Appeal from the Circuit Court of Cook County; the Hon. HAROLD
P. O'CONNELL, Judge, presiding. Affirmed.
MR. PRESIDING JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT.
Rehearing denied November 9, 1964.
This is a Federal Employers' Liability Act case, in which plaintiff appeals from a judgment for defendant, entered on a not guilty verdict. The plaintiff, Roy P. Woodruff, employed as a signalman for the defendant railroad, seeks to recover for back injuries received when he fell from a signal pole, contending that the pole climbing equipment (leg irons) furnished him by defendant was not reasonably safe.
The principal question on appeal is whether prejudicial error was committed by the trial judge in admitting into evidence, as admissions, portions of a statement signed by plaintiff shortly after the occurrence, wherein he stated that the leg irons were new and sharp, and that he did not know what caused his fall; and in permitting those portions of the statement to be taken by the jury to the jury room.
On the morning of March 25, 1960, plaintiff was descending from a 25-foot pole, when he fell about ten feet to the ground. As a pole climber, his equipment consisted of a body belt, a safety belt, and leg irons. A leg iron is a strap of metal, between 16 and 18 inches long, curved at the bottom to form a stirrup. The irons are secured to the leg by means of straps. A metal spur or gaff extends from the lower part of the leg iron. When climbing or descending a pole, the climber's legs are held out at a 30-degree angle from the pole, and the spur is inserted into the pole and removed as steps of about 5 to 8 inches are taken.
Plaintiff testified that he had been working as a signalman for the defendant for approximately three years prior to the occurrence, signal pole climbing being part of his duties. He said that he had been using his own leg irons when he went to his foreman, Merrill Hershberger, two or three days prior to the occurrence, and told him that the spurs were becoming so short they were unsafe. Hershberger found a pair of company leg irons and gave them to plaintiff. He complained to Hershberger that the irons were too long for his legs, and that the "gaff on one of the hooks was shorter. To me, it looked like it was a converted tree gaff that had been ground down to match the other one." He was told that no other climbers were available.
As to the occurrence on March 25, 1960, plaintiff testified, "The first time I used these new gaffs that were issued to me was on the morning of the accident. I climbed two or three poles prior to the accident on that morning." He further said he had the safety belt around the pole and, as was customary, he unsnapped the safety belt, removed the left spur from the pole, and inserted it into the pole at a lower point. He started to take a step with the right foot, and he fell to the ground. A fellow employee testified, "I first learned of the accident when I heard a thud and looked around and I seen Roy. I believe he was on the ground, or just getting up; I forget which it was. He was not unconscious. He did not say anything about how the accident occurred. He did not say anything about his equipment. He did work the rest of the day, doing some climbing the rest of that day."
Plaintiff's witness, Walter H. Perry, a signalman, testified, "I was present when Mr. Hershberger issued these leg irons. . . . and he said we would have to use them because these leg irons were all we could get for now." He further testified that when plaintiff fell, he was approximately 120 to 130 feet away. He saw plaintiff finish his job on the pole and start to climb down, and later "I heard him holler. He was laying at the bottom of the pole. . . . He was hurt and the wind was knocked out of him. We tried to move him. Woodruff then said to leave him lay there for awhile until he got his breath back. . . . He didn't perform any more work on that day except on the ground."
On cross-examination, Perry testified: "After the accident I looked at the gaffs on Mr. Woodruff's climbers. By the gaffs, I mean the spurs. . . . There was a difference between the lengths of those spurs. That difference was about an eighth to a quarter of an inch. The gaffs are supposed to be a minimum length of an inch and a quarter. Both of these gaffs were well over the inch and a quarter. The inch and a quarter is the required minimum length. Both gaffs were sharp. As to whether there was anything wrong with them other than the difference in the lengths of the gaff, one looked like a tree hook cut off, it was curved out more than the other. One gaff came straight down like a regular pole hook and the other looked like a tree gaff cut off. . . ."
Perry, when questioned about a statement given by him in September, 1962, a few months before trial, to a claim agent of the defendant railroad, said: "I have examined that document as to what it says about the gaffs. I see it says here that I say both gaffs were sharpened and there was nothing wrong with the gaffs. . . . He only had one accident with these climbers. I had seen the pole on which Mr. Woodruff had been working. I looked at that pole after the accident. I didn't notice any gaff marks on it or any cut out marks where there was any indication of one spur having cut out. As to whether there was anything wrong with the pole, I don't remember the pole that well. . . . If it is in the statement that I said I didn't notice any defects in the pole occupied by Woodruff then I must have stated it. . . . If it's in the statement, I said in September `from time to time Woodruff complained to me about his back before the time of this accident.' I have examined the statement and that sentence is in there." Perry's statement was introduced into evidence for impeachment purposes and was not sent to the jury room.
Defendant's witnesses included the foreman, Hershberger, who did not deny plaintiff's testimony as to the conversation about the issuance of the leg irons, but said he did not recall it. He testified that when he issued the leg irons to plaintiff, he observed there was a slight variation in the length of the spurs, but he did not then measure them. On Hershberger's identification, the leg irons issued to plaintiff shortly before the occurrence were received in evidence. Plaintiff's old leg irons were also received in evidence.
Defendant's witness, Fred McNamara, employed by defendant as supervisor of communications and signals and a former signalman for about twenty years, testified as to the leg irons in issue: ". . . As for telling whether they are in proper condition for climbing, I wouldn't hesitate to use them. The minimum length of the spur required is an inch and a quarter. At your request I did bring a ruler. Measuring on the back side, the length of the spur is one and 15/16ths of an inch; that's as close as I can read it. That is a 16th of an inch under two inches. This is referring to Exhibit 2. Referring to Exhibit 2-A. This one is two inches, I would say. . . . In my opinion, 1/16th or 2/16ths, at the most, wouldn't make any difference in climbing with those spurs. I don't think that you would feel the difference at all." He also examined plaintiff's old spurs and testified: "As for marking Defendant's Exhibit 3 for you and telling you the length of those; an inch and 5/16ths. Measuring 3-A; an inch and 7/16ths. That would be a variance of 2/16ths or one-eighth of an inch." As to the spurs in issue, he testified: ". . . those are for climbing poles. . . . These are not tree climbing equipment."
Defendant's witness, J.A. Moore, a supervisor who "climbed poles probably ten to twelve years," made a personal investigation of the occurrence and the pole and spurs. As to the pole, "I found nothing unusual." He testified as to the difference between tree climbing spurs and pole climbing spurs, ...