APPEAL from the Appellate Court for the First District; heard
in that court on appeal from the Circuit Court of Cook County;
the Hon. JOSEPH A. POWER, Judge, presiding.
MR. CHIEF JUSTICE SOLFISBURG DELIVERED THE OPINION OF THE COURT:
Rehearing denied November 21, 1968.
Plaintiff, Leo William Conway, filed a negligence action against defendant, The Belt Railway Company of Chicago, for injuries sustained while unloading camber beams from a gondola-type railroad car delivered by the railroad to plaintiff's employer, Greenwood Lumber, Inc., of Chicago, the consignee of the shipment. Belt Railway's third party complaint against Greenwood for indemnity under an agreement, in the event the railroad was held liable to plaintiff, was dismissed by directed verdict. The jury verdict of $25,000 for plaintiff against Belt Railway was reversed without remandment by the appellate court. (88 Ill. App.2d 134.) This court has allowed plaintiff's petition for leave to appeal.
The major issue presented on this appeal is whether the Belt Railway, as the delivering carrier, breached any duty of care owed to the employees of the consignee.
The essential facts are not in dispute. On August 7, 1958, Super Structures, Inc., of Minnesota, loaded six laminated wooden camber beams into a gondola car of the Chicago, Rock Island & Pacific Railroad Company, which transported the car from Minnesota to Chicago. There it was turned over to the Belt Railway, an interchange railroad, which delivered the gondola car with the beams to the consignee, Greenwood Lumber, Inc., plaintiff's employer. Greenwood was to unload the beams and deliver them to the work site of its customer, King Building Supply Company.
Inasmuch as the defective lading is the alleged cause of plaintiff's injuries, a detailed review of the physical facts is warranted.
The gondola car was approximately 65 feet long and 3 1/2 or 4 feet high. The ends of the car could be opened and laid flat. Each beam was 49' 4" long, slightly "V" shaped, so that as the "V" part of the beam rested on the bottom of the gondola car, the ends of the beams were about 4 feet above the bottom of the "V". Near each end of the gondola car a 6-x-8-inch timber was bolted to, and lay across the top and width of the car, under the protruding ends of the beams. These timbers formed a cradle which held the ends of the beams off the floor of the car, and kept them from tipping backward or forward.
The six "V" beams were packaged in two bundles of three beams each, and each bundle of beams weighed over 8,000 pounds. Each beam was 9 inches wide, so that each bundle of three beams was about 27 inches wide. Vertical timbers or stakes had been placed around the sides of the gondola car and between the two bundles to keep the beams from touching the sides of the car and from contacting each other.
On August 10, 1958, at about 1:00 or 2:00 A.M., when the Rock Island Railroad turned over the gondola car to The Belt Railway, the car was inspected by the latter, and nothing wrong was found with the load. Sometime during August 11, 1958, the gondola car with its load of beams was pushed by a locomotive off the main Belt line down a slight grade into the yard of the Greenwood Lumber company, onto its single track. That same day, when the president of Greenwood, Charles Bournazos, inspected the load, he noticed that the 6-x-8-inch cradle timber at the west end of the car was broken and partially missing, and that the shifted, damaged beams were lying partially over on their sides. He notified Belt Railway, which immediately sent inspector Rodeck, who inspected the load at 1:00 P.M. on August 11.
From Rodeck's report and testimony, it appears that the 6-x-8-inch timber that ran along the top width of the west end of the car had broken and no longer supported the beams, which had shifted about two feet toward the west end of the car. The bundle of beams running along the south length of the car was leaning against the bundle of beams running along the north length of the car. Some of the vertical wooden timbers were lying on the floor of the car. The load was in "bad-order" condition, but he did not see anything wrong with the gondola car. No "bad-order" tags were placed on the car. The car was already on the consignee's premises and required no further movement. No "bad-order" report form was filed, as that is a form for internal use of the railroad to show damage to a car. He filed only a damaged freight form, which stated that "Abrasion was made at points where tipped unit [beams] made contact with other unit and also side of car," and that, "Due to the fact the car was not unloaded the full extent of damage could not be determined."
Rodeck testified further that he did not instruct Greenwood Lumber how to unload the gondola car, or offer to have the railroad unload it. He did authorize the consignee to "go ahead," indicating that as far as Belt was concerned, it had investigated the damage to the load. There is no evidence that Greenwood rejected the load.
The following day, August 12, Bournazos, the president of Greenwood, proceeded to unload the gondola car. According to plaintiff's testimony King Building Supply Company was in a hurry to get the beams it ordered from Greenwood.
Bournazos was assisted in the unloading operations by plaintiff and another Greenwood employee, all of whom were experienced in unloading heavy trusses and had seen many shifted loads. With a fork lift they straightened the south bundle of beams which was tilting against the north bundle. Bournazos and another employee then chained the west end of the south bundle to the gondola car, but left the east end of the south beams standing free. They raised the north bundle of beams, using a fork lift on one end and the electric hoist on the other end. However, they could not raise those beams high enough to clear the single remaining vertical stake which projected above the side of the gondola car.
Plaintiff re-entered the gondola car from the west end, walked the length of the car, under the raised beams, to the vertical stake which was near the east end. After loosening the wire attaching the stake to the car, he removed the stake and tossed it to the ground. As he worked plaintiff was facing north, and as he turned east to leave the car from the east end, he saw the east end of the south beams moving toward him. He tried to stop the beams with his hands, but the beams pinned him against the side of the car. He was squeezed until he turned blue. Bournazos and the fellow employee managed to place supports under the north bundle, ...