S.C.A. sec. 51-59.) Trial was had by a jury, which, in addition to returning special findings as to negligence which were favorable to the plaintiff, also rendered a verdict for her in the amount of $127,500. After judgment was entered thereon, the defendant filed motions in arrest of judgment, for judgment notwithstanding the verdict, and for a new trial. As a basis for the former, it was contended that section 2 of the Injuries Act (Ill. Rev. Stat. 1951, chap. 70, par. 2,) precludes Illinois courts from assuming jurisdiction of a wrongful death action arising in a sister State. In opposition thereto, plaintiff argued that the statute, insofar as it so provided, was in conflict with the supremacy clause of article VI of the United States constitution, and was therefore unconstitutional. The defendant's motions were subsequently denied and direct appeal has been taken to this court. In addition to the constitutional issue presented, the defendant contends that the verdict was not properly supported by the evidence and that the trial court erred in allowing certain actuarial testimony.

We must first decide whether the courts of Illinois have the power to entertain a cause of action for a wrongful death occurring outside of this State. Section 2 of our Injuries Act, after placing certain limitations upon the right of recovery, continues: "Provided, further, that no action shall be brought or prosecuted in this State to recover damages for a death occurring outside of this State where a right of action for such death exists under the laws of the place where such death occurred and service of process in such suit may be had upon the defendant in such place."

This proviso prohibits actions where the wrongful act occurred outside this State. (Crane v. Chicago and Western Indiana Railroad Co. 233 Ill. 259.) Thus, if not in conflict with the United States constitution, it bars the present action.

In Hughes v. Fetter, 341 U.S. 609, 95 L.ed. 1212, an action had been brought in Wisconsin to recover for a wrongful death occurring in Illinois but had been dismissed because the laws of Wisconsin refused to recognize such out-of-State actions. The Supreme Court of the United States, in holding that Wisconsin must give full faith and credit to the Illinois statute, said: "That State [Wisconsin] has no real feeling of antagonism against wrongful death suits in general. To the contrary, a forum is regularly provided for cases of this nature, the exclusionary rule extending only so far as to bar actions for death not caused locally." The court reiterated this principle by holding that a Federal court, sitting in Illinois, could not refuse to entertain an action based upon the wrongful death statute of Utah. (First National Bank of Chicago v. United Air Lines, 342 U.S. 396, 96 L.ed. 441.) In its opinion, the court said that Illinois had not met constitutional requirements in permitting such actions to be brought only if the defendant could not be served in the State where the cause arose.

It is clear that a State can no longer refuse to entertain wrongful death actions which originate under the laws of a sister State, if, like Illinois, it entertains such actions when they arise under its own laws. Section 2 of our Injuries Act has thus been limited to apply only to suits arising under the laws of the United States or of a foreign country. As a practical matter, this means that it applies only to cases arising under the laws of the United States. But it has also been held that a State cannot discriminate against rights which arise under Federal law, as does the right in this case. (McKnett v. St. Louis and San Francisco Railway Co. 292 U.S. 230, 78 L.ed. 1227.) In effect, therefore, we have here the problem that was presented in the McKnett case. There, by the language of the statute, cases arising under a Federal statute were excluded. Here, by the interplay of judicial decisions, instead of the direct language of the statute, the same discrimination results. "A statute valid when enacted, may become invalid by change in the conditions to which it is applied." Nashville, Chattanooga & St. Louis Railway Co. v. Walters, 294 U.S. 405, 414. We hold, therefore, that insofar as section 2 of the Injuries Act prevents the bringing of actions within this State to recover damages for wrongful acts resulting in death committed without the State, it is contrary to article VI of the United States constitution.

