Appeal from the Circuit Court of Cook county; the Hon. DANIEL
A. ROBERTS, Judge, presiding. Reversed and remanded.
PRESIDING JUSTICE KILEY DELIVERED THE OPINION OF THE COURT. This is an F.E.L.A. case with verdict of not guilty and judgment against plaintiff who has appealed.
On June 14, 1955, at about 3:30 A.M. plaintiff, then a hostler employed by defendant in its Hawthorne Yards near Indianapolis, fell from the side of a locomotive while engaged in the filling of a locomotive sand box. The sand boxes were filled from an overhead trackside container of sand, by means of a flexible rubber and wire hose about sixteen feet long and three inches in diameter. The outlet end of the hose was a ten inch steel section, with a shutoff valve to control the flow of sand.
Plaintiff had filled the "front" sand boxes located on top of the steam locomotive boiler near the center. He then walked on a "running board" along the right side of the boiler toward the front "door" of the locomotive cab. He inserted the hose through the open "door" and into the top of the "rear" sand box on that side of the cab. While in the process of removing the hose from the cab, he fell from the "running board" about ten feet to the ground.
The question is whether the judgment ought to be reversed for alleged errors in the trial.
Plaintiff contends that the trial court erred in striking from the complaint the following charges: "c) In causing and permitting the sand hose . . . to be filled with sand and to be too heavy and cumbersome for one man to handle. d) In failing to furnish plaintiff with adequate and sufficient assistance . . . to perform the work. . ." He also claims that the court erroneously refused to instruct the jury on these charges as he requested and in giving an instruction which omitted the charges.
Defendant argues that there was no "proven charge" withdrawn from the jury; that plaintiff did not object to the ruling; and that the charges were stricken to clarify the issues.
There is no merit to defendant's first argument. There was testimony that the running board upon which plaintiff stood was about two feet wide of which only one and one half feet could be stood on because of the locomotive boiler curve; that the surface of the board was "worn and smooth" with the ridges gone on the part where he was standing; that to fill the sand box inside the cab he had to lean through the "front door," bend over in a "stooped position" and twist his body to the right to insert the end of the hose into the box and use the control valve; that he filled the box, pulled up the hose and "backed out" from the opening; that he had to use both hands on the hose which weighed one hundred pounds; and that the sand hose was "strictly for diesels." There was also testimony that plaintiff asked his superior for help in sanding "this engine" because it was "hard for one man to sand it by himself," and that he told another superior that one man should be inside the cab and one outside so that while the hose was being fed out of the cab, the outside man could hold the hand rail along the locomotive boiler. He was not given help and was told that if he dropped the hose he would be given "time off." We think these facts were enough prima facie to take the charges to the jury. Rogers v. Missouri Pacific R. Co., 352 U.S. 500, 506.
A fair reading of the record of the colloquy between the court and counsel on the motion to strike the charges leaves no room for a conclusion that plaintiff agreed to the motion or the ruling. He argued the evidence supporting the charges, agreed to some amendments of some charges of negligence but refused to eliminate the charges and expressed the desire to protect his right to complain of the ruling.
After striking the specific charges, the trial court refused an instruction for plaintiff which included these charges and submitted an interrogatory to the jury which virtually eliminated the charges from jury consideration by focusing the jury's attention upon the question of defendant's negligence based on the condition of the running board. These events plus the presence of the running board as an exhibit contributed to bring about a prejudicial result.
The interrogatory submitted to the jury over the objection of plaintiff at the request of the defendant read as follows: "Was the condition of the running board in question on defendant's locomotive the proximate and direct cause of the plaintiff's fall?"
The U.S. Supreme Court in Rogers v. Missouri Pac. R. Co., 352 U.S. 500, 507-508, in deciding the question of proximate cause had no place in F.E.L.A. cases stated:
"The employer is stripped of his common-law defenses and for practical purposes the inquiry in these cases today rarely presents more than the single question whether negligence of the employer played any part, however small, in the injury or death which is the subject of the suit."
The special interrogatory should not have been given for the reason that it presupposes a burden, of proving proximate cause, which plaintiff did not have. We need not decide whether the giving of the special interrogatory was erroneous for any other reason.
We are of the opinion, for the reasons given, that reversible error was committed at the trial and that ...