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Mcnealy v. Illinois Cent. R. Co.

SEPTEMBER 18, 1963.

TEAMIE MCNEALY, APPELLEE,

v.

ILLINOIS CENTRAL RAILROAD COMPANY, A CORPORATION, APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. FRED G. SLATER, Judge, presiding. Affirmed. MR. JUSTICE MCCORMICK DELIVERED THE OPINION OF THE COURT.

An action was brought by Teamie McNealy against the Illinois Central Railroad Company to recover damages for personal injuries sustained by the plaintiff while a passenger aboard the defendant's passenger train. The plaintiff alleges that the injuries resulted from the alleged negligence of the defendant in making an emergency stop and because of the improper construction of the chairs in the ladies' powder room. There is no dispute that the plaintiff was a passenger aboard defendant's train and that an emergency stop was made. Nor is there any dispute that the plaintiff was injured, though the defendant denies that she was injured to the extent which she alleges. The case was tried by a court and jury. The jury found in favor of the plaintiff and against the defendant, and assessed the plaintiff's damages in the sum of $10,000. Judgment was entered upon the verdict. At the close of all the evidence the plaintiff had moved for a directed verdict, which motion was denied by the trial court. The trial court overruled the defendant's post-trial motion for judgment notwithstanding the verdict or in the alternative for a new trial, and also overruled defendant's motion for a remittitur as a condition for the denial of a new trial.

The defendant here contends that the trial court should have entered judgment notwithstanding the verdict because there was no evidence showing negligence on the part of the defendant, or, in the alternative, granted a new trial on the grounds that the verdict is against the manifest weight of the evidence, and that the trial court was in error in its rulings on evidence and instructions during the trial. The defendant also contends that the verdict is excessive.

On September 13, 1954 plaintiff was a passenger aboard the twelfth coach of defendant's southbound train No. 3, "The Louisiane." The train consisted of two diesel locomotives and sixteen cars, en route from Chicago to New Orleans, plaintiff's destination. The train was behind schedule because of an inoperative engine in one of the locomotives and could not make up time. Immediately prior to the accident the train was proceeding slightly uphill at a speed of forty miles per hour. As the train approached Gallman, Mississippi, which was not a scheduled stop, an emergency stop was made to avoid striking an automobile which came upon the track and stopped in front of the train. At the time the plaintiff was in the defendant's powder room sitting on a stool fixing her hair before a mirror. The stool, or chair, on which the plaintiff was sitting at the time of the accident had no sides. The plaintiff testified that when the train came to a sudden stop she tried to catch the sides but that she had nothing to hold on to and was twisted and thrown against the floor of the powder room on her back and left leg.

A witness, Alida Fontana, testified on behalf of the plaintiff that at the time she was also in the powder room sitting in a big chair with arms, and that when the train jerked unexpectedly she held on to the sides and did not fall. Mrs. Fontana testified that there was but one jerk and there was no warning of any stop.

The law governing the duty of a railroad company to its passengers requires no citation of authority. It owes to the passenger the highest degree of care consistent with the practical operation of the railroad and the mode of conveyance adopted. The defendant argues strenuously that there was no negligence in the conduct of the engineer at the time when he made the emergency stop. In 10 Am Jur Carriers, § 1344, it is said:

"The decisions are in accord upon the proposition that a carrier is not liable for injuries to a passenger resulting from the application of the emergency brakes in order to avoid or prevent an imminent danger not otherwise avoidable, and reasonably believed to be attended with more serious consequences than the sudden application of the brakes. Where, however, the danger sought to be avoided by the sudden application of the brakes is due to the carrier's negligence, the carrier will not be excused from liability for injury to a passenger occasioned by the sudden stopping of the train. Thus, a railroad company will be liable for injury to a passenger caused by the sudden application of the emergency brake to avoid striking a traveler at a crossing, if the carrier is negligent in failing to give the traveler timely warning or to observe his danger in time to stop without resort to the emergency brake. The question whether such an emergency exists as will excuse the carrier from liability for injury to a passenger caused by the sudden checking or stopping of a train or car is obviously dependant upon the circumstances surrounding each case."

"The degree of care required of a common carrier is not capable of a precise formulation, applicable to all situations that may arise. In general, however, carriers of passengers are required to exercise the highest degree of care, vigilance, and precaution for the safety of those it undertakes to transport. . . . It is clear that the rule does not require such a degree of vigilance as will be wholly inconsistent with the carrier's methods of transportation, or impracticable to such an extent as to interfere with its regular business. . . . The application of this rule obviously will depend upon the factual situation in each case." 10 Am Jur Carriers, sec 1245. It has been said that the obligation of a common carrier is to do all that human care, vigilance and foresight could reasonably do, consistent with the mode of conveyance and the practical operation of the road, to convey its passengers in safety to their destination. Alton Light and Traction Co. v. Oller, 217 Ill. 15, 75 N.E. 419. The negligence of the carrier must have been the proximate cause of the accident. In Neering v. Illinois Cent. R. Co., 383 Ill. 366, 50 N.E.2d 497, the Supreme Court said:

"The injury must be the natural and probable result of the negligent act or omission and be of such a character as an ordinarily prudent person ought to have foreseen as likely to occur as a result of the negligence, although it is not essential that the person charged with negligence should have foreseen the precise injury which resulted from his act."

