*1 Menzimer, appellants; W. L. for Maynard Maynard, counsel; appellee; Conde, F. & James Dale published Maynard, Per Not to be F. curiam. in full. of counsel. 22, 1953; publication Opinion September filed released for October Harsh, Terminal Wayne Plaintiff-Appellee, Illinois Railroad Company, Defendant-Appellant.
Term No. 53-F-12.
Opinion Rehearing 28, August 17, 1953. denied October 1953. for Released filed publication October of Granite and City, Fred P. Schuman, Burroughs, Simpson & for Edwardsville, appel- Burroughs, of counsel. lant; Alton, Harold G. Talley, City, B. of Granite appellee. for Chapman, Morris Presiding Justice Bardens delivered the opinion Mr. the court. filed his the circuit complaint court of Plaintiff a violation by Madison defendant of county alleging Act and personal Boiler in- Inspection the Federal therefrom. Defendant’s motions for a jury resulting and directed verdict at the close of evidence and the close of all the evidence were overruled at upon jury returned a in the sum of $12,000 verdict judgment which Defendant’s motions was entered. judgment n. and for a new trial were likewise o. v. appeal overruled and this followed. operates an electric interurban line from
Defendant poles Trolley to St. Missouri. Illinois, Louis, Alton, power line in an overhead the normal with connect automatically and are retracted to horizontal fashion pole top slip position of the car if the should off pole power line. The mechanism which the is alleged called a and retracted is “retriever” its thus operate properly is the failure to basis of composed The retriever is an intricate action. device powerful springs that are wound and set as the rope pulled put trolley-pole pole out to in con power tact with the power line. Then if contact with the rope suddenly jerked by line is broken and the trolley springing free, retriever is activated rope automatically quickly causes the to be bringing pole rewound into the retriever, down top to the ends of the of the car. A retriever is located at both
trolley pole trolley car to control the at requires pull that end. To “set” a retriever a careful ing trolley rope out of the retriever until the springs fully are wound and a catch takes keeping springs tightly Any hold, jerk wound. trolley of the line as the is then allowed to ascend *4 power make contact with the or a line, failure of the spring catch to hold the tension, will in result the being quickly line powerfully and rewound. April plaintiff
On 25, 1950, was the conductor on the first car of a pulling three-car train into the St. Louis depot two to four minutes late. As the cars crossed a switch, trolley the jumped rear car he to Plaintiff
track and climbed out reset it. testi- pulled rope fied in usual fashion that he out the with from retriever; and set the then the tension springs rope, permitted (slide retriever off the he it to slowly through pole bring his into con- hands power suddenly tact with line; retriever operated, jerking rears, between two injuring his back. alleges
Plaintiff that the and defective keep that the defendant’s failure to the said retriever in a safe condition for his use constituted violation Inspection (45 of the Federal Boiler USCA, Act sec. 23). paragraph Safety part Appliance This Equipment and Act and reads as follows: any permit “It shall be unlawful for carrier or to use any to be used on its line locomotive unless said loco- parts appurte- motive, boiler, its and all and tender, proper oper- nances are in thereof condition and safe to put, ate the service to which same that the are. may employed same be in the active service of such peril unnecessary carrier without life or and limb, .to parts unless said locomotive, boiler, tender, its and all appurtenances inspected thereof have been from provisions time to time in accordance with the 29, sections 30, and 32 of this title and are able to prescribed may withstand such test or tests as be regulations provided the rules and hereinafter for.” paragraph frequently This has been construed imposes clearly liability an absolute on the rail injuries employees proximately road for caused by equipment. liability paragraph defective under negligence 23 is not based on. and the railroad will showing therefore not be excused of care on its part contributory negligence employee’s part. or on continuing, duty A equipment absolute to maintain puts position a safe condition the railroad in the *5 falling category. injuries in this Moore an insurer Chesapeake Co., 205; R. Williams R. 291 U. S. & Ohio Ry. Co., Ill. 84 N. E. N. v. Y. Central