Appeal from the Circuit Court of St. Clair County; the Hon.
HAROLD O. FARMER, Judge, presiding. Affirmed.
Plaintiff Goodman, employed as a carman's helper or carman by the Terminal Railroad Association of St. Louis, brought suit against his employer in the Circuit Court of St. Clair County for damages under the Federal Employers' Liability Act. Trial before a jury resulted in a verdict of $125,000 for the plaintiff. Defendant's post-trial motion was overruled and the judgment allowed to stand conditional upon the plaintiff filing notice of remittitur, in the amount of $45,000 which notice was filed by plaintiff. Defendant has perfected his appeal to this court, urging that the trial court should have granted defendant's motion for judgment notwithstanding the verdict and in the alternative that the court erred in refusing defendant's motion for a new trial.
The injury for which the action was brought was sustained on Saturday, February 3rd, 1962, while plaintiff with two other employees, was engaged in removing a car door weighing 480 pounds, pursuant to a call made by Cox, the assistant yardmaster of defendant's C.D. Yards, in East St. Louis, over the loudspeaker system, to the effect that a car door had fallen off and was leaning against a car on track 22, and was fouling tracks 23 and 24 so that they could not be switched. All three of the tracks had cars on them. Upon the call being made, plaintiff walked to the shanty from which the call came where he and another carman, Dumstorff, were advised where the door was and proceeded to the spot. Upon arrival Dumstorff tipped the door over on a track and plaintiff and Dumstorff chained it to a switch engine which had been sent by the yardmaster and which pulled it to a clearing. While attaching it to the switch engine, a third carman, Berry arrived, and upon the door being either disconnected from the engine or the chain coming untied at the clearing, the three carmen turned it end over end, two times, in order for it to clear the tracks; the first time without incident, and on turning it over the second time, plaintiff testified, he felt a sharp pain on the right side of his back.
Plaintiff continued on the job until February 7 when he consulted a doctor, and was hospitalized for 12 days. On April 5th he was again hospitalized, a laminectomy performed on April 24th, and surgery to evacuate a clot on May 4th. Although he was discharged from the hospital on May 12, he was returned to the hospital subsequently in an attempt to restore motion to his back by stretching it under anesthesia; the attempt was unsuccessful and he walks with a cane and is bent over twenty to thirty degrees, totally disabled from any gainful employment. Plaintiff has suffered no pain since his surgery but requires medication, as well as treatment for a nervous condition, and wears a brace.
The record also shows that he had had a laminectomy in 1957, followed by hospitalization in April 1958 as a result of attempted suicide, was off work from April 5 to June 16, 1958, and was off work, due to what was diagnosed as a nervous breakdown, from September 5 to the middle of November 1958. He had been employed by defendant as a carman or carmen's helper for 14 years prior to 1962, and with both Berry and Dumstorff, was at the time of this occurrence under the supervision of the car foreman, Samuel Martin, who was not present in the yards on February 2, 1962, but was on call. Martin knew plaintiff had undergone back surgery in 1957, and testified that plaintiff did the work assigned him without any difficulty. The record is silent as to whether Cox knew of plaintiff's previous disability, or the size or weight of the door.
There is a conflict in the evidence as to the customary manner of removing fallen car doors; there was testimony that machinery was used to remove them as well as testimony that they were frequently removed by human strength; there was also testimony that when removed by human strength as many as eight men were required and testimony by Dumstorff that similar doors had been and could be safely flipped over by three men. The safety rules provided against any employee engaging in unsafe work. There is undisputed evidence that the three men were not directed in the manner in which they were to remove the door, and that no one of them was in charge of the others. Likewise, it is undisputed that there was available in nearby yards, upon a call from a person in authority, a truck which had been used to pick up doors previously; Cox had authority to call for the truck but the truck was not called for. There is also testimony that cars were on the tracks, so that without switching the cars the truck could not have reached the point at which the door had fallen. The record is silent as to whether the truck crew would have responded to a call from any of the three carmen, including plaintiff.
In the complaint plaintiff charged that defendant negligently, (1) failed to provide plaintiff with sufficient, adequate or proper tools or machinery with which to do his work, (2) failed to provide sufficient employee assistance to perform the assigned duty, and (3) assigned work that defendant knew, or by the exercise of reasonable care should have known, would have caused or aggravated plaintiff's pre-existing condition. The answer denied each and every allegation of negligence and in its additional defenses defendant claimed plaintiff's injuries were caused by his sole negligence, or in the alternative that his negligence contributed to cause his own injuries; the additional defenses were denied by plaintiff.
