Armstrong v. C. W. I. R. R. Co.

Hazel Armstrong, administratrix of the estate of George J. Armstrong, deceased, brought suit in the superior court of Cook county against the Chicago and Western Indiana Railroad Company (hereinafter referred to as the C. W. I. R. R. Co.) and the Chicago and Eastern Illinois Railway Company, (hereinafter designated as the C. E. I. Ry. Co.,) under the Federal Employers' Liability act, to recover damages for the death of Armstrong. A jury trial resulted in a verdict and judgment for $30,000 in favor of plaintiff. Upon an appeal by defendants to the Appellate Court for the First District the judgment was affirmed. The cause comes to this court by certiorari.

The declaration contains three counts. The first one charges that on August 15, 1928, defendants were operating various lines of railroad and were engaged in interstate commerce; that Armstrong was employed by the C. E. I. Ry. Co. in interstate commerce, as a switchman and conductor; that the C. W. I. R. R. Co. had for a long time permitted the C. E. I. Ry. Co. to operate its cars, engines and trains over and upon the tracks in the yards owned by the C. W. I. R. R. Co.; that it was the duty of defendants to furnish Armstrong a reasonably safe place in which to work, but they negligently permitted certain unlighted freight cars to be in close or dangerous proximity to the lead or running track on which Armstrong was working, all of which was known to the defendants. A consequent injury to Armstrong is averred in said count. The second count is similar to the first. The third count charges that the C. W. I. R. R. Co. used the yard in question for storage purposes; that cars in such yard, if not braked, would roll down-hill, fouling the running track; that on the night plaintiff's intestate received his injury cars were negligently permitted to stand on the tracks without the brakes being set; that by reason thereof said cars rolled down-hill and fouled the running track, and that while Armstrong was operating his train it came in contact with said cars, whereby he was injured.

Some time after eleven o'clock on the night of August 14, 1928, plaintiff's intestate, George J. Armstrong, a freight conductor in the employ of the C. E. I. Ry. Co., was accidentally and fatally injured in the Eighty-third street yard of the C. W. I. R. R. Co. in Chicago. The yard contains twenty-three storage tracks, running north and south. There is a running track on the west side paralleling the storage tracks. The main track lies west of and parallels the running track. A lead track connects the running track near its north end at Eightieth street with the storage tracks. At the south end of the yard two lead tracks connect the storage tracks with the running track. One of them connects with storage track No. 8 and joins the running track under a viaduct at Eighty-seventh street. The yard is known as a gravity yard, and the storage tracks, including track No. 8, slope to the south. The running track, switch tracks and yard belong to the C. W. I. R. R. Co., which also maintains and operates an interlocking plant at Eightieth street. There was no yardmaster or yard clerk in charge of the yard at night. For two years prior to his death Armstrong had been making night deliveries of cars to that yard.

It was stipulated on the trial that both sections of Armstrong's train contained interstate freight and interstate cars. On the night of the accident his train was proceeding north on the C. W. I. R. R. Co. main track with twenty-eight freight cars. Sixteen of them were to be delivered to the Belt railroad at Eighty-ninth street and the remaining twelve to the C. W. I. R. R. Co. at its Eighty-third street yard. The train moved across the interlocking plant at Eightieth street onto Belt track No. 2 until all the twenty-eight cars and caboose were north of the switch immediately south of the street and leading into the running track. Responsive to signals from the switch-tender in the employ of the C. W. I. R. R. Co. the train backed south on the running track until the caboose and the sixteen cars which were to be delivered to the Belt road were south of the lead switch. Thereafter each part of Armstrong's train moved on signals from the train crew. The engine and the twelve remaining cars were disconnected from the sixteen cars and pulled north until they cleared the lead switch. They were then backed down the lead track and moved onto track No. 8. The engineer testified that he went back slowly in response to a signal from Armstrong and felt a slight jar upon the engine; that Armstrong was then standing about four car lengths south of the switch and signaled him to continue backing; that they were barely moving at the time; that he continued to back four car lengths and the length of the engine until the north end of the engine was about thirty feet south of the switch connecting with the lead track; that the engine and tender were then cut off from the twelve cars and went north on the lead track to the running track; that he then backed south on that track and connected with the sixteen cars and caboose which had been left standing there; that Armstrong walked west and got onto the rear of the caboose and was the only man on that car; that upon Armstrong's signal, the engine, sixteen cars and caboose backed down the running track at a speed of ten to twelve miles an hour; that the witness felt a collision when the caboose was directly under the viaduct at Eighty-seventh street and immediately applied the air-brake; that Armstrong gave no signal and made no attempt in any way to stop the train; that it was dark and the yards were not lighted; that the weather was fair and a little haze was lying next to the ground; that the south end of a string of fifty-six cars on storage track No. 8 had come out from the north and fouled the running track; that one of such cars and about half the length of another car were squarely on the running track and Armstrong's caboose backed into the second car; that the switches at the north and south ends of the viaduct showed green lights, indicating the running track was clear, and that the caboose and four cars were derailed. Armstrong was injured and never regained consciousness except for a few seconds.

Storage track No. 8 would hold sixty-two cars. The record does not show the capacity of the south lead track, which connects No. 8 with the running track. After the accident there was a space of four car lengths, or about 160 feet, between the north end of the string of fifty-six cars and the south end of the string of twelve cars. It is therefore evident that track No. 8 and the south lead track have a combined capacity more than sufficient to hold the string of fifty-six cars as well as the string comprised of the engine and twelve cars. It is also clear that if the string of fifty-six cars had remained in contact with the twelve cars the running track would not have become fouled.

