APPEAL from the Circuit Court of Peoria County; the Hon. J.E.
RICHARDS, Judge, presiding.
MR. JUSTICE STOUDER DELIVERED THE OPINION OF THE COURT:
Defendant, Chicago & Illinois Midland Railway Company, has appealed from a judgment for $72,500 entered against it on the verdict of the jury in the Circuit Court of Peoria County in favor of Maurice Trowbridge, Plaintiff, in an action based on the FELA.
Plaintiff, age 41, was a part time seasonal employee for the defendant for twenty years. He was injured while working as an employee for defendant at approximately 1:30 P.M., on August 16, 1965, in Petersburg, Illinois.
Plaintiff was the acting foreman for two other employees of defendant, Jessie Byers and Gerald Lewis, who were engaged in cutting brush along the single track right of way near the Fifth Street crossing in Petersburg.
The procedure generally was to have Byers operate the gasoline engine McCullough rotary saw to cut the brush along the right of way. Lewis and the plaintiff would in turn follow Byers, pick up the newly cut brush and pile it in stacks at intervals along the right of way. Later the brush was burned.
The saw was a portable unit with the engine having a sling to strap over the shoulder of the operator. To the engine was connected an enclosed shaft of six feet in length to which was attached a nine inch rotary saw blade.
Trowbridge had operated various types of small power equipment, generally gasoline driven, such as rail saw, tamper, tie remover, track liner, chain saw and similar items. He had not operated this particular saw.
The tracks at the scene of the incident run generally from northwest to southeast, and about sixty yards southeast of the scene, Fifth Street crosses the tracks. At the time of the occurrence plaintiff and Byers, the crew member operating the saw, were working to the northeast of the track. Plaintiff was facing north standing on the ends of the crossties and Byers was eight or nine feet to the plaintiff's left with the saw strapped on. Byers was revving up the saw and advancing it toward the trunk of a tree of about two inches diameter which was five or six feet directly north of plaintiff on the edge of the slope. Plaintiff, holding onto the end of one of the branches of the tree with his right hand, saw out of the corner of his eye a car coming to the crossing. Thinking it to be Mr. Hicks, his immediate supervisor, he turned his head to the right momentarily to look and upon glancing back saw the tree had been cut through. Byers was taking off the saw and at the time plaintiff discovered his leg had been cut below the knee.
Plaintiff was hospitalized for a short time and was treated by physicians employed by defendant until the end of October, 1965. Trowbridge returned to work for defendant April 1, 1966.
According to the complaint and evidence several theories of negligence were advanced by plaintiff. They included the contention that the saw tended to jump and buck, that it did not include a safety guard, that plaintiff was not warned of the dangers incident to the use of the saw and that no safety meetings had been held for several years and use of the saw was not included in safety rules. Defendant contended on the other hand that plaintiff's injury was solely the result of his own inattention.
In seeking to reverse the judgment of the trial court defendant argues there were errors in rulings on instructions and evidence and also the judgment is excessive.
The principal controversy relating to instructions is whether IPI Instruction 160.02 as tendered by plaintiff and approved by the trial court over objection of defendant should have been given without modification. The instruction as given provided, "At the time of this occurrence there was in force a federal statute which provides that whenever an employee of a railroad is injured while engaged in the course of his employment, and the injury results in whole or in part from the negligence of any of the officers, agents or other employees of the railroad, then the railroad shall be liable in damages to the injured employee. Contributory negligence on the part of the injured employee shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee.". Defendant tendered an instruction in the language of 160.02 quoted as aforesaid but modified by the addition of the following language, "* * * If, however, you find from the evidence that the sole proximate cause of the injury was the negligence of the plaintiff, then the plaintiff shall not recover any damages from the defendant railroad.". Defendant also objected to another of plaintiff's given instructions (IPI 21.02, Burden of Proof) for the same reason namely the failure of the instruction to refer to plaintiff's contributory negligence as the sole proximate cause of his injury.
• 1 As its initial premise, defendant relies on the general rule that each party is entitled to have the jury instructed on its theory of the case provided such theory finds support in the evidence. (Wrighthouse v. Brown, 52 Ill. App.2d 191, 201 N.E.2d 752, Sims v. Chicago Transit Authority, 7 Ill. App.2d 21, 115 N.E.2d 96, Savage v. Blanchett, 47 Ill. App.2d 355, 198 N.E.2d 120, Hitt v. Langel, 93 Ill. App.2d 386, 236 N.E.2d 118 and Berg v. Collier, 60 Ill. App.2d 145, 208 N.E.2d 353.) The foregoing cases cited by defendant illustrate and discuss the general rule but are of little assistance by way of analogy since the cases do not involve FELA actions or instructions relating to causation. We are in accord with the general view of such cases and the rule announced is basic to any consideration of whether or not a jury is properly instructed.
This brings us to defendant's more particular argument namely that it is entitled to have the uniform instruction (160.02) modified by adding the language indicating that defendant should be found not guilty if the evidence showed that the sole proximate cause of plaintiff's injury was his own negligence. In support of this argument defendant relies on Rogers v. Missouri Pacific, 352 U.S. 500, Helton v. Thompson, 311 Ill. App. 354, 36 N.E.2d 267, Chicago St. P. & M.O.R. Co. v. Arnold, 160 F.2d 1002 and Ottley v. St. Louis, San Francisco Ry., 232 S.W.2d 966, S.C. Mo. and the comments of the drafters of the Illinois Pattern Instructions to IPI Instruction 160.02.
Any discussion of negligence or liability under the FELA necessarily includes ideas of causation. In Rogers v. Missouri Pacific, supra, cited by defendant, the court reviewed and reversed a Missouri State Court decision which set aside a jury verdict in favor of plaintiff employee. The main thrust of the Rogers opinion reflects a concern by the Court for the failure of trial courts to accept and approve the resolution of claims under the FELA by the jury. The opinion emphasizes that the determination of negligence, contributory negligence and causation in FELA cases is peculiarly a province of the jury and the trial court ...