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Campbell v. Chesapeake & O. Ry. Co.

JUNE 25, 1962.

JOHN S. CAMPBELL, PLAINTIFF-APPELLEE,

v.

THE CHESAPEAKE AND OHIO RAILWAY COMPANY, A CORPORATION, DEFENDANT-APPELLANT.



Appeal from the Superior Court of Cook County; the Hon. SAMUEL B. EPSTEIN, Judge, presiding. Affirmed.

MR. PRESIDING JUSTICE BURMAN DELIVERED THE OPINION OF THE COURT.

Rehearing denied July 30, 1962.

In an action under the Federal Employers' Liability Act plaintiff recovered $60,000 for the loss of his right eye. Defendant railway has appealed upon the grounds that the trial court erred in denying defendant's motions for a directed verdict, for a judgment notwithstanding the verdict, and for a new trial premised on the manifest weight of the evidence. Defendant cites additional errors in the admission and rejection of evidence, the rulings on motions, the giving of certain instructions and the remarks of plaintiff's counsel.

The evidence reveals that on March 29, 1951, plaintiff, John S. Campbell, employed as a machinist in defendant's wheel shop in Stevens, Kentucky, was operating a "wheel lathe" in a process of resurfacing railroad car wheels. The lathe was specially equipped with two separate turrets or tool heads, spaced apart the width of a railroad car axle so that a pair of railroad wheels joined by an axle could be rolled on a spur track directly into place in the lathe, and both wheels could be turned and machined simultaneously. Each turret contained four tool holders, each designed to hold a different cutting tool. The hardened steel tools were used in progressive steps in the rounding, truing and refinishing of the railroad wheels. Involved in the case at bar is the "roughing tool" in the left turret of the lathe. This tool was used in the initial step of the operation and accomplished the bulk of the cutting.

On the evening in question plaintiff, who had been wearing the safety goggles provided by his employer, finished the machining of a set of wheels, turned off the machine, and, as was his custom when the lathe was not in operation, removed his goggles. Upon the completion of each set of wheels it was necessary for plaintiff to check the condition of the cutting tools, which occasionally needed replacing or turning to a fresh cutting surface. As the wheels were being removed from the lathe by plaintiff's helpers, Denver Patterson and Charles M. Roth, plaintiff started to remove the tools from the holder.

Plaintiff testified that as he lifted the "roughing tool" out of the holder on the left side some foreign object came with it, striking him in the eye and causing a sharp pain. He dropped the tool and cried out. Roth said he heard plaintiff yell and saw him directly behind the lathe holding his eye. Patterson said that he heard plaintiff exclaim that something hit him in the eye, and saw plaintiff straightening up from the tool head on his left. Plaintiff then went to the washroom to examine his eye. Both Patterson and Roth examined the eye but could not find anything. Roth stated that before quitting time he noticed that the eye was turning red. The next day plaintiff saw the company doctor who examined and treated the eye on that and several subsequent occasions. The treatments did not help so plaintiff visited another doctor who removed a sliver of steel from his eye. The eye did not heal, however, and after an unsuccessful corneal transplant, had to be removed. Plaintiff now uses an artificial eye.

The complaint charged that defendant carelessly and negligently (a) failed to provide plaintiff with a reasonably safe place to work; (b) failed to provide plaintiff with proper tools and equipment which were necessary for the safe performance of his work; (c) maintained certain equipment, with which plaintiff was required to work, in a defective and dangerous condition; (d) allowed its tool holder to remain in a defective and unsafe condition for an unreasonable length of time; and (e) controlled and maintained its equipment so that as a proximate result thereof plaintiff sustained injuries.

