Appeal from the Superior Court of Cook county; the Hon. JOHN
J. LYONS, Judge, presiding. Affirmed.
JUSTICE BRYANT DELIVERED THE OPINION OF THE COURT.
Rehearing denied October 23, 1958.
This is an appeal by the defendant in a common law action to recover damages for personal injuries alleged to have been suffered by the plaintiff due to the alleged negligence of the defendant in delivering for loading and use in interstate commerce a tank car which was in defective and unsafe condition for its intended use, wherein the jury returned a verdict for the plaintiff for $32,500, upon which, after defendant's post-trial motions were denied, judgment was entered.
The plaintiff, Roy D. Rylander, was employed by the Interlake Iron Company on February 19, 1951 as a stillman's helper. His duties consisted of mixing various by-products of tar, hereinafter mentioned, in various tanks and loading these products into tank cars.
The defendant, Chicago Short Line Railway Company, is a common carrier. It has a short mileage in the industrial areas in Chicago and vicinity. Its principal function is to render switching service and to pick up freight cars and deliver them to intermediate carriers for the ultimate purpose of transportation to the consignees, and to accept cars from intermediate carriers and deliver them to local consignees principally the Interlake plant and the Youngstown plant. It had no contractual relationship with the plaintiff. It performed common carrier service for the plaintiff's employer, Interlake Iron Company.
The Interlake Iron Company operated a large industrial plant and owned railroad tracks within the plant enclosure used in operating the plant. Interlake had no motive power for railroad movement. The defendant operated a locomotive and hired the crew and moved all of the freight cars within the Interlake plant. The defendant also leased certain tracks from Interlake and owned certain other tracks within Interlake's plant, and owned and operated certain tracks adjacent to the Interlake plant. These tracks were used, in part, for storage, in part for the inspection of cars, and in part for minor repairs found necessary upon inspection. Interlake was not a common carrier. A part of the by-products of the operation of the company were creosote, light oil, heavy oil, carbolic naphthalene and pitch.
Tank cars were usually brought into the Interlake plant in the late afternoon and spotted by the defendant for loading during the night. Tank cars were not owned either by Interlake or the defendant, but were leased by Interlake from the General American Transportation Company, whose business it was to furnish cars, upon lease, to prospective shippers of liquids. The cars were delivered by the defendant Chicago Short Line, as a part of its duty as a common carrier, to the consignor, the Interlake company, for loading. The car involved in the alleged injury to the plaintiff was so delivered and spotted in the late afternoon before the alleged injury occurred. The Chicago Short Line, defendant, in common with most other common carriers, did not own any tank cars. In that sense of ownership the defendant did not furnish tank cars to Interlake or to any other users of tank cars.
The defendant as a common carrier maintained a car inspection system under the supervision of a Master Car Builder, who supervised car repairs, safety and car inspectors. There was a car inspector employed all day in the yard at the Interlake plant. He inspected both empty, about to be loaded, and loaded, about to be emptied, cars. The inspector was an employee of the defendant.
When a tank car which had been leased by Interlake was received by the defendant it was set for loading, or in storage. When Interlake needed a tank car it ordered out one of the tank cars which it had leased which was available and the defendant moved that tank car to the loading place. When a tank car is tendered to the defendant by an intermediate carrier, if it complies with certain basic regulations of the Interstate Commerce Commission the defendant may not refuse to accept the car from that carrier. It must accept the car and place it upon the repair tracks if repairs are necessary. If the car has a defective wheel, a cracked side frame, broken couplings or broken driving gear, the defendant would repair it in the shop when it was delivered to it by connecting carriers. The defendant repairs safety appliances, including a defective pin lifter, defective brake shoe and dragging brake beam. If a tank car was leaking, such a car would be stenciled: "Don't reload this car on account of leaking. Return home for repairs," and the defendant would notify the owner of the tank car that is, the General American Transportation Company, in case of a car owned by it. If there are additional types of repairs necessary, tank cars are returned to the owners for repairs. It is required that a tank car be a good, complete sealed unit. When the defendant inspected cars it looked to see if the tank cars had any conditions which might cause leakage. They walked around the car; they looked underneath it for defects; they could see the condition up on the dome of the car; they could see the lugs from both sides of the end of the car when they are in place holding the top down, but they could not see if they are broken. Car inspectors were required to know the condition of the cover on the dome of the car. They did that by determining if there is spillage, but they inspected from the ground below and did not climb on the top of the car. But in inspecting box cars they climbed upon the top of the cars and looked at the running-boards on the top thereof.
