{ "id": 5266440, "name": "Chris Lee Rollins and Elizabeth Rollins, Plaintiffs-Appellants, v. The General American Transportation Corporation, a Corporation; Chicago River and Indiana Railroad Company, a Corporation; and Chicago Great Western Railroad Company, a Corporation, Defendants-Appellees", "name_abbreviation": "Rollins v. General American Transportation Corp.", "decision_date": "1964-02-05", "docket_number": "Gen. No. 49,005", "first_page": "266", "last_page": "275", "citations": [ { "type": "official", "cite": "46 Ill. App. 2d 266" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "126 NE2d 836", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "5 Ill2d 614", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2703925 ], "opinion_index": 0, "case_paths": [ "/ill-2d/5/0614-01" ] }, { "cite": "10 Ill App2d 494", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5157870 ], "pin_cites": [ { "page": "508" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/10/0494-01" ] }, { "cite": "163 NE2d 425", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "18 Ill2d 226", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5329635 ], "pin_cites": [ { "page": "232" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/18/0226-01" ] }, { "cite": "193 NE2d 862", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "86 Ill App 647", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5271829 ], "opinion_index": 0, "case_paths": [ "/ill-app/86/0647-01" ] }, { "cite": "60 NE2d 450", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1954, "opinion_index": 0 }, { "cite": "325 Ill App 392", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 4948592 ], "year": 1954, "pin_cites": [ { "page": "399-400" } ], "opinion_index": 0, "case_paths": [ "/ill-app/325/0392-01" ] }, { "cite": "136 NE 581", "category": "reporters:state_regional", "reporter": "N.E.", "year": 1922, "opinion_index": 0 }, { "cite": "304 Ill 190", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 4998682 ], "year": 1922, "pin_cites": [ { "page": "205" } ], "opinion_index": 0, "case_paths": [ "/ill/304/0190-01" ] }, { "cite": "175 NE2d 293", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "31 Ill App2d 241", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5228357 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/31/0241-01" ] }, { "cite": "67 NE2d 162", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "394 Ill 71", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2472075 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill/394/0071-01" ] }, { "cite": "50 NE2d 737", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "384 Ill 41", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2491685 ], "opinion_index": 0, "case_paths": [ "/ill/384/0041-01" ] }, { "cite": "113 NE2d 327", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "350 Ill App 471", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5106858 ], "opinion_index": 0, "case_paths": [ "/ill-app/350/0471-01" ] }, { "cite": "88 NE 651", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": 0 }, { "cite": "240 Ill 259", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3423184 ], "opinion_index": 0, "case_paths": [ "/ill/240/0259-01" ] } ], "analysis": { "cardinality": 728, "char_count": 12690, "ocr_confidence": 0.562, "pagerank": { "raw": 1.1559594655634593e-07, "percentile": 0.5829160310118466 }, "sha256": "867e4032daa74589020a43fe77332a6b9ba3ae1250a5f89e2d280333123bdb87", "simhash": "1:61736752263c66dc", "word_count": 2169 }, "last_updated": "2023-07-14T20:04:28.965916+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "ENGLISH, P. J. and McCORMICK, J., concur." ], "parties": [ "Chris Lee Rollins and Elizabeth Rollins, Plaintiffs-Appellants, v. The General American Transportation Corporation, a Corporation; Chicago River and Indiana Railroad Company, a Corporation; and Chicago Great Western Railroad Company, a Corporation, Defendants-Appellees." ], "opinions": [ { "text": "MR. JUSTICE DRUCKER\ndelivered the opinion of the court.\nBy this appeal plaintiffs seek to reverse the judgment of the trial court dismissing plaintiffs\u2019 Third Amended Complaint and the Amendment thereto.