[1-4] The principal issue is whether the evidence was sufficient to go to the jury on the question of negligence. Under the Federal Employers' Liability Act a carrier is liable in damages for injury resulting in whole or in part from the negligence of any of its officers, agents or employees. Assumption of risk is no defense nor does contributory negligence bar a recovery. In determining whether a verdict in plaintiff's favor is supported on the record, the sole question is whether there is any evidence, considered in the light most favorable to the plaintiff, that defendant was guilty of negligence which contributed in whole or in part to the injury. (Finley v. New York Cent. R. Co., 19 Ill.2d 428, 167 N.E.2d 212; Hall v. Chicago & N.W. Ry. Co., 5 Ill.2d 135, 125 N.E.2d 77.) In Rogers v. Missouri Pac. R. Co., 352 U.S. 500, it was held that under the Federal Employers' Liability Act, the test of a jury case is whether the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the employee's injury. Where as here, a motion is made for judgment notwithstanding the verdict, a question of law is presented as to whether, when all the evidence is considered together with all reasonable inferences therefrom in its aspect most favorable to the plaintiff, there is a total failure or lack of evidence to prove a necessary element of plaintiff's case. (Finley v. New York Cent. R. Co., 19 Ill.2d 428, 167 N.E.2d 212; Bonnier v. Chicago, B. & Q. Ry. Co., 2 Ill.2d 606, 119 N.E.2d 254.)
[5-7] As to whether there was any negligence on the part of either defendant or plaintiff in the state of this record, was a question of fact to be resolved by the jury, from the evidence they heard. Considering the evidence as a whole, we think there is sufficient evidence from which the jury could find that the defendant failed to furnish equipment suitable for the job plaintiff was expected to do or that defendant failed to provide plaintiff with sufficient employee assistance and that such failure contributed at least in part to the injury. The fact that there was a truck with a hydraulic lift that was used on many occasions to move these doors indicates that the defendant recognized that special equipment might be needed for the removal of these doors. They may have reasonably concluded, from the lack of proof that the truck would not have been available to the carmen on the carmen's call, that a carman had no authority to call; and in view of Dumstorff's testimony that three men could safely flip such a door, that plaintiff by his participation in selection of the manner of moving the door, was not negligent. There is nothing in the record to show that plaintiff or any of the carmen had authority to refuse to do the work, unless it was unsafe, or order mechanical equipment. The defendant is chargeable with the knowledge of its employee Martin, that plaintiff had pre-existing spinal surgery and the jury could have reasonably concluded that defendant was negligent in assigning plaintiff to a duty which could aggravate a pre-existing physical condition. The fact that contrary inferences would be equally supported by the evidence is not sufficient to show unreasonableness of the verdict. (Finley v. New York Cent. R. Co., supra.)
Defendant urges that in view of the facts that Cox did not tell the three experienced carmen the manner in which the work was to be done, and was not on the scene when it was done, that the three carmen chose the allegedly unsafe method and that if any negligence was involved it was the negligence of plaintiff who should have best known his own physical limitations, and who participated in the decision to use the allegedly unsafe method, without complaint and without requesting more manpower or mechanical equipment. In support of this contention, defendant urges that Wadiak v. Illinois Cent. R. Co., 208 F.2d 925, is factually analogous and that its holding to the effect that the law imposes no liability where the plaintiff has a choice of methods and nothing was done by the defendant to cause injury in the method voluntarily chosen by the plaintiff, is applicable herein.
With this contention we do not agree. The Wadiak case was a comparatively simple factual situation in which the reviewing court found that adequate equipment with which to do the work safely was available. In the present case the ready availability of equipment and additional manpower are controverted. In the Wadiak case the question of the employee's negligence was approached on the theory that "the weight of the evidence under the Employers' Liability Act must be more than a scintilla before the case may properly be left to the discretion of the jury." That such theory in a case under the Federal Employers' Liability Act is erroneous is suggested by a host of later cases. *fn1 In Deckert v. Chicago & E.I.R. Co., 4 Ill. App.2d 483, 124 N.E.2d 372, even though making a pronouncement wherein it was stated at page 493:
"If a workman is provided with a safe method of doing his work, but selects another more hazardous method, it might be said that he voluntarily assumed the risk, but even in such case it might be better said that the employer has discharged his duty by providing a safe method, and therefore was not negligent,"
the court distinguished the Wadiak case on the facts, in a case in which the risk of employee's falling was so obvious that it was only reasonable to assume that the employee perceived it, and affirmed recovery. There the court said at page 491,
"Of course, he could (at least in theory) have refused to perform the assigned task. While the defendant does not state it in plain words, this argument necessarily implies that the plaintiff assumed all the risk, when he undertook ...