On February 19, 1951 a tank car which for some time had been leased by Interlake from the General American Transportation Company was moved by the defendant and placed in a position for loading. On January 9, 1951 that car had been shipped by Interlake to Texas and had been returned on February 17th. On that day the defendant moved the car on Interlake's property, within the plant where the defendant maintained an inspector. These tracks were the tracks leased by the defendant from Interlake and used for storage. This car, leased to Interlake by the General American Transportation Company, was delivered to the defendant empty and under customary procedure, should have been inspected before it was set for loading.
The car that was spotted for loading was a normal tank car, cylindrical in shape, with a dome on top in the center. The dome had a diameter of about 5 feet and a removable cover in the dome which had a diameter of one and a half to two feet. The top of the cylindrical body of the tank car was about 10 1/2 feet from the ground and the dome extended above that about 3 feet. There was a narrow platform on the side of the dome or shell about 8 inches wide and about 2 feet below the top of the cylindrical body of the tank this making the platform about 5 feet below the top of the dome. The cover of the dome weighed about 50 or 60 pounds and was secured to the dome by a chain. It had two knobs on top of it about 4 inches high which were used to lift and move it. This top was held in place by lugs placed around the circle of the dome opening which were brought down into slots in the opening and were tightened in place with nuts on the lugs, which, when screwed down, held the cover firmly in the opening on the top of the dome.
Interlake provided a permanent platform structure for the loading of tank cars. It is about 3 feet wide and 6 feet long, with a stairway attached to it, and attached to the permanent platform is a hinged platform or drawbridge, which, when it is lowered out onto the tank car, hits the side of the car about level with the top of the tank cylinder. On February 19th the car was so spotted that the hinged platform, when extended towards the car, was opposite the dome itself.
On February 19, 1951, when the plaintiff came to work, he found a tank car which the defendant had spotted for loading with creosote. He lowered the bridge and went out on the platform. The car was empty. While the cover of the dome was in place, only two or three of the lugs, with the nuts, were in their proper slots and screwed down to hold the cover in place. He used an 18-inch Stillson pipe wrench and loosened the nuts on the lugs which were holding the top in place. After he loosened the nuts he pulled the lugs back out of their slots, removed the cover from the hole in the top of the dome and set it on one side of the dome, where it was held with a chain. The car is loaded with creosote only through the top of the dome. He checked a valve inside of the dome to make sure that it was closed. Then he went back across the bridge to the platform and down the stairs and underneath the car, where there is a boot cap that fits on a drain leg so that it won't leak any of the solution inside the car. He took off the boot cap to make sure that the valve in the drain leg was closed. He then went up on the drawbridge again and put the spout in the opening of the dome. After dropping the nozzle of the pipe into the opening of the dome he steamed the lines to make sure the lines were open from the mixing tank into the car. Then he started to fill the car with a creosote solution which must be loaded at a temperature of 170 degrees Fahrenheit. He wore rubber gloves and heavy work shoes with cork bottoms for this work. When the car was a quarter or half full he went underneath the car again to see that the valve was not leaking and put the boot cap back in place. When the car was full, to within 4 or 5 inches below the top of the cylindrical body, he went to the mixing tank, about 50 feet away, to shut off the valve, and went to the platform where there was a switch to shut off the pump. He then sent steam back through the line so that there would be nothing left in the line to harden. Then he took the spout out of the car. The spout is about 7 feet long, with an elbow, with another pipe about a foot long at the end of the elbow. The pipe is about 6 inches in diameter. Then, following the usual and customary methods, he got upon the top of the dome to put the cover back in place. It weighed 50 to 60 pounds, and it was physically impossible to handle the cover and set it down in place and turn it in position from anywhere except the dome. He got on top of the dome in a squatting position, took hold of the two knobs on the dome and set the top in the proper position and turned it so that the lugs would be opposite the slots in the top. He set the notches on the side of the cover down into the grooves of the top. They went down about half an inch, and then he turned it, and when it got into the last groove it dropped all the way down and stayed in position, and in that position the lugs would fit in their proper slots. He started to put the lugs in place and tighten down the nuts. The first two raised from the side of the car and fitted into place, and the nuts screwed down without trouble. He attempted to put the third lug in place and found that it was covered with creosote and was stuck to the car. That lug had not been used to hold the tank cover in place when it had been delivered as an empty car. He used his wrench on the lug and finally got it loosened from the top of the dome and into place in the slot. Then he took his wrench and tried to turn the nut on this lug in order to hold the top down tight to prevent leakage. He had been previously told that it was necessary to completely tighten the top to prevent leakage. The nut at first refused to move, and then moved very slightly, as the lug was covered with creosote which had been drying about two weeks. It was very hard. He was using a lot of force and straining himself to turn the nut. He was holding onto the round safety valve on top of the car. After he had made one complete turn, the dried tar or creosote began to "really" pack down. He placed his wrench on the nut again and pulled with all his might. The creosote popped right off. Either the nut gave way or the wrench gave. In any event he lost his balance, his holding grip gave way and the next thing he knew he was lying on the ground.