[1-4] Defendant insists that there was no evidence of negligence sufficient to justify a jury verdict for plaintiff; hence, it was error for the trial court to deny defendant's motions for a directed verdict and for judgment notwithstanding the verdict. We must consider this contention within the framework of clear and established rules. The Federal Employers' Liability Act compels a carrier to respond in damages for any injury to one of its employees resulting in whole or in part from the negligence of any of its officers, agents, or employees. Neither assumption of risk nor contributory negligence can bar a recovery. (Finley v. New York Cent. R. Co., 19 Ill.2d 428, 433, 167 N.E.2d 212.) Of such actions the United States Supreme Court has pronounced that the test of a jury case is "simply whether the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought." (Rogers v. Missouri Pac. R. Co., 352 U.S. 500, 506.) While the jury determination must be supported by something more than mere speculation (Moore v. Chesapeake & O. Ry. Co., 340 U.S. 573), it is not within our province to weigh the probabilities between conflicting inferences for which there is an evidentiary basis. (Hack v. New York, C. & St. L.R. Co., 27 Ill. App.2d 206, 216, 169 N.E.2d 372; Rogers v. Missouri Pac. R. Co., 352 U.S. 500, 506, 507.) As defendant sought to remove the case from the jury the question of law here presented is whether, upon a consideration of all the evidence together with all reasonable inferences that can be drawn therefrom and viewed in its light most favorable to plaintiff, there is a total failure or lack of evidence to prove that the defendant was guilty of negligence which contributed in whole or in part to the injury. (Bonnier v. Chicago, B. & Q.R. Co., 2 Ill.2d 606, 119 N.E.2d 254; Hall v. Chicago & N.W. Ry. Co., 5 Ill.2d 135, 125 N.E.2d 77.)

The evidence discloses that the cutting tool which plaintiff was removing at the time of his injury was being held in a worn or sprung tool holder. This condition of the holder permitted a gap of about one eighth of an inch to exist between the tool and the holder, in which dirt, rust, grease, and fine shavings of metal accumulated causing the tool to become wedged and difficult to remove. Plaintiff testified that on this particular night he had to work the tool about thirty seconds before starting to lift it out. He demonstrated how he would have to stand, straddling part of the machine, when removing a tool. In that position his eye was about eighteen inches to two feet from the tool holder. Plaintiff said, "as I pulled, something hit me, and I dropped the tool right away."

Plaintiff explained that, when placed in the sprung holder, the rough cutting tool would not fit snugly as it should. This condition had existed for approximately a year, and plaintiff stated that when he had complained about it to the foreman he was simply given a new set of tools which didn't alter the condition of the holder or rectify the problem. He explained that when the tool fit properly particles would not be able to collect down around it and the tool would slide out easily. Because of the accumulation in the defective holder, however, it was necessary "to shake it back and forth, and twist it a bit to free it."

Denver Patterson corroborated plaintiff's testimony to the effect that the holder in question was sprung causing a gap in which dirt and shavings would accumulate. He said the result was that the tool would become wedged and difficult to remove. Patterson also indicated that a tool would fit snugly in a holder in proper condition, and that nothing could accumulate around the tool and it could be removed easily. He said he was present on three or four occasions when plaintiff reported the defective condition to their foreman.

Under the Federal Employers' Liability Act the employer must use reasonable care to provide tools and equipment which are safe and suitable for the work to be done. (Finley v. New York Cent. R. Co., 19 Ill.2d 428, 435, 167 N.E.2d 212.) We think the evidence was quite sufficient to support a jury determination that defendant was negligent in permitting the defective condition of the holder to exist and remain after numerous complaints. Further, we consider it a reasonable jury inference that defendant's negligence, which allowed the dirt and shavings to accumulate, bore a causal relationship to plaintiff's injury. The trial court, therefore, ruled properly on defendant's motions for a directed verdict and for judgment notwithstanding the verdict.

Defendant presents the related contention that the verdict was against the manifest weight of the evidence. This proposition was given full consideration in Hack v. New York, Chicago & St. Louis R. Co., 27 Ill. App.2d 206, 215, 216, 169 N.E.2d 372, where it was held that under the Federal Employers' Liability Act "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." (See also, Bowman v. Illinois Cent. R. Co., 11 Ill.2d 186, 142 N.E.2d 104; Harsh ...


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