194 Ill. App. 491 | Ill. App. Ct. | 1915
delivered the opinion of the court.
Plaintiff, a conductor of one of defendant’s freight trains, was severely injured while in the discharge of his duties. Upon suit alleging negligence of the defendant, he had judgment for $45,000, from which defendant has appealed.
Two grounds of liability are presented: (1) Negligent construction of defendant’s tracks, the main and side tracks being placed unusually close to each other; and (2) defendant, engaged in interstate commerce, violated the Federal statute by requiring plaintiff to be on duty for a longer period than sixteen consecutive hours.
Defendant has a line running southerly and easterly from Cleveland, Ohio, through Akron, where it joins what may be called the “through line” from Chicago to Pittsburg. Some distance westerly of Akron on this through line is Chicago Junction, and easterly of Akron is Newcastle Junction, and the division between these points is called the Newcastle division. The line from Akron north to Cleveland is called the Cleveland division. Plaintiff usually worked on the Newcastle division. The accident occurred at Peninsula, a station on the Cleveland division a few miles north of Akron. On the Newcastle division, plaintiff says, the usual distance between cars standing on parallel tracks was about' four feet or more, and that he had never noticed this space to be less than three and one-half feet in width. At Peninsula, on the Cleveland division, is a single main track and two sidings east of it. The Ohio floods in the spring of 1913 had washed out the ballast from these tracks and they had been relaid, but so close together that there would be a clearance of only one or two feet between cars on parallel tracks. A brakeman testified that to pass between an engine on one track and a car on the other it-was necessary to turn sideways. Plaintiff had not noticed the distance between cars on any division other than the Newcastle division. He had run as conductor on a train through Peninsula on only one trip, but had not been there after the flood and did not know anything about the nearness of the tracks to each other at Peninsula.
About two o’clock in the morning of August 23,1913, plaintiff was in charge of a train of forty cars arriving in Peninsula. There was a “hot box” on the east side of the eighth car from the caboose, and plaintiff undertook to set this car out of the train, and for that purpose ordered one of the engines hauling the train to back north on the side track parallel to the main line and along the east side of his train. He stood upon the footboard ¿t the rear of the engine’s tender and rode on the end of the footboard next to his train as the engine backed northerly on the siding towards the car with the “hot box.” He carried a lantern, but on account of the darkness did not observe any unusual distance or lack of space between the engine and the train. Before the engine reached the car the power had been shut off and it was “drifting,” that is, going about five or six miles an hour, or what is described as an ordinary walk. As the engine came opposite the car with the. “hot box,” plaintiff stepped off the foot-board, apparently with the intention of uncoupling this car. The engineer saw plaintiff’s lantern strike the car of the adjacent train and go out. Thinking there was something wrong he stopped the engine, and plaintiff was found lying just in front of the engine. Plaintiff has no recollection, of what happened after he stepped from the footboard and did not regain consciousness for nearly three days.
The conclusion is not only reasonable but obvious, that when plaintiff stepped off his engine he was struck by the nearby car and either thrown under the engine or squeezed between it and the car. The faulty construction of the main line and the siding, with reference to the distance between them, was clearly the cause of the accident. A similar situation was characterized in the opinion .in Voorhees v. Lake Shore & M. S. Ry. Co., 193 Pa. St. 115, as a “dangerous mantrap.” The defendant was negligent in permitting its tracks to be so close together that employees could not with reasonable safety pass between cars on adjacent tracks. Plaintiff was experienced and knew that the usual clearance between cars was sufficient for him to step off in safety. He had no reason to think that the space at this point was any less than the usual distance, and the darkness furnished a reasonable excuse for his failure to notice the unusual conditions.,. The evidence as to negligent construction justified the verdict of the jury as to liability.
As we view this case it is hardly necessary to discuss at any length the evidence touching the question of the number of consecutive hours plaintiff was on duty prior to the accident. Whatever may be said as to the period of time commencing at 3:40 p. m. on August 19th, with reference to determining whether plaintiff was “on duty” while traveling “deadhead” to meet the train of which he was to take charge, and as to the period commencing at 3:15 p. m. on August 20th, there was submitted to the jury the question of fact as to the duration of the period of duty commencing at 4:35 p. m. August 21st. The trial court by instructions limited to this period any liability of defendant for violation of the Federal statute. There is disagreement among the witnesses as to when this period of employment ended. Plaintiff says it was at 10 a. m. on August 22nd; this would make the period of duty seventeen hours and twenty-five minutes. The defendant introduced evidence tending to show that the period ended at 8:45 a. m. We cannot say that the jury should not have believed plaintiff’s version of the matter. Plaintiff sufficiently proved the violation of the statute as to this period, and there was sufficient evidence that this produced a condition of exhaustion that contributed to the accident.
There are no reversible errors in the instructions or rulings on evidence.
Are the damages excessive? Plaintiff was a young man twenty-nine years of age, in good health and of great strength and vigor. He was injured Saturday morning and was unconscious until the following Tuesday. His brain was injured, right arm amputated, back broken, vertebrae ont of alignment, cartilage between the vertebrae destroyed; ribs, left clavicle and nose were broken; muscles of the entire right side have since become atrophied; right side of body partially paralyzed; both legs paralyzed; and many other injuries. Plaintiff testified that he constantly suffers excruciating pains. His average earnings as a conductor before the injury were $125 per month. The verdict was for $45,000, which is for an amount larger than is usual in our courts. It cannot be said that it is excessive solely because it is large. The real question is, is it too great compensation to a young, strong man for the experience of being transformed violently into a permanent, helpless physical wreck, with the attendant pain and suffering, past, present and future; also his loss of earnings because of permanent disability? We do not find in the record any appeal by counsel which might have unduly moved the sympathies of the jury. The amount seems to have been arrived at as the result of serious and fair minded consideration. We are not disposed to say in this instance that our judgment is better as to the amount of compensation than is that of the jury. No convincing reason appears to warrant a conclusion that the amount is excessive.
For the reasons above indicated the judgment is affirmed.
'Affirmed.