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Howes v. Baker

OCTOBER 23, 1973.




APPEAL from the Circuit Court of Cook County; the Hon. WILBERT F. CROWLEY, Judge, presiding.


Glenn W. Howes (hereinafter plaintiff) commenced an action under the Federal Employers' Liability Act, 45 U.S.C.A. sections 51-60, against The New York Central Railroad Company, a corporation which was one of the predecessors to Penn Central Transportation Company. The successor company and its trustees were substituted as parties defendant and hereinafter will be referred to as such.

In essence, plaintiff alleged below that defendants were negligent in failing to provide him with a reasonably safe place to work, charging that defendants knew or ought to have known that the area between an industrial side track and a loading platform — property owned by one of defendants' customers — was hazardous, owing to an accumulation of ice, snow, paper used as lining material in railway cars, and other debris upon which plaintiff slipped and fell, injuring his head.

This appeal by defendants emanates from a judgment entered upon a jury verdict in plaintiff's favor in the sum of $60,000.00. *fn1 Motions for directed verdicts, both at the close of plaintiff's case and at the close of all the evidence, were denied by the trial court. In addition, a post-trial motion seeking a judgment notwithstanding the jury's verdict and for a new trial was similarly denied.

The issues presented for review are: (1) whether the trial court properly denied defendants' motion for a judgment notwithstanding the verdict because the evidence and the inferences therefrom favorable to the plaintiff presented a jury question; (2) whether the conduct of plaintiff's attorney was designed to, and did in fact, deprive defendants of a fair trial; and (3) whether the jury was properly instructed on the applicable law.

The facts pertinent on review are as follows. Plaintiff, a resident of Ohio, was an employee of defendant-railroad for some 14 years, and worked for the company in Columbus, Ohio in the capacity of a yard clerk and "car checker." As such, he worked not only in the offices of the railroad, but also on the properties of industries serviced by his employer, some of which maintained warehouses adjacent to side tracks located in the area where plaintiff performed his duties. Plaintiff's responsibilities included frequenting defendants' customers to check the yard tracks and the railway cars situated on the customers' side tracks for the purposes of demurrage; checking the load status of the cars; and, on occasion, observing and repairing refrigerator cars on the customers' side tracks. Plaintiff worked from time to time in inclement weather, and, if he considered conditions on the property of a customer hazardous, plaintiff was to report the situation to the customer's traffic manager; if nothing was done to rectify the circumstance, he was then to report it to his supervisors.

Plaintiff was injured on February 5, 1965, when he slipped and fell on the premises of Colonial Stores, one of his employer's customers. Colonial maintained a warehouse and had two side tracks adjacent thereto. One track, known as a "perishable track," ran north and south, paralleling a high loading platform or dock, which was located east of the track. The other track ran around the warehouse.

It had snowed on several occasions in the days preceding plaintiff's accident, and, on February 5, 1965, ice and snow had accumulated in the area between two railway cars, which freighted potatoes and which were located on Colonial's perishable track, and the company's loading dock. Over and above that, the area was littered throughout with pieces of liner paper used to line the insides of potato cars. (A reading of the record leaves no doubt that the area mentioned was seldom unlittered; not only liner paper was scattered throughout, but rubbish, cardboard, and boards as well. Plaintiff reported the condition to his supervisor during January of 1965 and on other occasions during 1964.)

On February 5, 1965, plaintiff arrived at his job, parked his automobile, and proceeded to inspect the two potato cars on Colonial's side track. As was his custom of inspection, he walked between the cars and the loading platform, the area described in detail above. After completing his inspection of the first car, plaintiff walked toward the second, and, while so doing, slipped on a piece of potato car liner paper. His right foot went out from under him, then his left foot, and he landed on the back of his head and neck.

Plaintiff was hospitalized, and x-rays disclosed a hair line stellate fracture at the back of the skull. Because of plaintiff's continuing complaints, a neurological surgeon was called in, and examinations disclosed a hematoma with a contra coup contusion of the brain. Tests also revealed an aneurysm in the brain, which is a congenital and potentially lethal defect. An operation was performed to ligate or close off the aneurysm. Evidence showed that plaintiff's fall did not cause the aneurysm and did not aggravate it.

Plaintiff returned to work on September 16, 1965, still complaining of pain, and he continued to receive treatment. His doctor diagnosed his condition as a traumatic brain contusion, fracture of the skull, joint strain of the neck and secondary changes of the left temporal mandibular joint with blood vessel irritation, causing a weakness of the right arm and right leg amounting to a mild paresis, which is a state of paralysis.


With regard to the first issue presented here — whether the court below erred in denying defendants' motion for a judgment notwithstanding the verdict — defendants argue that plaintiff failed to prove any negligence on defendants' part which caused, in whole or in part, plaintiff's injuries. If that be the case, defendants continue, then the trial court committed error in failing to grant a judgment notwithstanding the verdict of the jury.

• 1 In Rogers v. Missouri Pacific R.R. Co. (1957), 352 U.S. 500, 1 L.Ed.2d 493, 77 S.Ct. 443, an action also brought under the Federal Employers' Liability Act, the Supreme Court had occasion to consider numerous aspects of litigation spawned by employees injured on the job under F.E.L.A., and, in particular, the test of a jury case under the Act. In holding that the test is whether the proofs justify with reason the conclusion that employer negligence played any part, even ...

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