Devine v. Chicago, Rock Island & Pacific Railway Co.

Mr. Justice S caul ah

delivered the opinion of the

court.

The defendant first contends that the Federal Employers’ Liability Act of 1908 is not applicable to the facts in this case. Section 1 of said act provides : “That every common carrier by railroad, while engaged in commerce between any of the several States * * * shall be liable in damages to any person suffering injury, while he is employed by such carrier in such commerce or in case of the death of such employee, to his or her personal representative for the benefit of the surviving widow or husband or child of such employee; * * * for such injury or death resulting in whole or in part from the negligence of any of the officers, agents or employees of such carrier.” To bring the present case within the application of this act it was necessary for the plaintiff to show that the deceased was killed while the defendant Railroad Company was engaged in interstate commerce and while deceased was employed in such commerce. Pederson v. Delaware, L. & W. R. Co., 229 U. S. 146. "W e have carefully examined the evidence bearing upon this branch of the case, and we are satisfied that the plaintiff made a prima facie showing that the case was one that came within the provisions of the act in question. Defendant argues at length that the evidence of the plaintiff on this subject was of a very weak character and it complains that while there were records by which the origin and the destination of the cars in the train in question could be conclusively proven, the plaintiff did not see fit to introduce these in evidence. We know of no rule of law that required the plaintiff to introduce these records in evidence. The plaintiff had the right to prove this branch of his case, like any cither branch, by direct or circumstantial evidence. The records referred to by the defendant were in its possession, and the fact that it did not produce them in rebuttal of the evidence introduced by the plaintiff greatly strengthened the plaintiff’s proof on this branch of the case. “Weak evidence becomes strong by the neglect of .the party against whom it is put in, in not showing by means within the easy control of that party, that the conclusion drawn from such evidence is untrue. Great Western R. R. Co. v. Bacon, 30 Ill. 348; Germania Fire Ins. Co. v. Klewer, 129 Ill. 559 [599].” Pittsburgh, Ft. W. & C. Ry. Co. v. Callaghan, 50 Ill. App. 676. While the defendant hotly contested its liability in the ease, it saw fit not to introduce the records bearing on the question of the origin and the destination of the cars in the train in question. The presumption to be drawn from this fact is obvious.

The defendant next claims that “the court erred in holding that there were any facts in evidence from which the negligence of the engineer could be reasonably and legitimately inferred.” On the trial the defendant’s theory of the accident was that the train was moving slowly and that immediately prior to the stopping of the same the deceased had signalled for the train to stop, so that he or others of the train crew might “cut in the air” on the twenty-two cars that had just been coupled to the train; that the engineer, acting on the signal to stop, stopped the train in an ordinary and proper way; that the deceased knew that it was customary to stop the train at the place in question to permit him and other members of the train crew to “cut in the air” on cars not connected up with the air-brake system; that if there was jarring and bumping of any cars when the train was stopped, that caused the deceased to fall from the car on which he was standing, it was limited to the rear twenty-two cars that had not been “ cut in on the air ’ ’; and it was not caused by the manner in which the train was stopped by the engineer, but it was due entirely to the fact that no air had been “cut in” on these cars. The theory of the plaintiff was that the train (moving at the rate of five or six miles an hour) had just passed the switch that led from the Pan Handle yards to the track of the defendant Company; that the rear switchman was closing the said switch; that the deceased, standing on one of the cars, gave a signal to the engineer to shut off steam and to allow the train to drift along so that the rear switchman would have time to close the switch and to run after and catch the train; that it was not customary tp stop the train at the place in question for the purpose of “cutting in air” on the cars; that the stop was an unexpected one and it was made with most extraordinary and unusual force and violence. In our opinion, the weight of the evidence sustains the theory of the plaintiff. We certainly cannot hold, as defendant requests us to do in its present contention, that “the court erred in holding that there were any facts in evidence from which the negligence of the engineer could be reasonably and legitimately inferred.”

The defendant next contends that the accident was brought about “by one of the ordinary risks, hazards and dangers of the employment of the deceased. ’ ’ This contention is necessarily based upon the assumption that the negligence charged in the declaration was not proven. If our conclusion that the accident was caused by the negligence of the engineer is justified by the proof, it logically follows that there is no merit in the present contention. In a case like the one before us, the fellow-servant doctrine does not apply (Mondou v. New York, N. H. & H. R. Co., 223 U. S. 1), and the defendant is chargeable with the negligence of the engineer. The deceased did not assume the risk or danger occasioned through the negligence of the engineer, and such risk or danger could not be termed one of the ordinary risks or dangers of the employment of the deceased.

