Appeal from the Superior Court of Cook County; the Hon. ELMER
N. HOLMGREN, Judge, presiding. Judgments reversed and cause
remanded with directions.
MR. JUSTICE FRIEND DELIVERED THE OPINION OF THE COURT.
Plaintiff brought suit for damages resulting from the derailment of its passenger train No. 6, alleged to have occurred when it ran over railroad scrap which had fallen from the earlier Indiana Harbor Belt train No. 9004. Defendant Chicago and North Western Railroad (North Western) is charged with having furnished gondolas for train No. 9004 which had large holes in their bottoms. M.S. Kaplan Company (Kaplan), a scrap dealer and dismantler of railroad equipment, is charged with negligence in loading these gondolas with their cargo of railroad scrap. The Indiana Harbor Belt Railroad (I.H.B.) is charged with negligence in permitting scrap to fall from its train onto plaintiff's tracks, and with failure to remove it. All defendants are charged with negligence in failing to make proper inspections of the gondolas. Plaintiff appeals from judgments entered upon directed verdicts for each of the defendants at the close of plaintiff's case.
The derailment occurred at 11:32 p.m. on December 22, 1954 as plaintiff's train crossed the B. & O. diamond near Blue Island, Illinois. This diamond, as it is called, consists (in approximate compass direction) of plaintiff's parallel northbound and southbound lines, intersected by the eastbound and westbound lines of the Baltimore and Ohio Railroad.
Approaching the diamond in a southerly direction at approximately fifty miles per hour on the night in question, plaintiff's fireman saw, dimly, about a hundred feet ahead on the tracks and a few feet south of the diamond, what looked like a wooden two-by-four. As the train crossed the diamond a second later, a shower of sparks went up, and the fireman called for an emergency stop. The derailed train, still partially on the tracks, jolted to a stop about 2000 feet south of the diamond. There were no bodily injuries, and a search was begun for the cause of the derailment. Four large pieces of railroad scrap, consisting of cut up railroad wheels, were found, strewn south of the diamond near the path of the derailed train. These pieces bore the marks of a dismantler's torch and ranged in weight from forty-seven pounds to over one hundred pounds. They could be fitted together to form two larger pieces. The piece found "just south" of the diamond fitted together with the piece found four or five hundred feet south of the diamond. The piece found twenty feet south of the diamond fitted together with the piece found forty feet south of the diamond, apparently between the rails used by the derailed train. A few timbers were also found in the area, along with some smaller pieces of debris, but the shower of sparks which went up when plaintiff's engineer passed through the diamond convinced him that he had struck metal, not wood. While searching for the cause of the derailment, one of plaintiff's witnesses noticed that a fresh break appeared on one of the pieces of railroad wheel found in the area.
Plaintiff argues forcefully that the derailing material must have come onto the southbound tracks after 8:52 p.m., at which time one of its trains used the southbound tracks over the diamond without incident. Plaintiff's evidence indicates that, from 8:52 p.m. until the derailment, twenty trains crossed the diamond. None, however, used the southbound tracks. After No. 9004 crossed the diamond at 9:37 p.m. on the eastbound B. & O. tracks, the next train to use the southbound tracks was plaintiff's train No. 6, derailed at 11:32 p.m. At this time plaintiff's employees began the search which led to the discovery of the above described pieces of railroad scrap.
Plaintiff asserts that the scrap weight reports for train No. 9004 show a cargo loss in transit, and that this is a further circumstance indicating that the scrap found near the diamond came from defendants' train. Weight reports were individually prepared for each gondola. We have summarized these figures for the entire load of scrap, for the sake of convenience and because the parties base this portion of their argument on the total figures.
After being loaded by the locomotive dismantler Kaplan, the gondolas were weighed by North Western at its Proviso Yard. From the total gross weight (1,539,800 pounds) the empty weight of the gondolas (546,700 pounds) was subtracted to determine the net weight of the scrap (993,100 pounds) as loaded by Kaplan. This poundage was used by Kaplan as a basis for billing the consignee, Inland Steel Company (Inland).
Upon arrival at Inland, the loaded gondolas were first weighed, then emptied, and again weighed when empty. The scrap weight received at Inland was determined by subtracting the empty weights of the gondolas (557,860 pounds) from their gross weights (1,537,920 pounds) before unloading. As shown by relevant documents, the scrap weight received by Inland (980,060 pounds) was 13,040 pounds less than the scrap weight at Proviso, which plaintiff says shows a scrap loss in transit of this amount.
Defendants argue that most of this 13,040-pound scrap loss is illusory. They point out that the total empty weight of the gondolas was 11,160 pounds greater at Inland than at Proviso, and assert that this increased empty weight is responsible for most of the decrease in scrap weight between Proviso and Inland, since the result of subtracting a larger empty gondola weight from the gross weight of the gondola will be a decrease in the computed weight of scrap delivered which is not due to an actual loss of scrap. Accordingly, defendants would adjust, i.e., reduce plaintiff's 13,040-pound scrap loss by the amount of the increase in the weight of the empty gondolas between Proviso and Inland. This 11,160-pound adjustment would produce an adjusted scrap loss of 1880 pounds. The summarized computations of the parties are shown below:
WEIGHTS SHOWN BY RELEVANT DOCUMENTS:
Gross weights (gondolas filled) 1,539,800 1,537,920 (less) Empty weights (546,700) (557,860) Scrap weight, each location ___________ __________ 993,100 980,060
Scrap weight at Proviso 993,100 (less) Scrap weight at Inland (980,060) Scrap loss computed by ___________ ...