Appeal from the Circuit Court of Rock Island county; the Hon.
A.J. SCHEINEMAN, Judge, presiding. Affirmed.
JUSTICE CROW DELIVERED THE OPINION OF THE COURT.
This is a proceeding by the J.I. Case Company, the intervenor-appellant, upon an amended and supplemental intervening petition in the pending cause to be reimbursed, or indemnified, under the then applicable Section 29 of the Workmen's Compensation Act (ch. 48, Ill. Rev. Stats., 1949, par. 166) for the amount of an award of workmen's compensation paid, or to be paid, to its employee, Richard L. Manion, the plaintiff-appellee, for certain injuries, after the employee had recovered a $12,500 judgment for damages for such injuries in a negligence action against a third party, the Chicago, Rock Island and Pacific Railway Company, the original defendant. The petition alleged, inter alia, the relationship between the intervenor and the plaintiff Manion of employer and employee; the injuries arising out of and in the course of his employment; the award of $8237.76, under the Workmen's Compensation Act; and that his injuries were not proximately caused by the negligence of the employer, the Case Company, or its employees, but were caused under circumstances creating a liability for damages on the part of someone else. The jury rendered a verdict finding the Case Company, intervenor, guilty of negligence which was a proximate cause of the injuries to Manion, its employee, after the denial by the Trial Court of the motions of the plaintiff Manion for directed verdict at the close of the intervenor's evidence, and the respective motions of the plaintiff and intervenor for directed verdicts at the close of all the evidence. The Trial Court entered judgment on the verdict, after denial of the intervenor's motions for judgment notwithstanding the verdict and for new trial. This appeal is taken from that judgment.
It is the intervenor-appellant's theory that: (1) as a matter of law, there is no competent evidence of negligence of it or its employees proximately causing the injuries and the sole proximate cause thereof was either Manion's contributory negligence or the railroad company's negligence, or, alternatively, the verdict finding the intervenor guilty of negligence proximately causing the injuries is against the manifest weight of the evidence; (2) the Court erred in admitting certain testimony of an attorney for the plaintiff-appellee; and (3) the Court erred in refusing certain instructions for the intervenor-appellant and in giving certain instructions for the plaintiff-appellee.
The trial court, upon a prior hearing of the intervenor's original intervening petition to join in the action and for reimbursement out of the judgment for its workmen's compensation payments, had held, in effect, in sustaining the intervenor's motion to strike the plaintiff's answer to its intervening petition and in denying the plaintiff's motion to strike the original intervening petition, that it was not necessary for the intervenor to plead and prove freedom from negligence on its part and that of its employees (excluding Manion). On a prior appeal to this Court, by the present plaintiff-appellee, he having elected to stand by his answer and a judgment having been entered for the intervening petitioner, that judgment was reversed and the cause remanded with instructions to overrule the intervenor's motion to strike the plaintiff's answer to the original petition, and to allow the intervenor to amend its petition in those particulars, if so advised: Manion v. Chicago, R.I. & Pac. Ry. Co. (1954), 2 Ill. App.2d 191. It was upon an amended and supplemental intervening petition subsequently filed that the cause was thereafter submitted to the present jury upon the sole issue of whether there was or was not negligence of the employer, the intervenor, or its employees (excluding Manion), which was a proximate cause of the injuries to the plaintiff employee.
Ch. 48, Ill. Rev. Stats., 1949, par. 166, being Section 29 of the Act, provided, in part, so far as material:
". . . Where the injury or death for which which compensation is payable under this Act was not proximately caused by the negligence of the employer or his employees and was caused under circumstances creating a legal liability for damages on the part of some person other than the employer to pay damages, such other person having elected not to be bound by this Act, then legal proceedings may be taken against such other person to recover damages notwithstanding such employer's payment of or liability to pay compensation under this Act. In such case, however, if the action against such other person is brought by the injured employee or his personal representative and judgment is obtained and paid, or settlement is made with such other person, either with or without suit, then from the amount received by such employee or personal representative there shall be paid to the employer the amount of compensation paid or to be paid by him to such employee or personal representative. . . ." (Emphasis added.)