The defendant next contends that the verdict was not properly supported by the evidence. In order to decide this question we must first look to the facts of the case. James Allendorf, the decedent, reported for work at 11:00 P.M. on the night of March 2, 1952, for a normal eight-hour shift, and was assigned as foreman of a switching crew in the defendant's general classification yard at Gary, Indiana. In addition to the foreman, the crew consisted of an engineer and fireman, who were stationed in the engine, a field man and a head man. It was the crew's duty to arrange the railroad cars in proper order for their delivery to neighboring industries. To do this it was necessary to go into various tracks located in an area known as the "F" Yard and pull out cars and place them on other tracks. Prior to the accident, the Allendorf crew was working on the track known as the "F" Yard lead, which ran approximately in an east and west direction. Immediately to the north was the "L" Yard lead which ran parallel to and was approximately twelve feet from the "F" Yard lead. Between these tracks were various switch stands, which controlled the movements into the various tracks, and at the far westerly end was located a floodlight tower. Allendorf's engine was at all times during the course of the evening headed in a westerly direction. Since it was necessary for him to pass signals to his engineer, Allendorf normally stood between the "F" and "L" Yard leads. During the same night, a crew, under the supervision of Francis Fay, was assigned similar duties in the "N" Yard. However, at approximately 2:30 A.M., the Fay crew was sent over to the "L" Yard to remove defective cars from a train that had already been made up. Their job was to "kick" the defective cars down the "L" Yard lead into a different track. Since their engine was also headed in a westerly direction, the Fay crew worked on the north side of the "L" Yard lead. Thus, only the Allendorf crew was located between the "F" and "L" Yard leads. The engines used by both crews were diesel operated, were equipped with both headlights and back-up lights, and could travel with equal ease in either direction. The head man on Allendorf's crew testified that immediately before the accident a mistake had been made by him and certain cars were placed on the wrong track. He and Allendorf had discussed the matter at approximately 3:00 A.M. while standing in the center between the two lead tracks "L" and "F," and as he walked away he turned to see Allendorf's lantern go down. It was later shown that Allendorf had been struck by the defective cars being kicked down the "L" Yard lead. Others stated that after this conversation, they saw Allendorf's lantern move a step or two and then fall. The head man further testified that he immediately climbed upon the "F" lead cars and looked in a westerly direction, hoping to see the engine that had shoved the defective cars, but that he saw neither an engine nor its back-up light. Nussle, the engineer in Allendorf's crew, testified that although he was looking in a westerly direction before the accident, he did not know an engine was working on the "L" Yard lead nor did he see any back-up light. However, both the engineer and fireman of the Fay crew testified that the headlights and back-up lights of their engine were on at all times prior to the accident. There was much conflicting evidence as to whether Allendorf knew that another crew was working on the adjoining "L" Yard lead. Fay, the "L" Yard foreman, stated that he had told his field man to warn the Allendorf crew of the impending movement on the "L" Yard lead. The field man stated he had told a member of the Allendorf crew, but not Allendorf himself. The yardmaster swore that at about 2:30 A.M. he informed Allendorf that the Fay crew would be kicking cars down the "L" Yard lead. He further testified that later he warned the Allendorf crew by loudspeaker. This was not verified by any member of the crew. The evidence was also extremely conflicting as to the degree of lighting in the accident area. It did show, however, that although the cars which struck Allendorf were neither lighted nor accompanied by any member of the switching crew, such was the usual custom in such operations. Other testimony showed that after allowing for the car overhang, the working distance between the "F" and "L" Yard leads was approximately six and one-half feet.

In order to recover under the Federal Employers' Liability Act it is necessary to prove that the defendant was negligent and that such negligence was the proximate cause of the accident, in whole or in part. (Tennant v. Peoria and Pekin Union Railroad Co. 321 U.S. 29, 88 L.ed 520.) The plaintiff contended and the jury specifically found that the defendant did not warn the decedent of the intended movement of cars on "L" Yard lead, that the rear light on the Fay engine was not lighted prior to and at the time of the accident, and that the decedent was not himself guilty of negligence. In her complaint the plaintiff had also alleged that the area was improperly lighted and that the defendant had failed to furnish a safe place to work.

Judges are not free to reweigh the evidence and set aside the jury verdict merely because they, as individuals, might have arrived at different conclusions. (Tennant v. Peoria and Pekin Union Railroad Co. 321 U.S. 29, 88 L.ed. 520.) Only where there is a complete absence of probative facts to support the conclusion reached, does reversible error appear. (Starck v. Chicago and North Western Railway Co. 4 Ill.2d 616; Bonnier v. Chicago, Burlington & Quincy Railroad Co. 2 Ill.2d 606; Wetherbee v. Elgin, Joliet and Eastern Railroad Co. 191 Fed.2d 302.) As the court said in Lavender v. Kurn, 327 U.S. 645, 90 L.ed. 916: "But where, as here, there is an evidentiary basis for the jury's verdict, the jury is free to discard or disbelieve whatever facts are inconsistent with its conclusion. And the Appellate Court's function is exhausted when that evidentiary basis becomes apparent, it being immaterial that the court might draw a contrary inference or feel that another conclusion is more reasonable." Although the evidence in this case is, upon some points, conflicting, we cannot say as a matter of law that the verdict was not properly supported by the evidence. After considering the record as a whole, we are of the opinion that there was sufficient evidence presented from which a jury could reasonably conclude that the defendant was guilty of the negligence charged and that such negligence was the proximate cause of the decedent's death.

Defendant further contends that the court erred in admitting in evidence the actuary's calculations of plaintiff's projected pecuniary loss, and that since the verdict of the jury closely approximated the sum suggested by the actuary, that testimony was misleading and warrants reversal of the cause.

Although actuarial calculations were presented in a death case under the Federal Employer's Liability Act in Starck v. Chicago and North Western Railway Co. 4 Ill.2d 611, the propriety of that evidence was contested only in a limited respect.

Elizabeth Young, the actuary, is an expert in actuarial work, having specialized in actuarial science at the University of Iowa where she received a degree in that branch of education, and, further, had twenty-four years experience as a consulting actuary. Let us examine her testimony rather fully. On direct examination it was assumed that decedent had a gross income in 1951 of $5542.70, and subtracting from that sum income tax deductions and $50 per month for his personal expenses would leave a net average monthly balance of $378.09). Then Miss Young testified that she had determined the present cash value of future lost monthly contributions of $378.09 over a period of 38 years and 8 months, discounted at 2 1/2 per cent and at 3 per cent, using the compound discount tables in making her calculations. It was assumed that the $378.09 was the amount that the dependents of the deceased would have received each month had he lived and continued to be employed with the same income.

Over objection Miss Young testified that the present value of such amount for such a period at 2 1/2 per cent is $112,904.37 and for 3 per cent the value would be $104,418.69. She further testified that the present value of $1 per month payable at the end of each month for 38 years and 8 months, assuming an interest rate of 3 per cent, is $276.17416. If this sum is multiplied by $378.09, you will have again the sum of $112,904.37. Defendant argues that by the actuary predicating her ultimate results upon a specific sum of $378.09 and ...

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