\nChris Lee Rollins brought an action against Chicago Great Western Railway Co., the Chicago River & Indiana Railroad Co. and the General American Transportation Corporation alleging that Rollins, while an employee of Swift & Company, was injured while unloading tallow from a tank car which had been leased to his employer by General and shipped from St. Paul. Great Western was the originating carrier, Chicago River the delivering carrier, with Swift as both consignor and consignee.\nAll defendants filed motions to dismiss which were considered at the same time. Among other grounds, Chicago River urged that plaintiff was, as a matter of law, contributorily negligent and the other defendants contended that the Complaint did not state a cause of action. There was no statement in any of the pleadings that plaintiff was in the exercise of due care.\nWe would not sustain a dismissal solely because plaintiffs did not affirmatively state that they were in the exercise of due care. All the facts must he carefully examined to determine whether, if taken as true, they disclose that, as a matter of law, the plaintiff was in the exercise of ordinary care and a cause of action asserted.\nIn a much quoted case, Walters v. City of Ottawa, 240 Ill 259, at page 266, 88 NE 651, the court held:\n\u201cA declaration in an action to recover for injuries received through negligence that does not aver due care on the part of the plaintiff when he was injured, and does not contain any averment in regard to his conduct or the circumstances surrounding him from which due care on his part may be reasonably inferred, does not state a cause of action. . . .\u201d\nIn the case of Church v. Adler, 350 Ill App 471, at page 479, 113 NE2d 327, it was stated:\n\u201cLiberality of construction and the rule of reasonable information do not overcome the requirement that sufficient facts be alleged to state a cause of action. Moulopoulos v. Northern Trust Co., 384 Ill 41, 50 NE2d 737. . . \u201d\nPlaintiff insists, however, that General and Chicago Eiver did not specifically raise the defect in the Complaint as to due care or contributory negligence in the trial court by their objection that the Complaint did not state a cause of action.\nIn Lasko v. Meier, 394 Ill 71, at page 75, 67 NE2d 162, it was held that: \u201cIf, with all intendments in its favor, a complaint wholly or absolutely fails to state any cause of action at all, objection can be made to it for the first time on appeal.\u201d\nAlso, in Merriam v. McConnell, 31 Ill App2d 241, it was stated at page 244, 175 NE2d 293:\n\u201cDefendants, as appellees, may sustain the decree of dismissal \u2018by any argument and upon any basis appearing in the record which shows the decree is right, even if (they) had not previously advanced such argument.\u2019 Becker v. Billings, 304 Ill 190, 205, 136 NE 581 (1922); 222 East Chestnut St. Corp. v. Murphy, 325 Ill App 392, 399-400, 60 NE2d 450 (1954). Defendants are entitled, therefore, to argue on appeal the vital question whether the complaint, in the record, states a cause of action of which equity will take jurisdiction.\u201d (Citing other cases.)\nLet us then scrutinize the Complaint in the light of these authorities. The Complaint avers as follows:\n\u201cOn September 11, 1959, and for at least nine years prior, he had assisted in unloading tallow from tank cars. Since tallow arrived in a solid condition he and his fellow employees were required, as their customary and usual duties, to do the following: To attach steam pipes to the tank car to be unloaded so that steam circulating through the car would heat the tallow to about 200\u00b0 F; . . .\n\u201cWhen the tallow became liquified he attached a pump to the car and proceeded to pump out the tallow. When the tallow reached the level somewhat under 24 inches in maximum depth, plaintiff placed a wooden ladder down into the interior of the car, climbed down the ladder and stepped off the ladder onto the steam coils. While he was standing on the coils, he slipped. He first tried to support himself along the walls of the car which sloped inward) then grabbed for the ladder. Because it was not fixed, the ladder eluded his grasp and fell into the tallow. Because the walls had nothing which he could hold onto, they gave him no support. Plaintiff fell forward into the boiling tallow. He struggled in the tallow for some time trying to get out. This was made almost impossible because of the absence of objects which he could grab. Finally he was able to place the ladder upright once again, and he managed to climb out, horribly burned, more dead than alive.