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

AUGUST 9, 1973.

HOWARD E. WATERS, PLAINTIFF-APPELLEE,

v.

CHICAGO & EASTERN ILLINOIS RAILROAD COMPANY, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of St. Clair County; the Hon. WILLIAM P. FLEMING, Judge, presiding.

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

This is an appeal from a judgment in the amount of $185,000 entered on a jury's verdict in favor of the plaintiff, Howard E. Waters, in the Circuit Court of St. Clair County in a common law negligence action to recover damages for personal injury that plaintiff allegedly sustained on the premises of the defendant, Chicago & Eastern Illinois Railroad Company's piggyback ramp at Mitchell, Illinois. *fn1

In the complaint plaintiff charged that defendant had negligently and carelessly pushed railroad cars up and against the loading ramp, causing a bridge plate to become wedged between a car and the ramp when defendant knew or in the exercise of reasonable care should have known and should have foreseen the risk of bodily injury and harm to the plaintiff by reason thereof. Defendant, by its answer denied the allegations of negligence, and due care on the part of plaintiff, and alleged that plaintiff was not employed by defendant and alleged contributory negligence on the part of plaintiff as an affirmative defense.

Plaintiff has contended that this appeal should be dismissed on the theory that the appeal was not timely because the post trial motion was not filed within the extended time from the court's docket entry on June 12, 1969, the date of the jury verdict,

"June 12, 1969. The Jury returned the following verdict:

"We, the jury, find in favor of the plaintiff, Howard E. Waters, and against the defendant, Chicago & Eastern Illinois Railroad Corporation.

We assess the damages in the sum of $185,000.00."

Said verdict signed by the foreman and each and every member of the jury.

Judgment is entered on the jury's verdict.

(Signed) Wm. P. Fleming William P. Fleming Presiding Judge"

and the clerk's photocopying that sheet of the docket minutes and inserting that photocopy in the Book of Judgments on June 16, 1969. Subsequent to extensions of time for the filing of a post trial motion on December 4, 1969, defendant filed a "Motion for Stay of Execution and for Entry of Final Judgment, Post Trial Motion, etc." Preceding the motions were the words "Upon entry of a final judgment, the defendant files this its post trial motion". On the same day the court entered an order staying execution and set a date for a hearing on the merits. On December 29, 1969, the court allowed "that portion of the motion which seeks the entry by the court of a final appealable judgment", entered a conventional form of judgment, and reserved ruling on the post trial motion until further argument. On March 5, 1970, the court denied defendant's post trial motion, and on March 17, 1970, notice of appeal was filed from the judgment entered on December 29, 1970.

While the record does not disclose plaintiff's arguments to any part of the defendant's motion of December 4, neither does it disclose that plaintiff made any motion to strike any part of it on grounds that it was not timely filed as against the purported judgment of June 12, 1969, and both parties and the court below treated it as adequate to challenge the properly entered judgment of December 29, 1969.

• 1, 2 An order which reads "Judgment upon the verdict" without reciting in whose favor and against whom, is not a valid or final judgment order. (Kaley v. Carr, 348 Ill. App. 151, 108 N.E.2d 512.) See also Public Works and Buildings v. Greseking, 108 Ill. App.2d 105, 246 N.E.2d 707 wherein this Court stated:

"The general rule is that a judgment must designate the parties for and against whom it is rendered or it will not be a valid final judgment. Kaley v. Carr, 348 Ill. App. 151, 103 N.E.2d 512, and cases cited therein. We do not condone entry of a purported judgment which does not meet that requirement; the parties are entitled to know precisely the status of the matter and where they stand, without searching the record, once the issues have been determined." (Emphasis here supplied.)

As in that case the parties were inconvenienced by the procedure followed, but the matter was corrected, and the parties were not prejudiced.

Waters was employed by the Simpson Express and Transfer Company of St. Louis, Missouri. He alleged that he suffered back injury while attempting to lift a bridge plate. The bridge plate was an integral part of the system which allowed the trailers carried "piggyback" to be loaded and unloaded from the railroad cars. In order to load or unload the trailers from the railroad cars at the defendant's premises, there was a ramp which consisted of an inclined plane leading up to a platform which was the same height of the railroad flat cars. Thus, the tractor trailers were permitted to be driven from ground level to the height of the railroad cars and onto the railroad cars or vice versa, as required.

The "bridge plate" was used to bridge the gap or space between the end of the last railroad car against the ramp and the edge of the ramp. the bridge plate is a flat piece of metal, sometimes aluminum, sometimes steel, attached and hinged at one end so as to permit it to be raised or lowered. One such bridge plate is affixed to each end of a piggyback flat car. The ramp has a bridge plate of corresponding construction affixed to the end of the ramp by a hinged pin so as to permit that bridge plate to be lowered from the ramp onto the flat car and when the bridge plate is lowered a tractor trailer can be driven from the ramp onto the car. The bridge plates each weigh approximately 200 pounds and require two men to lift them.

Waters' job was to help load and unload the tractor trailers to and from the railroad cars. On the evening before the day of the injury, Waters and his fellow worker, William Travis, completed their work by leaving at the ramp a single empty flat car. Waters had left the bridge plates in a down position as the ramp men had been instructed to do at the end of each working day.

From time to time bridge plates would become joined or wedged to the side rail of a car and would have to be pried loose with an iron pry-bar. The iron pry-bar was carried in the cab of the trailer and was used for many purposes by the ramp men, including the main use of taking off side rails of low bed trailers, lifting block, as well as the prying loose of the bridge plates when that was necessary.

Upon returning to work on July 25, 1962, Waters and Travis found a number of railroad cars had been placed onto the ramp track containing trailers which had been shipped in and were to be unloaded that day. Waters and Travis set about their work of driving onto the cars and unloading the trailers. At the conclusion of the day and after all of the cars had been loaded, Waters and Travis, as their last act of the working day, were to raise the bridge plates between the cars and between the last car and the ramp thus indicating that the trail could be taken out during the night. In attempting to lift the bridge plate on the last car Waters sustained the injury to his back.

Although there is some dispute as to how the injury occurred, both agreed that they squatted down together and attempted to lift the bridge plate together after saying "OK, let's go, give it all we've got." It was while attempting to lift the bridge plate with all of their strength under those circumstances that Waters and Travis testified that they discovered the bridge plate was jammed and/or stuck against the side rail of the railroad car so that they couldn't lift it. Waters testified that he got a catch in his back when the plate did not move as he lifted on it.

There was testimony that Waters did not look at the position of the plate before lifting although he was squatted with his eyes only 30 inches from the plate. There was also testimony that the only way to determine whether or not there was a jammed or stuck plate was to lift on the plate. A defense witness testified that "This plate is so heavy that there is no way you have of checking that in the ordinary course of your business to see whether it is stuck or not, without giving it everything you've got." He further stated "You don't expect it to happen. You're not looking for it. ...


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