A witness in the employ of the C. W. I. R. R. Co. at the time of the accident testified that the yard starts downgrade towards the south at Eighty-third street and continues the decline to Eighty-seventh street, where it is pretty low; that he had been in the employ of that company for more than four years, and there was an established custom of braking or anchoring the cars that were placed in the yard and that bulletins were posted to enforce the custom. Two other witnesses who worked for the same railroad at different times testified to the existence of that custom. The chief clerk of the railroad company testified there was no such custom and that no bulletins to that effect were ever issued.

Paragraph 61 of chapter 114 of Cahill's Revised Statutes provides, in part, that all railroad companies incorporated or organized under the laws of this State shall have power to make contracts and arrangements with each other and with railroad corporations of other States for leasing or running their roads or any part thereof. The principle is thoroughly established that where an injury results from the negligent or unlawful operation of a railroad, whether by the owner or by another whom the owner authorizes or permits to use its tracks, both railroad companies are liable to respond in damages to the party injured. (Chicago and Erie Railroad Co. v. Meech,163 Ill. 305; West Chicago Street Railroad Co. v. Horne, 197 id. 250; Chicago and Grand Trunk Railway Co. v. Hart, 209 id. 414;Chicago and Eastern Illinois Railroad Co. v. Schmitz, 211 id. 446.) The lessor and lessee are not only jointly and severally liable to the general public but the rule embraces employees of the lessee, (Chicago and Grand Trunk Railway Co. v. Hart,supra,) and although the relation of lessor and lessee is not shown to exist, the rule applies to cases where the owner permits another railroad to use its tracks. Chicago and EasternIllinois Railroad Co. v. Schmitz, supra.

The evidence shows that the impact was slight. Therefore, if the fifty-six cars on track No. 8 had been properly braked they would not have proceeded down the grade and there would have been a space of more than two car lengths left between the south end of the string and the running track, and the latter track would have remained open and clear. There is no testimony in the record to show that Armstrong knew the cars were not braked or that the running track was fouled. On the contrary, the green lights indicated the track was clear. Under the law the negligence in leaving the cars unbraked is chargeable to both defendants.

Armstrong had the right to assume that defendants had exercised proper care in braking the cars and he did not assume the risk of their negligence in that respect. (Chesapeake andOhio Railroad Co. v. Proffit, 241 U.S. 462.) He was not bound to exercise care to discover danger which resulted from the employer's negligence. (Brant v. Chicago and Alton Railroad Co.294 Ill. 606; Gila Valley Railway Co. v. Hall, 232 U.S. 101;Chesapeake and Ohio Railroad Co. v. Proffit, supra.) Even if it might be said that he was in some degree negligent in not ascertaining whether or not the storage track would hold the twelve cars, the testimony shows that the proximate cause of his injury and death was the failure to properly brake or block the string of fifty-six cars on a down-grade track. Contributory negligence is not a defense under the Federal Employers' Liability act but may be shown in mitigation of damages. (Brant v. Chicago and Alton Railroad Co. supra; S. I. E. R. R. Co. v. Campbell, 241 U.S. 497.) The amount of damages is not in issue here. The trial court correctly refused to direct a verdict for defendants.

The weight of the testimony tends to show there was an established requirement and custom of braking cars on the storage tracks. The failure to do so being the proximate cause of the accident, there was no error in refusing to hold that the verdict is against the manifest weight of the evidence. The third count of the declaration is based upon negligence in permitting the cars to stand unbraked, whereby they rolled down-hill and fouled the running track. The testimony is sufficient to sustain that charge.

There was no eye-witness to Armstrong's injury. Testimony as to his careful habits was properly admitted. (Chicago and AltonRailway Co. v. Wilson, 225 Ill. 50; Greene v. Fish FurnitureCo. 272 id. 148.) A witness was permitted to state his opinion as to whether or not the cars on the storage track would have rolled onto the running track if the brakes had been set. The error, if any, was harmless. The testimony concerned a matter of common knowledge.

Defendants also insist that the trial court erred in allowing two witnesses to testify that they had received orders from the switch-tender at the yards as to placing cars brought into the yards at night. If there was any error in admitting the testimony, defendants invited the same by previously developing, upon cross-examination of another witness, that the switch-tender had nothing to do with the delivery track on which cars were set. Illinois Steel Co. v. Wierzbicky, 206 Ill. 201.

The court did not err in refusing to admit the testimony of a witness as to whose duty it was to keep a lookout for obstructions as the train backed down the running track. No rule or regulation of either company to that effect was introduced in evidence, and the testimony was without a sufficient basis to justify its admission.

The C. E. I. Ry. Co. was engaged in interstate commerce while using the switch yards of the C. W. I. R. R. Co., and under the rule both defendants are liable under the Federal Employers' Liability act. North Carolina Railroad Co. v.Zachary, 232 U.S. 248.

The instructions given on behalf of plaintiff are in harmony with the rules here expressed, and those tendered by defendants and refused are not in conformity with them. There was no error in the giving or refusal of instructions.

The judgment of the Appellate Court is affirmed.

Judgment affirmed.