Appeal from the Superior Court of Cook County; the Hon. EZRA
J. CLARK, Judge, presiding. Affirmed.
MR. JUSTICE DEMPSEY DELIVERED THE OPINION OF THE COURT.
The administratrix of the estate of William J. Esderts, brought this action against the defendant, Chicago Rock Island & Pacific Railroad Company, based upon the Federal Employers' Liability Act (45 USCA § 51, et seq.). The jury returned a verdict in the defendant's favor, judgment was entered thereon and the plaintiff appeals.
The plaintiff contends that she was deprived of a fair trial because improper procedure was followed in the use of impeaching statements in the cross-examination of one of the plaintiff's witnesses, because the trial court recalled the jury after proofs were closed and read these statements to the jury, and because of prejudicial argument by the defendant.
William Esderts was the foreman of a bridge-repair crew employed by the defendant. The crew had spent a few weeks in Iowa Falls, Iowa, repairing a bridge and were using three railroad cars for their headquarters, one of which was their bunk car. The three cars were on a switch track just south of the railroad's single-track main line which ran east and west through Iowa Falls. There were other switch tracks to the north of the main line. The bridge was on the main line three-quarters of a mile west of the bunk car.
In the late afternoon on June 5, 1952, Esderts, who had been employed by the railroad for nearly 20 years, Wilbur Peet, a young man and a new employee, and another employee who was also doing the cooking for the crew, left the bridge by a motorcar, which ran on the railroad tracks, and rode to the bunk car so that Peet could fill out some papers required for his employment and the other employee could prepare the evening meal. They traveled eastward over the main line and upon reaching the bunk car the motorcar was removed from the main line so that it would be out of the way of an expected passenger train; it was placed on the switch track to the south but it was not turned around. The front end was still facing east and the rear end was to the west.
The motorcar was a small flat car which could carry four men. The men would sit sideways on the platform of the car, two on one side and two on the other, back to back, facing away from the tracks on which the car rode. There were footboards for their feet and there was a canvas windbreak on the front end of the car. The operating levers were in the center of the platform and the man who ran the car would turn his body at an angle so that he could see ahead and reach the levers with that hand which was toward the inside of the car.
After Peet had completed his forms, Esderts and he reboarded the car to pick up the rest of the crew at the bridge. Peet sat on the south side with his body turned towards the west, the direction in which the car was to go; he was leaning against the metal bars which supported the windbreak which was to the east and back of him. Esderts sat on the north side of the car with his upper body and face turned to the west and his right hand operating the controls behind his back. They then proceeded westward on the switch track, the car being run backwards contrary to the rules of the railroad.
The switch track entered the main line some distance to the west. 216 feet east of where the junction took place there was a derail device located on the south rail of the switch track. This was a safety device, the principal purpose of which was to prevent cars on the switch track from entering the main line and colliding with passenger or other trains. The derail would deflect cars to the south and away from the main line. Derails were painted yellow and there were such devices on all the switch tracks of the defendant railroad. The rules of the railroad required the devices to be set for their intended purpose. The derails were locked to the tracks and had to be unlocked by hand to permit movement of cars onto main tracks. The railroad rules required track foremen to watch the derails and to reset them if they were in a wrong position. The derail on the south switch track was locked and Esderts had a key for it.
As the motor car went westward at five to eight miles per hour, an eastbound switch engine on a track north of the main line passed by. Peet turned his head to the right and waved to a man on the engine. Esderts and the foreman of a switch crew waved to each other, too. A moment later the motorcar struck the derail and was hurled from the tracks. Esderts was flung off backwards and the car landed on top of him. Peet, who was thrown clear, removed the car from Esderts, who, while in obvious pain, was not unconscious. Other railroad men working in the yard came to help, a doctor was called and Esderts was taken to a hospital where he died the next day.
Although there was little dispute as to the manner in which the accident occurred, there were disputes concerning the scene of the accident. There was a warning sign on a four or five-foot high post located about six feet south of the derail. The post had the word "DERAIL" painted vertically on its east and west sides. One dispute concerned the legibility of this sign, whether it needed painting and whether it was obscured by weeds. Another dispute pertained to the visibility of the derail device, whether it was painted yellow or whether it was the same rusty color as the rail. Still other disputes concerned the weeds between the rails of the switch track, the weeds to the south of the track and the presence of debris between the rails and in the general area. All these issues, which the jury resolved favorably to the defendant, were pertinent under the plaintiff's complaint which alleged that the defendant had carelessly and negligently:
a. maintained, operated and controlled a certain track and derail device in such a manner as to create a dangerous and hazardous condition to railroad employees required to use the track;
b. failed to provide plaintiff's decedent with a safe place to work;
c. permitted weeds, grass and foreign growth to accumulate around the derail device so as to obscure the presence of the device from plaintiff's decedent;
d. failed to post adequate signs or otherwise to warn plaintiff's decedent of the presence of the device;
e. allowed and permitted a certain derail device to remain in close proximity to a passing truck and in a concealed location so as to create a hazard and trap for railroad employees using said track.
The Federal Employers' Liability Act provides that a railroad will be liable for any injury or death to an employee of such carrier resulting in whole or in part from the negligence of any of the officers, agents or employees of such carrier, or by reason of any defect or insufficiency due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment. The Act further provides that contributory negligence on the part of the injured employee will not bar the action, but the damages will merely be diminished by the jury in proportion to the amount of negligence attributable to such employee.
It is our opinion from reading the entire record that it was not unreasonable for the jury to reach the conclusion that it did. The evidence, although in conflict, was sufficient for the jury to find that no negligence of the railroad contributed wholly or partially to Esderts' injury and death. The plaintiff contends, however, that the jury's verdict was improperly influenced by errors which took place during ...