Appeal from the Circuit Court of Cook county; the Hon. JOHN J.
GUTKNECHT, Judge, presiding. Affirmed.
MR. JUSTICE MCCORMICK DELIVERED THE OPINION OF THE COURT.
The New York, Chicago and St. Louis Railroad Company, hereafter referred to as the defendant, has taken this appeal from a judgment in the amount of $40,000 entered on the verdict of a jury in favor of Frank Hack, hereafter referred to as the plaintiff, in a personal injury action brought under the Federal Employers' Liability Act (45 U.S.C.A., secs. 51-60).
On the date of the accident, August 9, 1956, a Pullman Standard Company truck, driven by an employee of the Pullman Standard Company, delivered at the freight house of the defendant in Michigan City, Indiana, a steel box which weighed between 800 and 1,000 pounds, and which contained 100 70-pound steel blocks (7,000 pounds). There is conflicting evidence in the record with reference to the size of the box. It was said to be 40 inches high, 4 feet wide and 5 feet long, or 32 inches high, 42 inches wide, and 60 inches long. The bottom was about 6 inches from the floor, and on the bottom, running the width of the box, were ducts into which the prongs of a fork truck lift would fit. The box did not rest on skids or legs.
The 100 steel blocks which the box contained were destined for Pine Bluff, Arkansas. Each of the blocks was 9 inches wide, 12 inches long, and 2 1/2 inches thick and weighed 70 pounds. At the Pullman Standard Company these blocks had been cut off of a bar by an acetylene torch, and as the blocks were cut they fell into the box. They lay in the box as they had fallen, some flat, some jagged, some standing on end, and some standing at a point jammed in with others. There is testimony in the record that there was an oil film or something on the blocks.
When freight was brought to the freight house the freight agent, Beecher, had the authority to make the decisions with reference to its reception, and if merchandise was brought to the railroad packaged in a way in which the railroad did not want to accept and handle it, Beecher would inform the shipper as to what method should be used in packaging to make it acceptable. Beecher could either order the goods to be unloaded at the ramp at the freight house where the goods would be moved across the freight house to the boxcars, or unloaded at the north loading zone directly into the boxcars. Once freight had been accepted, then the method of unloading was determined by one Kuchik, who was in actual charge of the freight house. Beecher was in charge of the entire freight operation.
Both Beecher and Kuchik testified that a container such as the one described, filled with steel blocks each weighing 70 pounds, was unusual, and Kuchik during the term of his employment by the railroad from 1938 had never seen a shipment of that kind before, nor had the plaintiff Hack. At the time when the Pullman Standard Company truck arrived Beecher was out of the office, and consequently no decision was made by him as to whether the freight should be accepted in that condition or whether it should be unloaded at the freight house or directly into a boxcar. Beecher had not delegated the authority to make those decisions to Kuchik, nor was there any direction to delay proceedings during the absence of Beecher. There is evidence in the record that Kuchik, in response to the question of the plaintiff, told him to unload them and put them on 4-wheeled hand trucks. Kuchik and the plaintiff were the only men who handled freight. Kuchik went to the freight office with the driver of the truck, and Hack proceeded to unload the truck. The plaintiff placed one of the 4-wheeled hand trucks a short distance from the box and started unloading. In unloading the plaintiff had to reach into the box, pick up one of the steel blocks, straighten up, walk to the hand truck and put the block thereon. After 30 blocks had been put on the 4-wheeled truck, it was then moved into the boxcar to be unloaded. Kuchik took over the unloading of the hand truck. Hullinger, the driver, was assisting the plaintiff in loading the other hand truck. The plaintiff testified that after lifting 8 or 10 more blocks "something snapped in my back"; that he took the block over to the hand truck and dropped it, and told Hullinger that he had hurt his back. Hullinger then suggested that he, Hullinger, get into the box and lay the blocks on the corner so that plaintiff would not have to bend over, and that plaintiff could then carry them to the hand truck. In this manner the balance of approximately 60 blocks was unloaded from the truck and eventually loaded into the boxcar. At the time when the unloading commenced the blocks were approximately 14 inches from the top of the box, and as the unloading proceeded the position of the blocks became lower.
At the time of the occurrence the plaintiff was 27 years of age, was 5 feet 9 1/2 inches tall and weighed 162 pounds. Plaintiff had engaged in hard physical labor all his working life. He worked as a railroad section hand putting in and taking out ties and rails. He served two years in the army without any physical disability. He had worked for the defendant for some four years as a freight handler, and in the course of his duties he had to lift or handle heavy and bulky objects, some weighing as much as several tons. He was active in sports that involved jumping, leaping and running, and in all his physical activities he had never had any trouble with his back. At the time of the accident the plaintiff had certain congenital defects of the spine which predisposed it to injury.
The plaintiff contends that the defendant was negligent since it required the plaintiff to manually unload the 70-pound steel blocks from the box in which they were packed, that the method adopted by the employer was unsafe and hazardous, and that the defendant either should have had available mechanical devices or else should have refused the freight packed as it was.
