Wagner v. Chicago & Alton Railroad

Mr. Justice Cooke delivered the opinion of the court: Joseph M. Wagner, the defendant in error, recovered a judgment in the superior court of Cook county against the plaintiff in error, the Chicago and Alton Railroad Company, for $15,000 for injuries alleged to have been sustained by him while employed b)r the Chicago, Burlington and Quincy Railroad Company as a conductor in charge of a switching crew operating an engine and five cars over a track of plaintiff in error. On appeal the Appellate Court for the First District required a remittitur of $387.09 to be entered and the judgment was affirmed as to the remainder. The judgment of tlj'e-Appellate Court has been brought here for review by writ of certiorari. On the trial plaintiff in error tendered a peremptory instruction, which was refused by the court. This action of ' the court is assigned as error, on the ground that the evidence was insufficient to charge plaintiff in error, in law, with actionable negligence or to prove due care on the part of defendant in error. The evidence introduced on the part of the defendant in error tended to prove that he had been in the employ of the Burlington company for twenty years as .a number-taker, car-sealer, car-carder, switchman, timekeeper, and for the last four years as conductor in charge of a switching crew in Chicago. He was directed to take five baggage cars of the Great Northern Railway Company, which had come to Chicago on the Burlington road, and deliver them to the Erie Railroad Company at its Fifty-fifth street yards, three or four miles distant. The cars were assembled, and in the course of the transfer over different roads the engine was pushing them over a Y-track which was a part of plaintiff in error’s Grove street tracks, connecting the tracks of the Pennsylvania and the Chicago and Western Indiana Railroad Companies. This Y-track ran north-east, and the train entered it at its connection with the Pennsylvania tracks, at the south-west end, and it was going north-east to the connection with the Chicago and Western Indiana tracks. There were many tracks at the place, and there was a semaphore post sixteen feet high, four inches square and painted white, standing near the track, which had been erected and was maintained and operated by the Chicago and Western Indiana Railroad Company and was a part of the joint interlocking system. Plaintiff in error did not own. or in any manner control the post or its location, and the post had • been there for twelve years while cars were frequently passing over the tracks. Defendant in error was hanging on the side of the front baggage, car, fifteen feet from the front end, where there was a door set back four or five inches from the side of the car, forming a recess. He was standing with his feet on the truss-iron under the bottom of the door or on a step, below the door and was holding on by perpendicular grab-irons on the sides of the door. There was a controversy whether the track was straight near the semaphore or not, but the evidence for defendant in error "was that it was curved and he was on the inside of the curve. The train moved slowly over the Y -and he could see the semaphore for at least one hundred feet, but he testified that it looked as if there was plenty of room until he came near the post, when he squeezed his body as tight as he could to the car, but he was struck, thrown down and permanently injured. There was room enough between the semaphore and” the end of the car as defendant in error came near the post, but the chord or right line formed by the side of the car, which was sixty-five feet long, intersecting the curve brought the part of the car where defendant in error was hanging nearer to the post. Plaintiff in error had made all repairs on the track for twelve years, employed switchmen, who made a record of all the engines ánd cars passing over the track, and for at least five years had rendered bills to the Burlington company for trackage of its engines and cars, including two engines and five cars in the month of the accident. There was sufficient evidence of plaintiff in error’s ownership- and control of the track, and the semaphore post had been in the same place for many years. If the post was in dangerous proximity to the track it was negligence on the part of plaintiff in error to- continue to- operate trains, or to permit their operation by its licensee, with the dangerous obstruction, and the fact that the post was not erected nor maintained by plaintiff in error would not relieve it from liability. (Illinois Terminal Railroad Co. v. Thompson, 210 Ill. 226; South Side Elevated Railroad Co. v. Nesvig, 214 id. 463.) The evidence tended to prove negligence of plaintiff in error authorizing the submission of that issue to the jury. On the question of the care exercised by defendant in error, he testified the semaphore post was in plain sight for a considerable distance, and it was undisputed that he could have jumped off before reaching it, and it was not necessary for him to ride where he was, as there were other places of safety on the cars. A brakeman with an air-gun or tail-hose was located at the front end of the front car and was able to apply the air and stop the train. There was evidence that defendant in error ought to be somewhere where he could signal the engineer, and the evidence tended to prove that there was room enough between the post and the end of the car, and it was within the fifteen feet that the car came too close to the post. Even if there was an error of judgment on the part of defendant in error, it would depend upon the circumstances whether it amounted .to negligence, since a mistake does not in all cases imply a want of ordinary care. (Chicago and Eastern Illinois Railroad Co. v. O’Connor, 119 Ill. 586; North Chicago Street Railroad Co. v. Dudgeon, 184 id. 477.) The law does not pronounce a party to be either negligent or free from negligence under the conditions shown by the evidence, and the court did not err in submitting the issue to.the jury. The original declaration charged that plaintiff in error and the Burlington company were common carriers and engaged in inter-State commerce; that defendant in error was employed as a switchman in such commerce by the Burlington company; that plaintiff in error owned the track on which the Burlington company, at the invitation and with the knowledge of plaintiff in error, operated its engine and cars, and that defendant in error was injured by a semaphore negligently placed or permitted to be placed alongside the track. Plaintiff in error filed a plea of the general issue and a special plea