The defendant next contends that the court erred in giving to the jury, on behalf of the plaintiff, the following instruction: ‘ ‘ The court instructs the jury that prior to and on the 20th day of June, 1910, there was a certain act of Congress in full force and effect, which provided, among other things, as follows: ‘That every common carrier by railroad, while engaged in commerce between any of the several States, shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, or, in case of the death of such employe, to his or her personal representative for the benefit of the surviving widow or husband or children of such employe, for such injury or death resulting in whole or in part from the negligence of any of the officers, agents or employes of such carrier.’ Said act also provides: ‘That any and all actions hereafter brought against any such common carrier by railroad under or by virtue of any of the provisions of this act to recover damages for personal injuries to an employe, or where such injuries have resulted in his death, the fact that the employe may have been guilty of contributory negligence shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employe.’ ” The defendant contends that this instruction authorized the jury to find a verdict for the plaintiff if the jury found, from the evidence, that the death of the deceased resulted from any negligence of any officers, agents or employes of the defendant, whereas to warrant a verdict of guilty it was necessary for the plaintiff to prove that the defendant was guilty of the specific negligence charged in the declaration, viz., that the engineer caused the train to stop with great and unusual suddenness, force and violence. We do not think that there is any merit in this contention. The part of the instruction that is criticised does not direct a verdict,—it merely gives the law upon which the claim of the plaintiff is predicated. The Supreme Court of this State has frequently said that it is not error to lay down the law in the language of the law itself, unless there is something in the instruction calculated to mislead the jury in the application of the law to the particular case. People v. McIntosh, 242 Ill. 606; People v. Cotton, 250 Ill. 343. It is a common practice to give instructions of this character in cases of this kind, and whén all of the given instructions in this case are considered together, it is clear that the instruction complained of (one that does not direct a verdict) could not have prejudiced the defendant in this case. One of the instructions given to the jury contains the following language: 1 ‘ The instructions given to the jury are and constitute one connected body and series, and should be so regarded and treated by the jury; that is to say, they should apply them to the facts as a whole and not detach or separate any one instruction from any or either of the others.” The court gave to the jury, at the instance of the defendant, the following instruction: “The defendant is not liable for any negligence except that charged in the declaration.” Another instruction, given at the instance of the defendant, contains the following language: “Before the plaintiff can recover he must prove first that the defendant was guilty of the negligence charged against it in the declaration.” Still another of defendant’s instructions contains the following language: “The burden of proof is on the plaintiff to show what degree of care Mason was exercising for Ms own safety. If plaintiff proves that Mason was not negligent at all and that the negligence of the defendant charged in the declaration was the proximate cause of Mason’s injury, then you should award, etc.” The defendant claims that the jury might have understood from the instruction in question, as applied to the evidence in the case, that the law was, that if they believed from the evidence that any employe of the defendant was negligént in not coupling up the air in the entire train before it went out on the main line, or in not providing a means for coupling in the air before it started out, and that the deceased was killed by reason thereof, that then the defendant was liable. We find nothing in the record to warrant us in finding that the jury could have been so misled by the instruction. We find that the jury were given, at the instance of the defendant, the following instruction: “The court instructs you that under the evidence in this case the defendant was not required to have the air coupled up on the movement being made at the time Mason was injured.” The defendant contends that even if it was proper for the court to give an instruction in the language of the act, it was not proper to pick out particular portions of the act and to omit other portions. Defendant complains that the language in section 4 should have been added to the instruction. Section 4 of the act reads as follows: “Section 4. That in any action brought against any common carrier under or by virtue of any of the provisions of this act, to recover damages for injuries to, or the death of, any of its employes, such employe shall not be held to have assumed the risks of his employment in any case where the violation by such common carrier of any statute enacted for the safety of employes contributed to the injury or death of such employe.” The case of the plaintiff was not predicated upon section 4, and it would not have been proper to have added the said section to the instruction. Had section 4 been added to the instruction, the defendant might, with some warrant, have argued that the giving of the same was misleading and improper.

The defendant next contends that the court erred in entering judgment for $15,000. The position of the defendant seems to be that even if it be conceded that Congress had the power to fix the amount that might be recovered in a case of this character, that it has not done so, and that, therefore, the law of this State must govern on the question of damages, and that in no event could a larger amount be recovered in this case than $10,000, the maximum amount allowed in this State in a case of this character. 'There is no merit in this contention. The plaintiff’s action is predicated upon the Federal Employers’ Liability Act of 1908, and we have already held that the facts of the case bring it within the act. The provisions of this act supersede all State laws upon the subject. Mondou v. New York N. H. & H. R. Co., 223 U. S. 1; Missouri K. & T. Ry. Co. v. Wulf, 226 U. S. 570; Michigan Cent. R. Co. v. Vreeland, 227 U. S. 59; St. Louis, S. F. & T. R. Co. v. Seale, 229 U. S. 156. The Federal Act in question limits the right of recovery in this case to the pecuniary damages actually sustained by the next of kin of the deceased (Michigan Cent. R. Co. v. Vreeland, 227 U. S. 59), but it does not place any arbitrary limit on the amount that may be recovered. Plainly it would seem to be the intention of the act that recovery may be had for the full pecuniary damages actually sustained by the next of kin.

The defendant next contends that the damages awarded are excessive. We have carefully examined the evidence bearing upon this question, and we cannot say that the finding of the jury as to the amount of damages is manifestly against the weight of the evidence.

Finding no error in this record, the judgment of the Circuit Court is affirmed.

Affirmed.