The defendants moved for a directed verdict at the close of all the evidence, and in its post-trial motion asked for a judgment for the defendant notwithstanding the verdict on the ground that there was no evidence in the record tending to prove that the defendant was guilty of any negligence that was the proximate cause in whole or in part of plaintiff's injuries. In the same motion the defendant moved for a new trial, relying upon alleged errors committed by the court in giving and refusing instructions. The post-trial motion was denied by the court, and the defendant thereupon took this appeal from the judgment which the court entered on the verdict of the jury for the plaintiff.
In this court the defendant makes no complaint with reference to the amount of the judgment, and the only contentions here urged are (1) that the plaintiff failed to prove any negligence on the part of the defendant, and (2) that the giving and refusing of certain instructions by the court constituted reversible error.
[1-4] This is a suit brought under the Federal Employers' Liability Act, and the rules governing the procedure in the state courts in this type of case are held to be governed by the decisions of the federal courts in order that the Act may be given uniform application. It has repeatedly been held that a reviewing court in such cases cannot reweigh the evidence. Probably a better statement of that rule would be to say that a reviewing court has no right to consider the evidence and from that consideration determine as to whether or not the verdict of the jury was against the manifest weight of the evidence. The only question presented to a reviewing court for determination in these cases is as to whether or not there is an evidentiary basis for the jury's verdict, and when such evidentiary basis becomes apparent the appellate court's function is exhausted. The jury is free to discard or disbelieve whatever facts are inconsistent with its conclusion. Only when there is a complete absence of probative facts to support the conclusion reached does a reversible error appear. Bowman v. Illinois Cent. R. Co., 11 Ill.2d 186, 142 N.E.2d 104, citing with approval Lavender v. Kurn, 327 U.S. 645; Hall v. Chicago & N.W. Ry. Co., 5 Ill.2d 135, 125 N.E.2d 77; Bonnier v. Chicago, B. & Q.R. Co., 2 Ill.2d 606, 119 N.E.2d 254.
The defendant in its brief discusses at considerable length the inferences which the jury should have drawn from the evidence. That question is not before us. The only question that we can consider is whether the inferences drawn by the jury have an evidentiary basis.
[5-9] The plaintiff must prove that the defendant was negligent in some degree, that is, that the accident resulted from a breach of a duty which the defendant owed to the plaintiff, and that the negligence of the defendant had a causal relation with the plaintiff's injury. Harper and James, The Law of Torts, vol. 2, sec. 20.5; Wawryszyn v. Illinois Cent. R. Co., 10 Ill. App.2d 394, 135 N.E.2d 154. Negligence is the omission to do something which a reasonable man guided by those ordinary considerations which ordinarily regulate human affairs would do, or the doing of something which a prudent and reasonable man would not do. L. Wolff Mfg. Co. v. Wilson, 152 Ill. 9, 38 N.E. 694. Primarily, before negligence can be imputed to a defendant by a plaintiff there must have been a duty owed by the defendant to the plaintiff. The employer owes a duty to the employees to see that the employee works under safe conditions. In case the employer violates that duty and an injury results to the employee caused by that neglect, then the employer is legally liable. It has been said: "Every person is negligent when, without intending to do any wrong, he does such an act or omits to take such a precaution that under the circumstances present he, as an ordinarily prudent person, ought reasonably to foresee that he will thereby expose the interests of another to an unreasonable risk of harm." Osborne v. Montgomery, 203 Wis. 223, 234 N.W. 372. The test is what a reasonably prudent person would foresee and would do in the light of this foresight under the circumstances, and this test is properly applied to determine whether the defendant was or was not negligent. This concept has been applied by many courts to causation, though this view has been criticized by Green in his Rationale of Proximate Cause. Also see Harper and James, The Law of Torts, vol. 2, secs. 20.4, 20.5. In Ney v. Yellow Cab Co., 2 Ill.2d 74, 117 N.E.2d 74, the court says: "The law of probable cause holds that an injury which is the natural and probable consequence of an act of negligence is actionable and such an act is the proximate cause of the injury. The injury which could not have been foreseen or reasonably anticipated as the probable result of an act of negligence is not actionable, and such an act is either a remote cause, or no cause whatever of the injury." See Seith v. Commonwealth Elec. Co., 241 Ill. 252, 98 N.E. 425.
In the instant case the alleged negligence of the defendant is its failure to carry out its duty to provide the plaintiff with safe conditions and equipment under and with which he might work. In the instant case the agent of the defendant ordered the plaintiff to manually unload the 70-pound metal blocks, which had something like an oil film covering them and which were piled higgledy-piggledy in a steel box which, as the jury could have believed, was 40 inches high. The question of whether or not such conduct on the part of the defendant was negligence depends on two elements: first, as to whether the removal of some 70 of those blocks under those circumstances by a man in a reasonably normal ...