legal raise suf- several motions The defendant’s standing plaintiff’s ficiency alone, of of proof proof defective- 23, of of of violation of section causing question proximately in of retriever ness injuries, plaintiff’s weight of evidence said light of when in the all the evidence. considered perfect a in condition evidence shows that retriever trolley pole jerk becomes with a retrieves disengaged when power normal that is its line; from the care is re- It is clear that considerable function. also quired may retrieve as be caused to or retriever pole rope played the line. out raise the is plaintiff, including that it testified witnesses, Various happened frequently trolley process resetting in poles. any af not include
Plaintiff’s evidence does specific a in firmative, evidence of defect question. any negate or mis It fault does, however, handling by therefore, and, of the retriever testimony argues inferentially of the that happening a evidences defect the incident testimony, own mechanism. In addition to engineer a his that in mechanical testified on behalf opinion his a the cir retriever which retrieved under by plaintiff in cer cumstances described was defective specific testing tain this evidence under details. In motion for directed the issues raised defendant’s it, we are consider and reasonable verdict bound to leading does therefrom, inferences as true. This necessary any mean case existence of evi dentiary wholly by argued facts can he evidence - presumption event, occurrence an or that a forceful or for evi- inference fact substitute sufficient
dence of said fact. However, in the case, the instant liability upon issue of turns the existence of a defect parties equal ain mechanism to which the did have access. Plaintiff’s evidence of the created an incident inference was producing such In defect. our the burden view, properly by on defendant to refute this inference allegedly defective in retriever court presenting specific or operating evidence as its to con question. dition at the time This it did not do. In specific plaintiff’s absence of such rebuttal, evi probative dence taken as true has sufficient force to require jury. to issues be submitted to a Robson Pennsylvania App. R. Co., Ill. N. 557, 86 E.
Defendant further contends that the verdict finding jury Inspec violation of the Boiler contrary weight to the manifest Act is the evi tion dence. In
general, may plaintiff’s it be said that evi injury resulting allegedly from dence of defective many particulars, was retriever contradicted but point plaintiff’s these contradictions went to the credibility by and were resolved in his favor. respect alleged with However, to existence of the undisputed certain defect, facts were established the evidence. Plaintiff himself testified that before the run back to Alton started, he saw the motor pole plaintiff man set that had left in the retrieved position top under the hook on car, that he , presumed the retriever was at reset time. Fur on
ther, the cross-examination of the en mechanical gineer gave opinion who evidence on be possible half as to defects in the retriever which would unexpectedly, cause it to retrieve it was stated that prevent these same defects would the retriever from operating normally at all. Yet the evidence shows that operated normally the retriever before and after the complained In for the to incident of. order trolley pole jumped retrieved the when it have depot, going good line been to must have work ing again, when order; the motorman reset the re pole placed triever and on the hook before the operated trip normally. to return the retriever Alton, gathered These to be from facts, appear in our more to the view, favorable defendant plaintiff. than to the The evidence further showed that happened hap what on this occasion had pened to him others from time to time without having the retriever been defective. The burden rested plaintiff to show that on occasion a this defect ex *7 proximately injury. isted and that it caused his With respect alleged to the all is clear from the defect, proof evidence that this burden of was not satisfied. arising The inference of a defect from cir manifestly outweighed by cumstantial evidence is the showing normally that the retriever worked before and after the and incident the other in evidence the record. It our is, therefore, conclusion from all jury finding the that the evidence aof of violation the Inspection clearly Boiler against Act is the manifest weight of the evidence. Robertson v. Louisville & N. App. Co., R. 327 Ill. 63 44, N. E. 608.
