APPEAL from the Appellate Court for the First District;
heard in that court on appeal from the Superior Court of Cook
County; the Hon. JOHN J. LUPE, Judge, presiding.
MR. JUSTICE SCHAEFER DELIVERED THE OPINION OF THE COURT:
Rehearing denied November 16, 1959.
This is an action to recover damages for personal injuries allegedly caused by the negligence of the defendant railroad in placing for loading at the plant of the plaintiff's employer a defective tank car on which the plaintiff was working when he was injured. The superior court of Cook County entered judgment upon a verdict for the plaintiff and the Appellate Court affirmed. (19 Ill. App.2d 29.) We allowed the defendant's petition for leave to appeal, primarily to re-examine the effect of the Workmen's Compensation Act upon a common-law action for negligence brought by an employee injured in the course of his employment by someone other than his employer.
The plaintiff, Roy D. Rylander, was injured on February 19, 1951, while employed by Interlake Iron Company as a stillman's helper in its Chicago yards. His duties were to mix by-products of tar and to load them through an overhead pipe line into the dome opening of railroad tank cars. The defendant, Chicago Short Line Railway Company, is a common carrier engaged in switching and connecting service in the Chicago area. Its principal function is to move railroad freight and tank cars between industrial sites and the lines of long-haul rail carriers.
Shortly after 11:00 P.M. on February 19, 1951, the plaintiff was injured when he fell from the dome of a tank car into which he had been pouring creosote. The car in question was leased by Interlake from its owner, General American Transportation Company. Two days earlier the defendant had returned it from an interstate journey to the Interlake yard. At the trial the plaintiff, the only occurrence witness, testified that he had put the dome cover in place and was squatting on the outside perimeter of the dome and using a wrench to screw down a nut on a cover bolt that was encrusted with dried creosote when the creosote "popped" off, either the nut or his wrench gave way, and he fell backward to the ground.
The defendant first contends that the plaintiff failed to prove its negligence and his own freedom from contributory negligence. The Appellate Court analyzed the record and found that there was sufficient evidence to sustain the jury's verdict that the defendant was negligent and the plaintiff was not contributorily negligent. We are satisfied that there is competent evidence to support these findings. Ill. Rev. Stat. 1957, chap. 110, par. 92(3)(b).
As a matter of law, however, the defendant argues that its only duty was to return the tank cars to Interlake, and that the burden of inspection and repair thereafter rested on Interlake. Under this view it would be immaterial that the nut and bolt which the plaintiff was trying to fasten had been encrusted with creosote when the car was turned over to Interlake by the defendant, as the evidence indicated. To support this argument the defendant relies upon the interchange rules of the Association of American Railroads to which the defendant, Interlake, and the owner of the tank car were signatories, and upon a regulation of the Interstate Commerce Commission which requires shippers to examine all closures, and the protective covers, of tank cars before they are loaded.
The opinion of the Appellate Court analyzed the precedents which hold that a common carrier has a duty to deliver freight and tank cars that are in reasonably safe condition for the foreseeable uses of the recipient. The authorities need not be re-examined because the principle involved seems fundamental. We think that it applies here even though the defendant did not own the car and Interlake, as its exclusive lessee, could direct whether and when it would be used again. The defendant regularly maintained car inspectors at the Interlake yard who were required to inspect all cars before they were turned over to Interlake. When defects were found by the inspectors they were either repaired by the defendant or the car was sent back to its owner. There is no indication that the car from which the plaintiff fell was ever inspected by the defendant. Interlake did not have car inspectors or repair facilities. From the evidence the jury could find that the defendant negligently failed to make a proper inspection of the car before returning it to Interlake. The possibility that Interlake might also have breached its duty, under a contract or under commission regulations, when it directed that the car be spotted for reloading without inspection, does not absolve the defendant from its obligation to deliver the car in a safe condition. Settle v. Baldwin, 355 Mo. 336, 196 S.W.2d 299; Siegel, Cooper & Co. v. Norton, 209 Ill. 201.
The defendant also contends that the plaintiff's action is barred because his employer or his co-employees were negligent in failing to make an adequate inspection of the car, and that their negligence must be imputed to the plaintiff. At common law the negligence of an employer (Siegel, Cooper & Co. v. Norton, 209 Ill. 201,) or of a fellow employee (Nonn v. Chicago City Railway Co. 232 Ill. 378,) is not imputed to a plaintiff in an action based on the negligence of a third person. But the defendant argues that the common-law rule has been abrogated by the Workmen's Compensation Act, and that our decision in O'Brien v. Rautenbush, 10 Ill.2d 167, so held.
We consider first the provisions of the statute upon which the defendant relies. Section 6 of the Workmen's Compensation Act of 1913 provided:
"No common law or statutory right to recover damages for injury or death sustained by any employee while engaged in the line of his duty as such employee, other than the compensation herein provided, shall be available to any employee who is covered by the provisions of this act, to any one wholly or partially dependent upon him, the legal representatives of his estate, or any one otherwise entitled to recover damages for such injury; * * *." Ill. Rev. Stat. 1949, chap. 48, par. 143.
Section 29 of the 1913 act contained the following provisions when the plaintiff was injured:
"Where an injury or death for which compensation is payable by the employer 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 in some person other than the employer to pay damages, such other person having also elected to be bound by this Act, or being bound thereby under section three (3) of this Act, then the right of the employee or personal representative to recover against such other person shall be transferred to his employer and such employer may bring legal proceedings against such other person to recover the damages sustained, in an amount not exceeding the aggregate amount of compensation payable under this Act, by reason of the injury or death of such employee.
"Where the injury or death for 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 ...