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Jenkins v. Chicago & Eastern Ill. R.r. Co.

MAY 9, 1972.

SIMON B. JENKINS, JR., PLAINTIFF-APPELLEE,

v.

CHICAGO & EASTERN ILLINOIS RAILROAD COMPANY, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. JAMES A. GEROULIS, Judge, presiding.

MR. PRESIDING JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT:

Plaintiff, an employee of Flintkote Company of Chicago Heights, Illinois, brought an action against defendant railroad for injuries he sustained while engaged in moving a boxcar. The complaint contained two counts alleging common law negligence and two counts alleging violations of the Safety Appliance Act (45 U.S.C. § 1 et seq.). The jury returned a general verdict against defendant for $325,000 and judgment was entered accordingly. Defendant's motions for directed verdict, judgment notwithstanding the verdict and for a new trial were denied and the railroad appeals.

Plaintiff's duties, as an employee of Flintkote, were to load and unload boxcars and trucks at its loading docks in their freight yard. Incident to these duties was the necessity of moving boxcars on the siding up to and away from the loading docks. This movement was ordinarily accomplished manually by the use of a tool known as a "car mover." *fn1 The tool made it possible for one or several men to move cars spotted along the 762 feet of spur track in Flintkote's freight yard.

On October 9, 1967, defendant's train crew moved several railroad cars into the Flintkote yard. Two of these cars, coupled together, were placed at spots 9 and 10 in the yard. The two cars are hereinafter referred to as the north car and the south car. Defendant's crew testified that they set the brakes on both cars after they were spotted.

The following day the task of unloading the cars commenced. Pursuant to his supervisor's directions, plaintiff secured a "car mover" to move the south car to the loading dock. Another employee positioned himself on top of the south car to release the brakes and later apply them when the car reached the desired position. The supervisor was to assist by pushing the south car with a fork lift truck. Plaintiff operated the pin lift handle on the side of the car which raised a pin out of the coupler assembly into an "up" position. This operation enables the cars to uncouple as they are moved apart. Plaintiff then positioned himself inside the rails between the two cars, placed the car mover under the wheel of the south car and proceeded to operate it. As he attempted to jack the south car forward, his supervisor placed the fork lift truck in motion against the car and the wheels spun. Despite the force applied, the south car would not move. Plaintiff then checked the coupler pin and observed that it remained in an "up" position. Another employee stood outside the rails to assist plaintiff with the car mover in a second attempt to uncouple the cars. The pin was still in its "up" position. As force was applied the second time, the south car moved and plaintiff began to walk behind it, pushing and pumping the car mover. The two cars did not uncouple, however, and the southwest wheel of the north car struck plaintiff's right foot and pulled him down upon the rail under the car. He sustained traumatic amputations of the lower third of both legs. Testimony at trial indicated that tests of the equipment were made by the railroad after the injury occurred, and the couplers and brakes of both cars were found to be in normal operating order.

In this appeal, defendant raises the following contentions for reversal:

(1) the trial court erred in denying defendant's motions for directed verdicts because (a) the plaintiff presented no evidence sufficient to raise a fact question for the jury as to whether defendant was guilty of a violation of the Safety Appliance Act; (b) the plaintiff presented no evidence sufficient to raise a fact question for the jury as to whether defendant was guilty of common law negligence; (c) the railroad car which caused the injury was not in use on the defendant's line at the time of the injury as required by the Safety Appliance Act and therefore the statutory count should not have been submitted to the jury; and (d) contributory negligence is a complete defense to an action by a non-employee of the railroad predicated upon an alleged violation of the Safety Appliance Act, plaintiff was guilty of contributory negligence as a matter of law, and thus the count should not have been submitted to the jury.

(2) The trial court erred in denying defendant's motion for judgment notwithstanding the verdict for the same reasons advanced in the first contention.

(3) The trial court erred in denying defendant's motion for a new trial because (a) the verdict is against the manifest weight of the evidence; (b) the trial court erred in admitting speculative and misleading opinion evidence; (c) the trial court erred in denying defendant's motions for directed verdict as to unproven grounds of recovery; and (d) the trial court erred in giving Safety Appliance Act instructions to the jury.

In effect, defendant argues that it did not violate any of the provisions of the Safety Appliance Act and, even if it did, the Act is not applicable in this case, nor did it breach any duty of care imposed under the law of common law negligence. On the contrary, plaintiff received his injuries as a result of his own negligence and that of his fellow employees and therefore the trial court erred in denying its motions.

On the other hand, plaintiff contends that, as a direct result of the failure of the two boxcars to uncouple despite actuation of the uncoupling device in the usual and ordinary manner, the failure of the hand brakes to prevent movement of the north car, and the railroad's negligent spotting of the cars on the siding, the north car followed the south car down the track causing the loss of his legs.

OPINION

• 1 We note at the outset that this case was submitted to the jury with instructions on two theories of recovery, common law negligence and violation of the Safety Appliance Act. No special interrogatories were tendered so that in the event of a general verdict, it could be determined which theory of recovery it was predicated upon. We also note that the defendant did not tender separate verdicts for each count. Consequently, this court cannot know which count was the basis of the verdict. It is settled that where several causes of action have been alleged and a general verdict results, the verdict will be sustained against a general motion for directed verdict or a motion for judgment notwithstanding the verdict if there are one or more good causes of action or counts to support it. (City of Litchfield v. Thorworth (1929), 337 Ill. 469, 169 N.E. 265; Wolford Morris Sales, Inc. v. Weiner (1966), 75 Ill. App.2d 238, 221 N.E.2d 308.) In this case, the defendant submitted separate motions for directed verdicts on the common law negligence count and the Safety Appliance Act count. Since the separate counts would not have gone to the jury had either or both of the motions been granted, we must review the trial court's decision on each motion. However, the lack of special interrogatories and verdicts testing the general verdict renders the above rule applicable to defendant's contention that the court below erred in denying judgment notwithstanding the verdict. Therefore, as to that argument, the existence of one good cause of action would dictate that the denial of the motion be upheld.

• 2-5 We initially address ourselves to the contention that there was insufficient evidence presented at trial to raise a fact question as to a violation of the Safety Appliance Act. Injuries resulting from a violation of the Act give rise to action for damages by the injured person. (Boyer v. Atchison, Topeka & Santa Fe Railway Co. (1967), 38 Ill.2d 31, 230 N.E.2d 173.) In such an action the plaintiff is not required to prove negligence or a specific defect in the equipment that proximately caused the injury, but only that the equipment failed to perform efficiently, thereby causing the injury. The failure of the equipment to perform as required by the Act is itself an actionable wrong, totally independent of the law of negligence, and that liability cannot be escaped by proof of due care or diligence. (Boyer v. Atchison, Topeka & Santa Fe Railway Co., supra; Bardo v. Chicago River & Indiana Railroad Co. (1967), 87 Ill. App.2d 445, 231 N.E.2d 713.) Therefore, to present a fact question for the jury under the Safety Appliance Act ...


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