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Selby v. Chesapeake & Ohio Ry. Co.

SEPTEMBER 26, 1956.

MOZELLE SELBY, EXECUTRIX OF ESTATE OF MORRIS C. SELBY, APPELLEE,

v.

CHESAPEAKE AND OHIO RAILWAY CO., APPELLANT.



Appeal from the Superior Court of Cook county; the Hon. WILBERT F. CROWLEY, Judge, presiding. Judgment affirmed.

JUDGE LEWE DELIVERED THE OPINION OF THE COURT.

Rehearing denied November 7, 1956.

This is an action under the Federal Employer's Liability Act (45 U.S.C.A. § 51) and the Safety Appliance and Equipment Act (45 U.S.C.A. § 11) for injuries to, and the subsequent death of Morris C. Selby, defendant's brakeman, alleged to have resulted from the failure of a hand brake to work efficiently. There was a verdict and judgment in plaintiff's favor for $25,000. Defendant appeals.

Plaintiff's decedent, Morris Selby, was injured on June 19, 1950 while engaged in riding cars off the hump in defendant's yards at Stevens, Kentucky. On that day freight cars were being taken from Yard 3 and shoved eastward over the hump to Yard 4 which was the distributing or "outgoing yard." This yard had 12 tracks. Located in the center of these tracks was a motor track used by a motor car which transported brakemen back to the apex of the hump. North of the motor car track were tracks numbered 7, 8, 9, 10, 11 and 12; the other tracks numbered 1 to 6 were located south of the motor track.

Shortly before he received the injury here complained of, Selby boarded the east end of two cars moving eastward on track 9 in Yard 4 at a point east of the apex of the hump. Track 9 in Yard 4 was used for cars going to the repair shop.

The hand brake in question consisted of a hand wheel and a shaft extending approximately two feet above the roof of the car. On the top of the car there is a ratchet wheel engaging a pawl. In order to operate the hand brake, the pawl must be disengaged by the brakeman's foot so that the brake wheel and shaft can be turned by hand. While the pawl is thus disengaged, a brake club, about 20 to 24 inches in length, is inserted through the spokes of the wheel and braced against the shaft. Pressure on the brakes is exerted by the brakeman pushing the brake club with his left hand and simultaneously pulling at the wheel with his right hand.

Plaintiff produced no eyewitnesses to the alleged occurrence. Three witnesses testifying in behalf of defendant said that they saw Selby make the particular ride at various points between the hump and where the cars were stopped on track 9. Defendant's witness Keating testified that from his position 600 feet away he saw Selby from the back bring the cars to a stop, dismount and walk from the cars to the motor car track. The only unusual fact he observed was that Selby stopped the cars just after they entered track 9. The general practice was for the brakemen to ride the cars well onto the track, leaving sufficient clearance for cars that might later be humped onto the same track.

Defendant's witness Moenning testified he saw Selby operating the brake as the cars came onto track 9. These cars were not, as normally done, ridden up to a car which had been previously switched to track 9, but instead, Selby stopped the cars short of this third car. The third defense witness who saw Selby ride the cars said that Selby dismounted and "looked" at the cars after they had been brought to a stop.

The evidence shows that after bringing the cars to a stop, Selby went over to the motor car track for a return ride to the hump, and that since the motor car was crowded, he stood on the running board, holding onto grab irons on either side. Plaintiff's witness Coates testified that after the motor car had moved a short distance, he noticed Selby ". . . just sort of roll over sideways . . . and then I noticed there was something wrong." Coates held Selby so that the latter would not fall from the motor car. Coates did not observe any markings on Selby who was wearing a cap and an overall jacket at the time. Selby "pushed up" his glasses but Coates did not see if the glass was broken. Coates also testified that though there was much noise he heard Selby mumbling something that sounded like "bad brake." Other witnesses said that after Selby's removal from the motor car they noticed that there was blood trickling from his mouth. When the motor car stopped, Selby, unconscious, was placed on a stretcher to be taken to the hospital. While on the stretcher Selby rallied somewhat, raised up, and asked what had happened.

About noon on the day of these occurrences, Selby was visited by his wife and daughter at the hospital. They testified he had a red swollen spot on the left side of his head, that his glasses were broken and bent, and that his leg and arm had "marks" on them.

As grounds for reversal, defendant urges that there was failure of proof that the hand brake was defective or failed to function efficiently; that there was a failure to prove causal connection between the accident and an inefficient hand brake; and that plaintiff failed to prove a causal connection between injury or death and an inefficient hand brake. Defendant insists that the court erred in denying its motion for a judgment notwithstanding the verdict.

Selby's medical history was complex. He suffered a mishap in 1939, when he injured his leg and back. In 1942, he was injured when he fell from a moving engine and struck his head. In 1949, Selby again struck his head while at work. About two hours after the 1949 incident, Selby struck his head a second time at his home. After both the 1942 and 1949 occurrences, Selby had a convulsive attack, the cause of which was undetermined. He was returned to work after each of these incidents.

After the occurrence in question, in 1950, Selby experienced seizures four or five times a week, described as Jacksonian in nature, indicating the cause to be a lesion or tumor of the left side of the brain. These seizures produced headaches, vomiting and a weakness to the right side of the body. Selby consulted several doctors after the 1950 accident concerning both the seizures and the back condition. An osteopath diagnosed the back condition as a sacroiliac strain. In April 1954 Selby had an operation in which a slowly growing malignant tumor on the left side of his brain was partially removed. There was evidence tending to prove that total removal would have hastened Selby's death. Selby died December 28, 1954 after having been employed by defendant about 27 years.

[1-3] Under the named federal statutes, this court is bound to apply federal rules rather than state rules of law. Uniformity is an object of this legislation. (Brady v. Southern Ry. Co., 320 U.S. 476; Virgil v. New York, C. & St. L.R. Co., 347 Ill. App. 281.) Decisions concerning inefficient hand brakes recognize two methods of showing a railroad's liability. All that need be proved is either a specific defect in the brake, or a normal, ordinary operation by the brakeman and a failure of the brake to function efficiently. Negligence need not be proved. (Myers v. Reading ...


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