\u201d\nA further allegation of the Complaint states: \u201cThe interior of tank car SWTX 9003 and like cars was always rendered slippery by the recent presence of tallow and thus dangerous to men who like the plaintiff had to enter the car to remove tallow.\u201d It is then charged that the tank car in question had been newly painted \u201cwith a slick and slippery paint which rendered the interior unsafe.\u201d No facts are pleaded which can in any way be interpreted as showing that a recent coat of paint on the coils caused them to be more slippery than they would ordinarily have been after being covered with a greasy substance such as tallow, or that the hazard was increased in any other way. In the Third Amended Complaint against Great Western, plaintiff\u2019s only factual presentation of the occurrence is limited to \u201cChris Lee Eollins fell when emptying car.\u201d\nAfter a consideration of all of the above factors, the court comes to a conclusion which is well stated in Smith v. Chicago Gen. Ry. Co., 86 Ill App 647, at page 649:\n\u201cWe think the facts stated in the declaration, with their proper inferences, clearly disclose such certain and uncontrovertible contributory negligence by the appellant as precludes a recovery by him. While the question of negligence, either by defendant or plaintiff, is ordinarily one of fact for a jury, yet, when the inference of negligence necessarily results from the statement of his case by a plaintiff, it becomes a question of law for the court.\u201d (Quoting other cases.)\nEven though this ruling would dispose of this appeal, we will discuss the objection that the Complaint does not meet the requirement that it must state facts which disclose a duty to plaintiff on defendants\u2019 part and defendants\u2019 breach of that duty. Lasko v. Meier, 394 Ill 71, 67 NE2d 162.\nIt appears from the Complaint that for 20 years the tank cars used in hauling tallow had no immovable ladders, handrails, grab irons or any other contrivance within the car. There were only steam coils which were heated prior to unloading by Swift\u2019s employees. There is no claim that the exterior of the tank car or any mechanism within it was defective. At the time of unloading there was no control, supervision or direction by any of the defendants. Since Swift was lessee, consignor and consignee, there was no duty on the part of Chicago River and Great Western as to unloading.\nIn the very recent case of Shipley v. Southern Pacific Co., 44 Ill Ap2d 1, 193 NE2d 862, an employee of a company which was both consignor and consignee sued the originating and delivering carriers for injuries sustained by him while unloading a shipment of lumber. The opinion at page 9 phrases the issue:\n\u201c. . . whether a carrier which did not load a boxcar and which received it sealed and then delivered it to the consignee for unloading, had a duty to inspect the condition of the load to determine whether it was safe for unloading. Those cases which have considered this issue have held that no such duty is imposed on the carrier.\u201d (Citing other cases.)\nSince the same basic facts as to responsibility are present here, Chicago River and Great Western were entitled to a dismissal on the premise that the Complaint did not assert any duty owed the plaintiff by them.\nPlaintiff seeks to avoid the effect of this case by alleging a contract with Chicago River. However, no copy of this instrument or the relevant terms thereof are stated as required by Section 36 of the Civil Practice Act. There is only a description of functions to be performed by Chicago River and no averment that these were covered by the contract.\nGeneral is the lessor and designer of the tank car and in 1931 contracted with Swift \u201cthat all tank cars furnished by General should be safe for loading and unloading, that General would inspect all the tank cars at frequent intervals and would repair and maintain the cars as repair and maintenance became necessary.\u201d The Complaint asserts that \u201cContinuously for more than twenty years prior to September 11, 1959, tank cars containing tallow were consigned to the Swift Plant in Chicago. . .