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Hildebrand v. Baltimore & O.r. Co.

MAY 10, 1963.

LEE HILDEBRAND, PLAINTIFF-APPELLEE,

v.

THE BALTIMORE AND OHIO RAILROAD COMPANY, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of St. Clair County; the Hon. HAROLD O. FARMER, Judge, presiding. The judgment is affirmed.

HOFFMAN, JUSTICE.

This is a suit under the Federal Employers' Liability Act, 45 USCA, Sec 51, et seq. The defendant railroad appeals from a judgment on a verdict for $30,000 awarded to the plaintiff for injuries suffered by him in a switching movement in the defendant's yards at Decatur, Illinois.

The accident happened on July 21, 1958. At the time, plaintiff was a job foreman in charge of the car inspectors and car repairmen. He was a supervisory employee and, as one of his duties, instructed men in safety rules.

There were six live tracks in the yard, running easterly and westerly. The tracks were numbered from the main track to the south. The accident happened on track No. 3. Track No. 3 descends from the west to the east, approximately 6 inches in a distance of 800 feet and has a capacity of 39 cars. When cars are kicked into track No. 3 from the west, they pass over a lead track which also supplies tracks No. 1 and No. 2.

Between 11:30 a.m. and 12:00 noon on July 21, 1958, plaintiff was in the yard inspecting an incoming train on track No. 2. As he was proceedings between tracks No. 2 and No. 3, checking cars on track No. 2, his attention was called to a hammering noise that came from the inside of a tank car located on track No. 3 to his right. He decided to investigate to determine the source of the noise. He climbed the east sill step and walked along the running board to the dome ladder near the center of the car and then proceeded up to the dome platform. The dome was open, and he looked in. Inside was an employee of American Tank Car Company repairing a valve. This employee came up out of the car and straddled the tank dome. Plaintiff remained on top of the tank car four or five minutes giving little, if any, attention to activity to the west. At the time, on track No. 3, there were approximately 25 to 30 cars east of the one on which plaintiff was standing and 3 or 4 cars to the west.

There was a switching movement in progress in the yards. The yardmaster gave the crew orders to kick four tank cars from the main track into track No. 3. The locomotive, facing east, coupled onto the tank cars and pulled them approximately 600 feet to the west until they reached a point where they could be lined up for movement in order to kick the four tank cars into track No. 3. The field man gave the signal to proceed, and the cars were shoved to the east. When the cars reached a speed of from six to eight miles an hour, the brakes were applied on the engine and the pin was pulled letting the tank cars roll free. The cars were cut loose when they were approximately 800 feet westerly of the first car on track No. 3. The four loose cars proceeded over frogs and switches toward track No. 3. There was no rider on the lead cut of cars being kicked.

Plaintiff testified that while he was on the tank car talking to the repairman, he heard a violent crash and glanced over his shoulder and saw a cloud of smoke. He stated there was a "terrific crash" and the next thing he knew he was thrown violently in the air off the tank car. He landed on his hips, elbows and hands almost against the rail on track No. 2. Plaintiff further testified that it was the custom of the defendant railroad to have a rider on the lead car in all kick movements. This statement of custom was denied by other employees of the defendant railroad.

There was in force a blue-flag regulation which provided, in substance, that before performing any work under or between equipment, the workmen must place a metal blue flag by day and a blue light by night at each end of the track. This was not done at the time plaintiff was injured. Plaintiff testified, too, that where hand switches are used, the workmen making repairs not only place blue signals but also lock the switches to divert the traffic from the track on which the repair work was to be performed.

In his complaint, the plaintiff charged that the defendant was negligent in the operation and control of the cut of cars; that it moved cars into the train on which plaintiff was standing without warning; that it moved a train of cars without ascertaining whether it was safe to permit the same to move free and unattached; that it failed to provide plaintiff with a reasonably safe place to work; that it adopted an unsafe method of performing its work.

On appeal, defendant claims that the court should have directed a judgment for it notwithstanding the verdict, on the ground that the plaintiff was injured solely as a result of his own conduct and that the defendant was not guilty of any negligence whatsoever. It further contends that the giving of certain instructions was erroneous and that the trial court should have granted it a new trial because the verdict was excessive.

The argument of the defendant against liability centers on the conduct of the plaintiff. The defendant points out that plaintiff was acquainted with the safety rules; that he was the one who instructed others not to go on top of a car without putting up a blue flag and locking the track, and that in doing so, he had violated his own instructions and knowingly had placed himself in a position of danger without using any caution. Defendant refers to the number of railroad employees who testified that the method of making the switch was the usual and customary one for more than twenty years. In addition, defendant calls attention to the fact that no evidence was introduced to show that other railroads had adopted other methods or that the method used by the defendant was not the one customarily used in the railroading industry.

The plaintiff answers by stating that the initial inquiry should be directed to the defendant's negligence, if any, which "played a part" in plaintiff's injuries and refers to the case of Glime v. New York Cent. R. Co., 5 Ill. App.2d 509 at page 517, 126 N.E.2d 385 at page 388.

Plaintiff insists that a review of an F.E.L.A. case is limited to whether the proofs justify with reason the conclusion that the employer's negligence played any part, even the slightest, in producing the injuries; and, that it is of no consequence that the employee's own negligence contributed to the result. Plaintiff cites for this, the case of Rogers v. Missouri Pac. R. Co., 352 U.S. 500, 1 L Ed 493, where the court concluded that the inquiry in F.E.L.A. cases presents the single ...


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