denying that it owned, possessed or operated the track or the semaphore. Later two additional counts were filed by leave of court in which no mention was made of inter-State commerce, and there was no allegation that the engine or cars were engaged in such commerce but the liability charged was based on common law negligence. To the additional counts the same pleas were filed as before; also a special plea of the Statute of Limitations. The defendant in error’s demurrer to the plea of the Statute of Limitations was sustained and the case was called for trial. In the course of the trial evidence ■was offered on the part of defendant in error tending to prove that the engines and cars were engaged in inter-State commerce, when an objection was interposed on the ground that the question of inter-State commerce had been eliminated and the demurrer to the plea of the Statute of Limitations sustained by agreement. While this stipulation or agreement does not appear in the bill of exceptions, it does satisfactorily appear from what followed when this objection was made that such an agreement had been entered into. The evidence that had been offered on this question was then stricken out by the court and no further evidence relating to inter-State commerce was offered. Whether there was such an agreement or not is not material, so far as the case made by defendant in error in the first instance is concerned. Defendant in error had no cause of action against plaintiff in error under the Federal Employers’ Liability act, as that act applies only where the relation of master and servant exists. To meet the case of defendant in error, the plaintiff in error proved that he was, and had been since 1902, a member of the relief department of the Burlington company; that the employees of that company made monthly contributions to the relief fund; that the company maintained the department and bore the operating expenses, and that he had accepted from the relief fund,.as benefits, the sum of $1231, and that $1349.59 had been paid in his behalf for hospital bills, physicians’ services, and the like. Of these amounts the Burlington company had contributed not to exceed fifteen per cent, or $379.09,—the amount for which the Appellate Court required defendant in error to file a remittitur. In rebuttal defendant in error was permitted to prove that at the time he was injured the engine and cars were engaged in interState commerce. The court gave, at the instance of defendant in error, an instruction that if the jury found plaintiff in error ■ guilty, then, in the assessment of damages, they should not credit the plaintiff in error with what the Burlington relief department had paid to the defendant in error or to any doctor or association on his account. The admission of this evidence in rebuttal and the giving of this instruction are assigned as error. There can be but one satisfaction for an injury, and if defendant in error made a settlement with the Burlington company and released it from further liability, it was a release, also, of plaintiff in error from all liability, as the Burlington company was a joint tort feasor. The contract of defendant in error with the relief department provided that the voluntary acceptance by him of benefits after receiving an injury should operate as a satisfaction of further claims against the employer on account of such injury, and it is the law of this State that such an acceptance, with the knowledge that the contract contained such a provision, operates as a satisfaction and bar to' a subsequent suit for damages. (Eckman v. Chicago, Burlington and Quincy Railroad Co. 169 Ill. 312.) The State law in this regard has been modified, however, by the Federal Employers’ Liability act as to cases where injuries are received by certain employees of an employer engaged in inter-State commerce. The Federal act provides that any contract, rule, regulation or device whatsoever, the purpose or intent of which shall be to enable any common carrier to exempt itself from any liability created by the act, shall to that extent be void, provided that in any action brought against any such common carrier under the act such common carrier may set off any sum it has contributed or paid to any insurance, relief, benefit or indemnity that may have been paid to the injured employee or the person entitled thereto1, on account of the injury or death for which the action is brought. Prior to the passage of the Federal Employers’. Liability act the laws of the several States were determinative of the liability of employers engaged in inter-State commerce, for injuries received by their employees while engaged in such commerce. That was because Congress had not acted and because the subject is one which falls within the police power of the States in the absence of action by Congress. Now that Congress has acted, the laws of the States, in so far as they cover the same field, are superseded by the Federal act. Mondou v. New York, New Haven and Hartford Railroad Co. 223 U. S. 1; Michigan Central Railroad Co. v. Vreeland, 227 id. 59; St. Louis and San Francisco Railway Co. v. Hesterly, 228 id. 702. Whether it had been stipulated, during the presentation of the defendant in error’s case in chief, that the question of inter-State commerce was not in the case is immaterial. That stipulation simply left the case as though no such allegation had been made in the declaration. When plaintiff in error attempted to prove a satisfaction by the payment of benefits by its joint tort feasor, the Burlington company, to defendant in error, it was proper for defendant in error, in rebuttal, to show that no valid release had been given the Burlington company by him. As between defendant in error and the Burlington company the Federal Employers’ Liability act clearly applied, and if, as the United States Supreme Court has repeatedly held, that law supersedes all State laws on the subject, then the release given by defendant in error to the Burlington company was not valid and would not have precluded recovery by him from that company. If it was not valid so far as the Burlington company was concerned, it was clearly invalid as to plaintiff in error and constituted no defense to this action. The evidence in rebuttal was properly admitted. The court erred in giving the instruction complained of, but that error was cured by the remittitur required and entered in the Appellate Court. Complaint is made of alleged improper remarks of counsel for defendant in error, but we perceive nothing in this record that would warrant a reversal of the judgment. The judgment of the Appellate Court is affirmed. Judgment affirmed.