APPEAL from the Circuit Court of Madison County; the Hon. A.A.
MATOESIAN, Judge, presiding.
MR. JUSTICE KARNS DELIVERED THE OPINION OF THE COURT:
John Schutzenhofer brought this action to recover damages for injuries received during the course of his employment as a switchman under the Federal Safety Appliance Act (45 U.S.C. § 1 et seq. (1976)) and the Federal Employers' Liability Act (45 U.S.C. § 51 et seq. (1976)). Plaintiff's employer, Granite City Steel Company, defendant, appeals from the judgment entered on the general verdict in plaintiff's favor after a jury trial in the Circuit Court of Madison County.
On appeal, defendant argues that under the facts, which are not in substantial dispute, it is not, as a matter of law, a common carrier by rail engaged in interstate commerce within the meaning of the Safety Appliance Act (45 U.S.C. § 1 (1976)) and the Employers' Liability Act (45 U.S.C. § 51 (1976)). Plaintiff moved for partial summary judgment in the trial court on the question of defendant's status as a common carrier by rail in interstate commerce after defendant had answered denying that it was a common carrier by rail (Ill. Rev. Stat. 1979, ch. 110, par. 57(1)). Defendant thereafter filed an affirmative defense alleging that the exclusive remedy of plaintiff was the Illinois Workmen's Compensation Act (Ill. Rev. Stat. 1975, ch. 48, par. 138.5) as the alleged injuries of plaintiff were received while he was an employee of defendant who was not a common carrier by rail engaged in interstate commerce at the time of the occurrence in question. The trial court ruled in favor of the plaintiff and found defendant to be a common carrier engaged in interstate commerce and granted summary judgment in favor of plaintiff on that issue, thereby removing it from the trial of the case.
Defendant is engaged in the manufacture of steel at its industrial complex in Granite City. It owns 14 locomotives and 509 railroad cars which travel over approximately 55 miles of track. It employs 251 people to operate and maintain the railroad equipment and tracks. Plaintiff was employed by defendant as a switchman and on September 1, 1975, was the conductor of the train when he was injured. The evidence at trial was that plaintiff's switch engine moved ladle cars of molten pig iron from the blast furnace located on the south side of Illinois Route 203 in Granite City to the basic oxygen furnace on the north side of Illinois Route 203. Plaintiff was in the process of supervising the movement of empty ladle cars out of the basic oxygen furnace when a stirrup on the ladle car on which plaintiff stepped broke causing plaintiff to fall to the ground resulting in an injury to his back.
In addition to the movement of ladle cars on which plaintiff works, which do not travel outside the boundaries of defendant's plant except to cross Route 203, defendant currently performs switching operations for three other industries and has performed switching services for other industries either now defunct or not presently in need of defendant's services. Two of the other industries, Lipsett Steel Products, Inc., a subsidiary of Luria Bros. Co., Inc., and International Mill Service, Inc. (hereinafter I.M.S.), lease their property from defendant and are located within defendant's plant yard. The third business, Air Products and Chemicals (Air Products), is located immediately adjacent to defendant's property.
The railroad traffic between defendant and the three satellite industries has been governed by a series of agreements among defendant, the satellite industries and two railroads, Terminal Railroad Association and Illinois Terminal Railroad. One set of agreements executed in 1957 provided that defendant was to act as the agent of the railroads in switching cars from an interchange point at McCambridge and Edwardsville Road, referred to as Block F yard, onto the sidings of the three satellite industries. The tracks at the Block F yard are maintained by the railroads on property leased from defendant. For this service defendant was compensated at the rate of $3.75 per loaded car. These agreements were terminated orally on March 1, 1975, the agreements later being reduced to writing. The new agreements provided that defendant was no longer to act as the agent for the railroads and was not to receive any compensation for switching cars.
Defendant and the Terminal Railroad also entered into a lease on August 5, 1965, which provided that defendant would switch cars over tracks on the leased premises owned by the Illinois Terminal Railroad for industries located adjacent to 16th Street between Madison Avenue and State Street in Granite City. Defendant paid an annual rent of $1,081.37 to the Terminal Railroad for use of the leased premises and received $4.50 per loaded car switched onto the above described property. On March 26, 1975, the lease was amended to relieve defendant of the obligation to provide switching services to industries adjacent to 16th Street. The amendment provided that the defendant was to "[u]se said premises and improvements for the purpose of switching traffic of the Lessee [Granite City Steel] * * *." Defendant was not to receive any compensation from the Terminal Railroad under the lease as amended.
Railroad traffic is also regulated by agreements among defendant and Luria Brothers, I.M.S. and Air Products. The substance of each agreement provided that in switching cars from Block F yard onto the industries' sidings defendant was acting as a private carrier and no compensation was to be received for performing switching services. Each agreement also incorporated the St. Louis-East St. Louis Terminal Lines Switch Tariff 1-F (ICC 5187), which provided that the obligation of the Terminal Railroad and Illinois Terminal Railroad was limited to the delivery and pickup of railroad cars at the Block F yard.
Other than the above agreements, railroad traffic of defendant is not regulated. Granite City Steel does not operate pursuant to a certificate of public convenience and necessity granted by the Interstate Commerce Commission or Illinois Commerce Commission; it is not regulated by any governmental agency, nor does it publish a tariff.
On the basis of the above facts the trial court found as a matter of law defendant to be operating as a common carrier by rail in interstate commerce. After the jury's verdict in favor of the plaintiff, defendant did not move for a new trial but did request that judgment be entered notwithstanding the verdict.
Plaintiff has filed a motion to dismiss this appeal which we have taken with the case. He argues that the defendant has not preserved for review the question it asks this court to decide, that is, whether defendant is entitled to judgment in this court as a matter of law.
In the trial court defendant took the position that the question of its status as a common carrier by rail engaged in interstate commerce was one of fact for the jury's determination, which it would be under disputed facts. (Avance v. Thompson (1944), 387 Ill. 77, 55 N.E.2d 57.) It filed no countermotion for summary judgment, but resisted plaintiff's motion on the ground that there was a bona fide question of fact as to defendant's status.
After partial summary judgment was entered in plaintiff's favor, the question of defendant's status as a common carrier was removed from the trial of the lawsuit. The jury resolved the remaining issues in plaintiff's favor.
After the jury verdict in favor of plaintiff, the defendant did not file a motion for a new trial. It did file a motion for judgment notwithstanding the verdict alleging that the trial court erred in granting partial summary judgment on behalf of plaintiff as there were genuine issues of fact concerning defendant's status as a common carrier engaged in interstate commerce. The motion stated that it had denied the allegation in plaintiff's complaint that it was so engaged in its answer. It further alleged that it was entitled to summary judgment on this question, although, as we have noted, it filed no motion for summary judgment. The motion further alleged as error the denial of its motion for a directed verdict on the question of the status ...