Appeal from the Superior Court of Cook county; the Hon. NORMAN
C. BARRY, Judge, presiding. Judgment affirmed.
JUDGE ROBSON DELIVERED THE OPINION OF THE COURT.
Rehearing denied June 19, 1956.
This appeal involves a death action brought under the Federal Employers' Liability Act (45 U.S.C.A. secs. 51-59) by the plaintiff, widow and administrator of the estate of Bohdan Wawryszyn, deceased, against his employer, the defendant, Illinois Central Railroad Company. A jury trial resulted in a verdict of $90,000 for the plaintiff. The trial court overruled defendant's motions for judgment notwithstanding the verdict and for a new trial and entered judgment on the verdict. Defendant appeals.
Defendant's principal contentions are that the trial court erred because (1) there was not sufficient evidence of negligence to sustain the verdict; (2) even if defendant was negligent, such was not the proximate cause of decedent's injury; (3) certain testimony of plaintiff's witness Bianchi was improper and prejudicial to defendant, and (4) improper and prejudicial actuarial testimony was admitted into evidence.
A review of the evidence in the light most favorable to the plaintiff reveals that decedent was a member of a freight handling crew in the employ of the defendant railroad company. Their job was to unload freight from dollies into boxcars. On November 6, 1951, checkers Phillips and Threat unloaded a crated diesel motor, weighing between 3,300 and 3,400 pounds, from a truck on the loading platform onto a four-wheel dolly. The four-wheel dolly was six feet long, three feet wide, and thirteen inches to the top of the bed. It had four swivel wheels. The dolly was new and in good condition. These men testified that they had instructions to place heavy freight on a piano dolly, which was about six inches closer to the ground than the four-wheel dolly, and had six nonswivel wheels. The defendant had only four piano dollies, and the men were unable to locate one not in use. They informed the foreman, Streb, of this fact, and Streb then helped them put the crate on the four-wheel dolly.
Plaintiff's witness Bianchi, an assistant foreman for defendant at the time of the accident, testified that a four-wheel dolly is easier to tip over than a piano dolly; that the four-wheel dolly was made for merchandise under 100 pounds, such as cartons; that the four-wheel dolly was not the customary one for hauling the type of load here involved; that there were instructions by the foreman to place heavy loads on piano dollies. He testified, over objection, that it was not good practice to place so heavy a load on a four-wheel dolly, and that other railroads employed other methods which were safer.
There was testimony that the nearer the dolly is to the ground the less the possibility of any cargo falling off when being unloaded, and that the piano dolly is nearer the ground than the four-wheel dolly. On cross-examination one of defendant's witnesses admitted that it was more difficult to unload a heavy load from a dolly with swivel wheels than one with fixed wheels.
It was the job of decedent's crew to unload this crate from the dolly in the boxcar. The dolly was brought into the boxcar and pushed to its west end. A boxcar is about nine feet wide. Two of the crew members, Zick and Washington, jacked up the east end of the crate and placed a roller underneath it. It was raised approximately six to eight inches. The men then attempted to push the crate off of the dolly. The west end of the dolly tipped down and touched the floor with the diesel crate on top of it. It was in a position wherein the dolly and motor were resting on the west end and the east end of the dolly was lifted. They were unable to pull the dolly out from under the crate. Decedent was standing in the center of the south side of the load. Zick went to get a tractor to pull out the dolly. Suddenly the cargo fell to the south side pinning the decedent, and crushing the lower part of his body. He subsequently died from these injuries. After the accident it was observed that the cargo was top heavy. One of the crew members testified that just before the crate fell he stated out loud: "I don't like it. It looks dangerous," and that decedent failed to move to a position of safety.
It is first argued that defendant's motion for a directed verdict and judgment notwithstanding the verdict should have been allowed. Recent decisions of the federal courts and our own state courts have held that unless there is a total failure or lack of evidence tending to prove negligence in an F.E.L.A. action, a verdict should not be directed. Wilkerson v. McCarthy, 336 U.S. 53; Louisville & N.R. Co. v. Botts, 173 F.2d 164; Bonnier v. Chicago, B. & Q.R. Co., 2 Ill.2d 606; Glime v. New York Cent. R. Co., 5 Ill. App.2d 509. Plaintiff's complaint contained various allegations of negligence. Among these was the charge that defendant employed improper equipment for doing the particular work involved, and that it undertook to accomplish the work in an unsafe method. Does the record totally lack any evidence tending to support these charges?
The record indicates that defendant employed two types of dollies for loading and unloading cargos into boxcars; that the piano dolly was used for heavy cargos, and the four-wheel dolly for light cargos; that the employees had instructions to use the piano dolly for heavy cargos; that the piano dolly, because of its nonswivel wheels, is easier to unload than a four-wheel dolly; that the piano dolly, because of its low axel and strong balance, is not likely to tip when heavy cargos are placed on either end; that the accident in question occurred after the four-wheel dolly had tipped to the floor, putting the heavy cargo in a precarious position. When we consider this evidence in the light of the recent cases referred to, we are impelled to hold that the question of defendant's negligence was properly one for the jury.
Defendant further contends that judgment should have been entered in its favor because its negligence, if any, was not the proximate cause of decedent's injury. Defendant's theory seems to be that the use of the four-wheel dolly merely created the condition under which the accident occurred, and that the proximate cause of injury was decedent's own failure to take a safe position after the dangerous condition came into being. In support of this position defendant cites Seith v. Commonwealth Elec. Co., 241 Ill. 252, 259, where the court said:
"To constitute proximate cause the injury must be the natural and probable consequence of the negligence, and be of such a character as an ordinarily prudent person ought to have foreseen might probably occur as a result of the negligence. It is not necessary that the person guilty of a negligent act or omission might have foreseen the precise form of the injury, but when it occurs it must appear that it was a natural and probable consequence of his negligence."
We fail to understand how the foreseeability argument can be of any help to defendant. The fact that two different tyes of dollies were used for light and heavy cargos, in itself, indicates that defendant foresaw the inadvisability of using the four-wheel dolly for heavy cargos.
The following language from Dowler v. New York, C. & St. L.R. Co., 5 Ill.2d 125, 132-3, is ...