The plaintiff sustained severe and permanent injuries as a result of the fall. The function and use of his left hip joint are greatly impaired and further changes in the head of the femur are taking place so that further surgery will be required on the left hip. He was a patient in the South Chicago Community Hospital from February 20 to June 7, 1951, and in Mercy Hospital from January 2 to March 22, 1952, and in the Veterans Administration Hospital from June 11, 1952 to January 13, 1953.
Defendant states as its first point for the reversal of the judgment of the court below: "The defendant was not guilty of actionable negligence." As stated, the point raises questions both as to what constitutes actionable negligence in the instant case, and as to whether the plaintiff maintained the burden of proof. The complaint in its first paragraph alleged: ". . . defendant placed a certain tank car on the premises of said Interlake Iron Corporation for loading with creosote." In sub-par. (b) of paragraph 5 of the complaint it is alleged that the defendant had "carelessly and negligently furnished a tank car which was not equipped with railings," etc. Sub-pars. (a) and (b) of paragraph 5 were subsequently stricken from the complaint on motion of the plaintiff. The last portion of sub-par. (c) was likewise stricken, so that the case went to the jury on the following charge of negligence:
"(c) Carelessly and negligently permitted and allowed the fastening devices of said cover on said tank car to become and remain in a defective and unsafe condition and encrusted with material so as to require great and unusual effort and exertion to properly fasten said cover."
The defendant first urges, in consideration of the question that it was not guilty of actionable negligence, that the defendant was under no duty to furnish tank cars to shippers over its line and that it did not "furnish" the tank car on which the plaintiff was injured. There is no doubt that in so far as "furnish" means to own and supply, there is no obligation of a railroad to "furnish" a tank car, and, that the obligation of a carrier to receive and carry by suitable means goods which they assume to transport, does not require the carrier to provide facilities for carrying special types of goods, such as liquids in tank cars. Gustafson v. Michigan Cent. R. Co., 296 Ill. 41, 43; United States v. Pennsylvania R. Co., 242 U.S. 208; Chicago, R.I. & P. Ry. Co. v. Lawton Refining Co., 253 Fed. 705.
From the analysis of the pleadings above made, it would appear that if the plaintiff had ever intended to use the word in his complaint of "furnished" in a technical sense meaning owned and supplied, as a part of the means of transportation, that he had abandoned that intention when he struck, on his own motion, sub-par. (b) of paragraph 5 from the complaint, and instead was relying on his allegation in paragraph 1 that the defendant had placed a certain tank car on the premises of Interlake Iron Corporation for loading with creosote. There is certainly no dispute in the record that the defendant did not own the tank car in question and that it did not supply it, in an ownership sense, to Interlake. It is equally undisputed that the car was owned by the American General Transportation Company; that it was leased by Interlake, and that it was handled by the defendant as a common carrier when it was first delivered to it for the purpose of conveyance to the plant of Interlake and to the loading position within that plant; that it was handled by the defendant as a common carrier at all times it was handled subsequently, including when it was set for loading on the afternoon of February 19th.
Defendant urges that the case of Dominices v. Monongahela Connecting R. Co., 328 Pa. 203, 195 A. 747, is authority for the proposition that because plaintiff is an employee of Interlake, which was the lessee of the tank car in question, defendant cannot be held liable for the condition of the tank car. It is a case where the facts were somewhat similar, in that the railroad was merely a connecting railroad which furnished transportation within the Jones & Laughlin plant. In that case, however, there was only a movement of a car from one part of the Jones & Laughlin plant to another part of that plant. The plaintiff in that case was injured by virtue of a defective cap in the car and the accident occurred in unloading sulphuric acid from the car. In that case a judgment was reversed ...