Although there is no pleading by Manion, the plaintiff, specifically charging his employer, the Case Company, the intervenor, with any particular act or omission constituting negligence proximately causing his injuries, such was not necessary; the relief sought under the amended and supplemental intervening petition, pursuant to the statute, was necessarily based upon the affirmative allegation (in part) that neither the intervenor nor its employees (excluding Manion) were guilty of negligence that was a proximate cause of the injuries sustained; the burden to so plead and prove those statutory substantive requirements was on the intervenor: Manion v. Chicago, R.I. & Pac. Ry. Co., supra; and Manion's answer (in part) to the amended and supplemental intervening petition denied those allegations and denied the intervenor was entitled to be indemnified or reimbursed.
The evidence is somewhat in conflict, but the facts are substantially as follows, and where there is some material conflict in the evidence, we shall endeavor to note such:
On November 14, 1949, at about 9:00 p.m., Manion, in the course of his employment, was driving an empty material-hauling jeep north across a series of three east-west tracks of the Chicago, R.I. & Pac. Ry. Co., the original defendant, where the tracks traverse a concrete inter-plant crossing between portions of the Case Company's plant lying to the north and other portions thereof lying to the south of the tracks, at the Sixth Street crossing, Rock Island. The Case Company had, for many years, enjoyed an easement to cross the right-of-way at this point, but, subject to that, the railroad had complete ownership of its right-of-way, including the fixed equipment thereon and, of course, the trains operated thereon. The railroad had been doing some repair work at the crossing in the month prior to the accident. The general foreman, plant inspector, and safety engineer of the Case Company knew that such work was being done. Manion and the other Case Company employees were expected and required to use that crossing in passing from and to the respective parts of the company's plant located on both sides of the tracks, when necessary in the discharge of their duties. The company's safety engineer said that this crossing was probably one of the most dangerous spots in the plant, that they confined their activities to the things that give them the most trouble, and though the right-of-way was in the "jurisdiction" (as he put it) of the railroad, the Case Company was concerned with and interested in the safety of its employees going from one part of the plant to the other and in the safety of the crossing. Manion's jeep was struck on the most northerly track by a westbound diesel switch engine operated by the railroad's crew, from which collision he received his injuries. Manion and his employer, the Case Company, were operating under the Illinois Workmen's Compensation Act.
Manion had been working the night shift for a considerable period of time prior to the accident, and had been furnished a jeep or small tractor and truck attached for the purpose of delivery of material in and to various parts of the Case plant located on the south side of the right-of-way, and occasionally, but not every night or regularly, was required to go to the company's foundry yard on the north side of the tracks to load material. On the evening in question, for the first time in the week before the accident, he was, in the performance of his duties, going to the north side of the tracks to load certain castings from the foundry yard there, and he used the same jeep he had been using previously. When empty the jeeps made considerable noise in going over the tracks. There were, Manion said, no headlights on the jeep, the original lights having been knocked off; he said there were lights on it during the week prior to the accident, but not on the night of the accident; Bill Griffith, another Case Company employee, said no lights were operating on Manion's jeep. There is contrary evidence to the effect there were lights on Manion's jeep, but, in any event, there were evidently no lights in operation on it at the time, either because they had been knocked off or were not turned on by Manion.