\u201d There is no allegation in the Complaint of lack of inspection or failure to repair. The only question raised is whether General breached its duty to provide a car safe for loading and unloading, There evidently was a proper loading. There is no allegation that the car furnished could not be unloaded safely. Plaintiff\u2019s theory seems to be that the design of the car should have made it possible for Swift to remove all of the hot tallow without utilizing manual labor or that a tank ear equipped with immovable ladders, hand rails, etc., although covered with greasy, slippery tallow, would have been safer for unloading.\nIn Watts v. Bacon, 18 Ill2d 226, 232, 163 NE2d 425, the court said:\n\u201cIt is not in itself negligence to supply a certain type of material which is reasonably safe and customarily used, though other materials might conceivably be safer. Day v. Barber-Colman Co., 10 Ill App2d 494, 508.\u201d\nFinally, we do not feel the decision of the Illinois Supreme Court in Kahn v. James Burton Co., 5 Ill2d 614, 126 NE2d 836, upon which plaintiff places great reliance, is contrary to our decision here. The Kahn ease involved a suit for injuries by an infant plaintiff against a lumber supplier for injuries sustained by him when a pile of lumber placed at a construction site by the defendant, at which the plaintiff was playing, toppled over on him. The Supreme Court there refused to follow defendant\u2019s argument that it owed no duty to plaintiff, holding that defendant\u2019s duty extended to all who could foreseeably be endangered by its negligence.\nThat case, however, has no bearing on the present factual situation as General here admits the existence of a duty to supply a car reasonably safe for unloading. The issue in the instant case is not, as in Kahn, the existence or not of such a duty, but whether that duty was breached by furnishing the same type of car as had been supplied for 20 years.\nWe have concluded from a consideration of the facts pleaded in the Third Amended Complaint and the Amendment thereto, that plaintiff was, as a matter of law, contributorily negligent, failed to show negligence on the part of the defendants and thus did not state a cause of action.\nThe claim of Elizabeth Rollins is based on plaintiff\u2019s cause of action and therefore falls with the dismissal of the Complaint. '\nThe judgment of the Circuit Court is affirmed.\nAffirmed.\nENGLISH, P. J. and McCORMICK, J., concur.\nWe shall refer to Chris Lee Rollins as the plaintiff, although his wife is also a plaintiff in Counts for loss of services.\nSHA, ch 110, \u00a7 36, provides: \u201cIf a claim or defense is founded upon a written instrument, a copy thereof, or of so much of the same as is relevant, must be attached to the pleading as an exhibit or recited therein, unless the pleader attaches to his pleading an affidavit stating facts showing that the instrument is not accessible to him.\u201d\nNo affidavit was filed.", "type": "majority", "author": "MR. JUSTICE DRUCKER" } ], "attorneys": [ "Charles Pressman and James P. Chapman, both of Chicago, for appellants.", "Kirkland, Ellis, Hodson, Chaffetz & Masters, of Chicago (Frederick W. Temple, Max E. Wildman and Francis J. Libbe, of counsel), for appellee, General American Transportation Corporation. Richard O. Olson, Alvin E. Domash and Robert W. Coster, all of Chicago, for appellee, Chicago River and Indiana Railroad Company. Winston, Strawn, Smith & Patterson, of Chicago (Edward J. Wendrow and R. Lawrence Storms, of counsel), for appellee, Chicago Great Western Railway Com ny." ], "corrections": "", "head_matter": "Chris Lee Rollins and Elizabeth Rollins, Plaintiffs-Appellants, v. The General American Transportation Corporation, a Corporation; Chicago River and Indiana Railroad Company, a Corporation; and Chicago Great Western Railroad Company, a Corporation, Defendants-Appellees.\nGen. No. 49,005.\nFirst District, Fourth Division.\nFebruary 5, 1964.\nRehearing denied March 25, 1964.\nCharles Pressman and James P. Chapman, both of Chicago, for appellants.\nKirkland, Ellis, Hodson, Chaffetz & Masters, of Chicago (Frederick W. Temple, Max E. Wildman and Francis J. Libbe, of counsel), for appellee, General American Transportation Corporation. Richard O. Olson, Alvin E. Domash and Robert W. Coster, all of Chicago, for appellee, Chicago River and Indiana Railroad Company. Winston, Strawn, Smith & Patterson, of Chicago (Edward J. Wendrow and R. Lawrence Storms, of counsel), for appellee, Chicago Great Western Railway Com ny." }, "file_name": "0266-01", "first_page_order": 278, "last_page_order": 287 }