Since this matter must be remanded to the trial jury’s finding court for a new trial because the Inspection of a violation of the Boiler Act is mani festly against weight of we need not grounds discuss in full other of defendant’s contention that guide it is entitled to a new trial. As a on the might retrial of this say cause, however, we that de argument fendant’s per that the trial court erred in mitting expert testify ground to on that testimony his experiment was based on an is without expert’s testimony merit. concerning opera- The
279 a based on his mechanism of tion and designed disassembling to in of another retriever workings of this intricate mecha form the of the opinion give foundation to his evidence. nism and On knowledge gained disassembling from of his the basis opinion gave he as to what defect his retriever, operate question might caused retriever in to have by plaintiff. significance in the fashion described lay physical facts of this foundation evidence opinions based conclusions described, but nature not in the thereon. the evidence was Therefore, experiment dissimilarity of of an conditions injury at the disassembling and at the of the witness’s time time render testi retriever did not his mony incompetent. urged by
Another error defendant was denying the trial court praying defendant’s motion erred requiring plaintiff for an him order submit physical provided by self for examination, as Rule 35 motion, Federal In order sustain such Rules. necessarily it must rule be concluded that federal practice extends to a case based on a federal statute arising in a state since law denies court of Illinois Chicago, physical right of R. I. & such examination. Ry. E. Ill. N. Benson, Rule P. v. Co. Procedure limits 1 of the Federal Rules Civil *8 “procedure scope in the district courts of said rules to granting to state courts The of the States.” United jurisdiction L. A. cases does F. E. of concurrent procedural supplant require that a federal rule It be concluded under must, therefore, law of a State. Supreme that the Illinois the rule enunciated Court physical required plaintiff to a to submit a cannot be pending courts in our state in a matter examination though a federal statute. arises under the matter even
Finally, urges giving that the defendant plaintiff re an instruction on behalf of and the give an fusal to instruction defendant’s behalf con stituted error. Defendant’s offered instruction was: jury happen “The instructs the that the mere Court alleged ing presumption raises occurrence no ques of the violation of the section of the statute tion.” type
This of instruction has often been criticized as misleading confusing though correctly states Chicago the law. West R. Petters, St. v.Co. 196 Ill. Cummings, App. Elmore 298; 321 Ill. 234, 52 N. E. Its fault lies the fact a that series every similar instructions could isolate element of a standing case conclude that, that alone, support recovery. element could not a Each such in struction would be correct; but clearer and fairer presentation jury law for the lies in an affirma plaintiff required prove tive statement of what a to recover. The trial court is
correctly in refused such any giving struction. Nor do we find error in the referring instruction to “the defective con setting as dition, aforesaid,” of the retriever without specifically alleged forth defect. heard capable the instructions as a series and were of re membering prior “as aforesaid” referred to a allegation of defectiveness and not to an established previously or recited defect. have We stated that required prove a defect in the retriever. necessity spe We see no that such defect be described cifically complaint in or an instruction. specified,
For the reasons the cause re versed and remanded for new trial. Reversed and remanded a new trial. and Culbertson concur.
Scheineman page.]
[See next *9 Opinion Supplement on Denial of Petition to Reheaeing for petition rehearing for contests, the On power reviewing the of a court to consider time, first weight the in F. A. cases and evidence E. L. to judgment against as the manifest and remand a reverse weight that once of the evidence. It contended such there is sufficient evidence determines that court jury, support submitting a it the issues to has to record respect weighing its function with exhausted judgment against cases evidence. Numerous are upon, principally, Kurn, v. and relied Lavender cited Ellis v. Union 916, 740; 90 L. Ed. 66 S. Ct. 645, U. 327 S. Co., 649, 572, 91 L. Ed. 67 S. R. 329 U. S. Ct. Pacific Railway Co., Pekin& Union Tennant v. Peoria 321 598; 409; L. S. Ct. Williams New 520, 88 Ed. 64 29, S.U. (2d) 399; R. Ill. 84 N. E. Nick Co., Cent. 402 York App. Co., & R. Ill. E. 202, 106 N. v. Baltimore O. ell questions deal All of cases with the these notwithstanding judgments verdicts or directed the reversal and remandment on and not with verdicts against-the weight ground manifest of a verdict evidence. opinions language ap-
Standing from these alone, plaintiff’s argument. pears to lend force However, entirety, appar- considering in its each case it becomes support plaintiff’s position. they do In ent that reviewing virtually all of them the court does fact carefully detail and consider evidence. Where reviewing weighed trial court or court felt the was conflicting or considered inferences as true already rejected, jury the lower had which court’s taking disap- case from action proved. opinion of in the court case at bar *10 therefrom,
jury highly but that these contradicted credibility issues relate witnesses and were finding, decided favor. Such therefore, was disturbed. On issue of the exist- appliance, weigh this ence of a defective conflicting court did not credibility consider the of the var- witnesses, ious nor follow what it considered a more only undisputed inference. It considered reasonable suscep- facts circumstances. These facts were not varying tible of inferences but constituted a manifest opposition weight evidence in to the claim of a defec- tive or unsafe retriever. authority,
Plaintiff has cited no and we find reviewing which none, removes court’s historical power to reverse and remand a case for new trial when against weight the verdict to be believes the manifest of the The cases cited evidence. do illustrate the re reviewing luctance courts to disturb on findings credibility are issues that based of witnesses. We find in authorities, however, no such these restrictive by plaintiff. urged as rule law rehearing
Petition denied. P. J. J., concur. Scheineman, Culbertson, Silver Cross v. John M. Hospital, Appellee, Boyden,
Appellant. 10,686.
Gen. No. notes occurring of an the evidence incident and in- fact