Because, for whatever reason, his headlights were not in operation, he had followed another jeep driver, the above Bill Griffith, who had lights on his jeep, out of a so-called tunnel-way from one of the buildings, going north toward the tracks. The so-called tunnel-way is evidently a vehicular passageway at ground level into or through one of the Case buildings south of the tracks. There was a mesh wire fence on the south side of the right-of-way extending easterly from a gate which gave access to the crossing. It was about 61 feet from the tunnel-way to that fence, and about 31 feet from the fence to the most northerly track at the crossing. It had been dark that evening since as early as six p.m., and Manion said he had been working all around the plant without lights on his jeep, which was contrary to the Case Company rules. Around nine p.m., he had asked Griffith to cross the tracks with him to help load the castings, and Griffith had preceded him out of the paint or repair shop south of the tracks and he followed Griffith's jeep, about a length behind. Manion stopped about opposite the end of the wire fence on the south side of the railroad right-of-way, and Griffith from then on evidently no longer paid any attention to him. Manion then just started off over the tracks, after glancing both ways a little and seeing nothing. Griffith did not look to observe Manion after Griffith started to cross the tracks, Griffith having no knowledge of Manion's activities from a point about 40 feet south of the tracks before the collision. Manion went right on from the fence and did not look again as he crossed the series of tracks. There were no other railroad cars spotted on any tracks east of the crossing, nor were there any other obstructions on the right-of-way to vision to the east, although there was some lumber etc. material of the Case Company piled against its side of the wire fence on the south edge of the right-of-way which might have been a partial obstruction to vision to the east. Manion's jeep was struck when he arrived at the third or most northerly track north of the fence. He says he did not see or hear the westbound engine approaching from the east before he was struck. Griffith says he heard no bells or any other sound and saw no lights of the approaching engine, though there is evidence the engine headlights were on.
Manion had been bawled out by the Case Company several times before for not stopping at the tracks and looking before crossing, as required by the safety rules of the Company, and he admitted that a partial view of the tracks to the east was possible even in the area between the buildings lying to the south of the fence and the right-of-way.
There were some exterior lights on the Case Company buildings, north and south of the tracks, which were apparently turned on, which shown out over the area adjacent to the building to the south from which Manion emerged towards the tracks and over the area adjacent to the building to the north across the tracks, and which some witnesses said also tended to throw some light over the whole areaway at the crossing and on either side of the tracks, and some said that there was sufficient light at the crossing for visibility, one of the intervenor's witnesses described the visibility on the right-of-way as "fair". The building to the south on which one or more of those exterior lights were affixed was evidently about 92 feet south from the most northerly track where the accident occurred, and it appears from one of the photographs in evidence that between that building and the tracks and extending westerly from the gate in the mesh wire fence was a solid wooden fence, piled against which on the Case side was a large amount of coal or other material, some of it being higher than the wooden fence. The building to the north on which one or more of those exterior lights were affixed would appear from the photographs to be 30 feet or so north of the most northerly track and the points on that building where such lights were placed were evidently, respectively, some 40 to 50 feet west and some 70 to 80 feet or more west of the point of the accident and those lights were not pointed towards the crossing. The primary purpose of the exterior building lights was evidently, as the Case Company's plant inspector said, to light up the plant yards, and they were evidently particularly focused on the yards and not particularly, but only incidentally, if at all, on the inter-plant railroad crossing. Manion said those lights did not shed light all the way across the crossing, and he was not sure they were on that night. Griffith said there were no lights on the crossing area itself, the building lights did not light up the tracks at the crossing, it was very dark, and he could not see the roadway without the lights on the jeep he was driving. The weather was apparently clear.
Manion knew of the railroad's automatic crossing bell located on the right-of-way north of the northernmost track and somewhat east of the crossing, but he did not hear any bell ringing before the accident. The bell had been there a long time. Its purpose was to aid in protecting the crossing for the Case Company employees and anyone else using the crossing. When in operation that bell would ring upon a train's approaching within 100 to 200 feet of the crossing. He knew generally the time during the night shift when the railroad switch engine came in; he was travelling only about three miles per hour after leaving the fence until he was hit; but he did not see or hear the approaching train. Manion was aware of the Case Company safety rules, which were posted, and which required the use of only safe equipment, and prohibited the use of defective equipment, which was to be promptly reported for repair, although apparently the company had no policy of inspecting the jeeps before they were used to see whether they were properly equipped. He had never complained to anyone in the company that he did not have lights on his jeep, or that they were defective. He had no previous notice that the automatic bell at the crossing was out of order or disconnected prior to the accident, and in the two or three weeks before the accident he had not noticed whether it was working or not. The bell had, in fact, been disconnected by the railroad company some 30 days prior to the accident and was not working at the time. There is some evidence, which we shall later ...