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Goertz v. Chicago And North Western Ry. Co.

OCTOBER 21, 1958.




Appeal from the Circuit Court of Cook county; the Hon. JOHN A. SBARBARO, Judge, presiding. Affirmed upon remittitur to be filed within twenty days. Otherwise, reversed and remanded.


This is a personal injury action. The jury returned a verdict finding defendant guilty and assessed plaintiff's damages at $300,000, and also returned a special finding that plaintiff was in the exercise of due care. Judgment was entered accordingly. Defendant's post-trial motions were denied and defendant appeals.

On April 13, 1954, plaintiff was a passenger on one of defendant's commuter trains from Chicago to Des Plaines, Illinois, a regular stop. The train was travelling over the middle of three tracks which run through Des Plaines in a northwesterly direction. At the Des Plaines station this track is bounded on the south by a concrete platform and on the north by a wooden picket fence. The platform and the three tracks are intersected by a wooden crosswalk near the middle of the station, which is bordered on the east and west by Pearson and Lee Streets respectively. These street crossings are protected by flasher signals and gates.

There were six cars in the train but the forward car was not in use. The conductor and a forward and a rear brakeman were looking out for, and handling, passengers. One of these trainmen was working between the second and third cars from the front, another between the third and fourth cars, and the third at the rear platform of the last car. Plaintiff was riding in the next to the last car. The doors at the car exits, at both ends of each car were open the day of the occurrence, allowing free ingress and egress. The cars were about 80 feet in length and the engine approximately 75 feet long. One standing alongside the train or on the bottom step of a car exit could not see anyone on the bottom step at one of the other exits.

The train entered the station at approximately 2:09 P.M. It stood at the platform for a period of time ranging, according to the evidence, from 25 seconds to a full minute before starting. The gates were down during the time the train was in the station. Mr. Brackus, the rear brakeman, gave the signal to start the train. This was passed to the engineer who set the train in motion. The train travelled approximately 60 feet when several witnesses saw the plaintiff fall under the wheels and called out for it to stop. As the train passed over him, plaintiff was dragged to a point about 13 feet east of the middle crosswalk.

The complaint charges general negligence in the operation, maintenance and control of its train, and specifically alleges that defendant started its train before plaintiff had an opportunity to get off the train safely; that defendant failed to warn plaintiff when the train was about to start; and that defendant failed to keep a proper lookout for plaintiff as he was leaving the train.

Defendant contends that the court should have directed a verdict because plaintiff did not show he was in the exercise of due care and that defendant was not negligent as a matter of law. We see no merit in this contention. Plaintiff's account was the only evidence bearing directly on the events which occurred immediately prior to his stepping to the platform. He testified that when he saw the train entering the station, he made preparations to leave. After several passengers passed his seat, he started to go to the rear of the car to get off. He stated that as he was holding onto a grab iron and stepping to the station platform with his left foot, the train with no warning to him started, causing him to stumble and then fall under the train. The favorable evidence and the legal inferences drawable from it were enough prima facie on the question of due care.

Defendant argues that since the sole duty resting upon a carrier, after conveying its passengers in safe manner to their respective destinations, is to stop the conveyance for a sufficient time to allow them to depart safely, there is no evidence here of its negligence proximately causing plaintiff's injuries. What was a sufficient time to keep the train standing at the platform that day was a question of fact to be determined by the jury in the light of facts and circumstances then existing. The uncontroverted facts are, that defendant's trainmen were unable to see anyone in any of the car exits; that there were no trainmen working within a car's length of the point where plaintiff was attempting to alight; that passengers were allowed free ingress and egress; and that defendant's train was started on a silent signal "highball" without audible warning to plaintiff. Considering the invitation to plaintiff to alight, as gathered from the evidence that the train was standing still with the doors open, and the fact that other passengers had alighted before him, we cannot rule that as a matter of law defendant's sole duty was to stop the train for a period of 25 seconds.

Defendant's argument does not persuade us that where the train has remained standing a reasonable time, it may again be set in motion, with no obligation to ascertain whether everyone has departed who intended to do so and no responsibility to examine each car platform to discover whether someone might be in the act of alighting. It cites Lake Erie & W.R. Co. v. Beals, 50 Ind. App. 450. That case is not in accord with decisions of this court. In Jurkiewicz v. Ill. Cent. R. Co., 145 Ill. App. 44, the court with respect to that argument pointed out at page 50, that:

"It leaves out of consideration the important element that appellant owed to appellee the utmost or highest degree of care, skill and diligence for her safety consistent with the mode of conveyance employed; and the appellant's servants in charge of the train were required to know, if by the exercise of due care, caution and diligence they could know, that appellee was attempting to alight from the train, before they started it."

Defendant's contention that the verdict is against the manifest weight of the evidence is without merit. Its argument that the physical facts contradict plaintiff's story is made in reference to a plat of the station and approximate position of the train that day as taken from the testimony of the witnesses. But we are not convinced that the record conclusively indicates that this was the exact position of the train, as defendant contends. The testimony of forward brakeman Bolin was that the engine stopped just about clear of the Lee Street (west) crossing. Furthermore, in view of the fact that the first car behind the engine was not in use, it was unnecessary to stop the engine and forward car in a position opposite the platform. Instead, it would seem reasonable that the train may have pulled up farther in order to allow the passengers to alight nearer the crosswalk, which they all had to use to get to the north or south platforms. Defendant's graphic description of the distances covered by other passengers who had alighted, and its argument that this conclusively showed plaintiff had sufficient time to alight is not convincing on this question of law. Should the jury have decided that the train didn't stop where defendant indicates that it did, plaintiff would have been in a position 75 feet, the length of the engine, closer to the crosswalk. This would also tend to corroborate plaintiff's statement that he got off at a point near the croswalk. The rear brakeman, on cross examination, became confused as to when and where he first saw plaintiff; the testimony of witness Harris contained improbabilities; and witness Raven said he could not tell whether the man he saw get up after the train had started was the man who was hurt.

Defendant's argument that since plaintiff was coming from the center of the car, the forward motion of the train would throw him clear, rather than cause him to fall under the train is equally without merit. No witness denied plaintiff's testimony that he had a firm grip on a grab iron, and continued to hold on until he was forced to lose his grip at which time he fell under the train. The testimony that he ran alongside the train trying to gain his balance before he fell coincides with this account. That plaintiff could not clearly describe just how he fell and where is not unusual in view of the severity of his injuries and the shock he must have suffered when the train ran over him and dragged his body 13 feet.

Upon a review of the evidence we cannot say that the finding of defendant's negligence is against the manifest weight of the evidence. "Manifest means clearly evident, clear, plain, indisputable." Schneiderman v. Interstate Transit Lines, Inc., 331 Ill. App. 143. It ". . . requires that an opposite conclusion be clearly evident." Arboit v. Gateway Transportation Co., 15 ...

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