Questions as to negligence, due care, and proximate cause are ordinarily questions of fact for a jury to decide. Ney v. Yellow Cab Co., 2 Ill.2d 74, 84, 117 N.E.2d 74, 80. It is the rule that where a judgment notwithstanding the verdict is sought by the defendant the question presented is whether there is any evidence which, taken with the intendments most favorable to the plaintiff, tends to prove the charge of the complaint. A reviewing court in considering a motion to set aside a verdict of the jury because it is against the manifest weight of the evidence has no right to substitute its judgment for the verdict of the jury and judgment of the trial court unless the opposite result is clearly apparent and evident.

In the instant case on this particular element in the case the trial court properly refused to direct a verdict in favor of the defendant or to enter a judgment notwithstanding the verdict. An examination of the evidence would indicate that the jury could properly draw an inference therefrom that the engineer at the time and place in question was not in the exercise of the standard of care which the law imposes upon him. The testimony of the engineer and the fireman is in conflict, both as to the time when the engineer first applied the brakes and as to the type of application which he then made. *fn1 The fireman testified that the engineer made a "heavy service" application of the brakes. The engineer testified that he made a medium application. The witness Fontana testified that there was but one jerk of the train, which occurred at the time when the train stopped. There is further testimony in the record that ordinarily the fireman sat in the front of the lead engine on the opposite side of the seat occupied by the engineer. The fireman testified that at the time of the occurrence he was standing back of the engineer. The engineer testified that the fireman had been in the second locomotive trying to do something to the defective diesel engine. He then testified that the fireman came out of the engine room and was standing two or three feet from where the engineer was, and that they looked at each other as if to say something. The engineer stated that he thought that the fireman was going to talk to him about the defective engine. The engineer testified that he then "looked out the window and saw the automobile on the track, I started — I went into the service application and then went into the emergency position." He stated that at that time, i.e., when he started the service application, he was a quarter of a mile away from the grade crossing.

The engineer testified that as he approached a point north of Gallman, Mississippi, which was not a scheduled stop, there was an automobile approaching a grade crossing over the track, and which, when the grade crossing was "about a quarter of a mile from where I could see, he [the driver of the automobile] drove down a hill on the track and stopped on the track." The automobile was traveling on a road which crossed the railroad tracks. The witness also testified that he saw the car as it approached the tracks and started the bell and whistle because at that time he was at the whistling point where the sign indicated that the engineer should warn persons approaching the crossing. He also testified that he started to blow the whistle and apply the brakes after the men "sat on the track. They didn't make any move. I could see they didn't make any effort to move of any kind." He then testified that he started the service application, which is used to slow down the train so that it is brought under control, and stated that at that time the train was traveling at 40 miles an hour, or 60 feet a second. He also testified that he did not remember how far he was from the crossing when he made the emergency application. After he had applied the emergency application and when the engine was about a car length and a half from the crossing the men got their automobile started and moved off the crossing. The train passed them, missing the car by only a foot and a half.

The fireman testified that when the car stopped on the tracks the train was approximately 10- or 12-car lengths from the automobile; that the length of a passenger car is approximately 80 feet, and at that time the engineer made a "heavy service reduction of the service brakes of the train"; that after he made the heavy service application he made an emergency application when the front of the locomotive was approximately five car lengths from the crossing. On cross-examination he testified that at the time the automobile was approaching the crossing the locomotive was about 1,000 feet back; that the engineer first applied the brakes when the automobile stopped on the track; and that the heavy service application of the brakes would affect the movement of the cars.

The engineer testified that at the time when he made the service application of brakes the car was on the track. The engineer also testified that he had started to apply the brakes a quarter of a mile from the crossing, which would be 1,320 feet. The fireman testified that at the time the automobile was approaching the crossing the locomotive was about 1,000 feet back and that the engineer made the service application of the brakes when the automobile stopped on the tracks. He also testified that he saw the automobile 20 feet from the track moving toward the crossing. From this testimony the jury could draw an inference that the engineer was inattentive and was either conversing or about to converse with the fireman. We must bear in mind that the train at that time was traveling at 60 feet a second. On that phase of the case we find that the verdict of the jury was not against the manifest weight of the evidence, and the trial court properly denied the motion for judgment notwithstanding the verdict or in the alternative for a new trial.

The plaintiff also argues that the carrier was negligent in providing a swivel chair without arms in the ladies' powder room, and that a proximate cause of the injury was the failure to have arms on the chair. Mrs. Fontana testified that she was sitting in a chair with arms and that because of the arms she was not thrown to the floor. The plaintiff testified that she had nothing to hold on to and that at the time of the sudden stop she was thrown to the floor of the car in a twisted position. "The obligation of a carrier to provide safe appliances extends to every type of appliance belonging to, and used by, the carrier in its business of transporting passengers, and for the slightest fault or negligence in this regard, from which injury results to the passenger, the carrier is liable in damages." 10 Am Jur Carriers, § 1315. The carrier is required to guard against injuries resulting to a passenger resulting from usual or unexpected occurrences if such occurrences were within its knowledge or were such that in the exercise of due care and diligence could have been reasonably anticipated and provided against. Neering v. Illinois Cent. R. Co., supra. Defendant introduced in evidence certain pictures of the type of seats referred to in the evidence, and it put on the stand two witnesses, one of whom testified that a similar type of chair was used in New York Central Railroad passenger coaches. The other testified that chairs of the same type were used in the passenger cars of the "Milwaukee" road. The ...


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