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Mccorkel v. Pennsylvania R. Co.

OCTOBER 2, 1961.

DANIEL B. MCCORKEL, APPELLANT,

v.

THE PENNSYLVANIA RAILROAD COMPANY, A CORPORATION, APPELLEE.



Appeal from the Circuit Court of Cook County; the Hon. L.L. WINN, Judge, presiding. Affirmed.

MR. PRESIDING JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT.

Rehearing denied October 20, 1961.

This is a Federal Employers' Liability case, in which plaintiff appeals from a judgment for defendant, entered on a not guilty verdict. The plaintiff, Daniel B. McCorkel, a locomotive engineer employed by defendant, seeks to recover for a severe hearing loss, which he claims was caused by the negligent operation of horns on defendant's diesel locomotives.

Plaintiff was born on September 2, 1892. He worked as a fireman and engineer for defendant from 1923 to November, 1955. Initially, he passed a physical examination, and subsequently passed periodical physical check-ups and examinations. It is undisputed that he has a hearing loss, and that defendant produced no witnesses to disprove plaintiff's testimony that on two occasions in 1955, while he was on duty, horns or whistles on locomotives of defendant, on adjoining tracks, were blown without prior notice to him. He made one trip in 1955, after the second occurrence, and has not worked since.

The principal contentions of plaintiff are that the verdict is against the manifest weight of the evidence; that he did not receive a fair trial; and that the court erred in the conduct of the trial and in the giving of an instruction.

[1-3] In FELA cases, the Appellate Court's function is exhausted when an evidentiary basis for the jury's verdict becomes apparent, and "only when there is a complete absence of probative facts to support the conclusion reached, does a reversible error appear." (Bowman v. Illinois Cent. R. Co. (1957), 11 Ill.2d 186, 200, 201, 142 N.E.2d 104; Lavender v. Kurn (1946), 327 U.S. 645.) This rule applies to both guilty and not guilty verdicts. (Perez v. Baltimore & Ohio R. Co. (1960), 24 Ill. App.2d 204, 209, 164 N.E.2d 209.) When there is an evidentiary basis for the jury's verdict, "the jury is free to discard or disbelieve whatever facts are inconsistent with its conclusion." (Lavender v. Kurn, 327 U.S. 645, 653.) Therefore, our examination of the evidence is limited to a determination of "whether there was an evidentiary basis for the jury's verdict." Bowman v. Illinois Cent. R. Co., 11 Ill.2d 186, 202, 142 N.E.2d 104.

Plaintiff testified that on September 16, 1955, while he was on duty in the cab of a locomotive, someone inside the cab of a diesel locomotive, about 8 to 10 feet away from plaintiff, pulled the horn wide open and sounded two long blasts on the horn. The blasts were each of about 5 seconds duration and 2 or 3 seconds apart. He had a lot of pain in his head and his ears hurt. He reported the incident of September 16, 1955, on his regular periodical check-up on September 28, 1955. His ears were examined and his hearing was found poor. He was referred by defendant to Dr. Brice Fitzgerald, who treated him from September 28, 1955, until October 28, 1955. During the latter part of October he felt some improvement and lessening of pain.

On November 22, 1955, while sitting in the right-hand side of the engine cab, with his head outside of the window, someone in a locomotive, which was stopped on an adjoining track about 4 feet from plaintiff, sounded 5 long blasts on the horn, each blast being 6 or 8 seconds duration and about 2 seconds apart. Plaintiff experienced severe and almost unbearable pain. He immediately reported this incident and was sent to a Dr. Stevens, who gave him a prescription for medicine, which he took. The next day dizziness set in, and after one more trip, he never worked again for the defendant or anyone else.

Plaintiff further testified that he never had any difficulty with his hearing prior to September 16, 1955; that in 1924 he had a slight burn, also malarial fever; that in 1945 he had pneumonia for six weeks; that from November 22, 1955, until the trial, his hearing had not improved, and pain and dizziness bothered him continually. He was taken out of railroad service by defendant's medical department and never received a return-to-duty card, nor was he offered a yard job. He denied telling Dr. Fitzgerald on September 28, 1955, that he had been gradually losing his hearing for 25 years.

Plaintiff also testified, "It was the custom and practice to make it known to anyone who was close to you, that you were going to blow the horn, in order to give them a chance to protect themselves. Many times there were orders on the bulletin board with regard to blowing horns when people were in close proximity. . . . I have seen these orders posted in Logansport, Columbus and Chicago. They caution you about the excessive use of the whistle."

On cross-examination regarding standard railroad whistle or horn signals, plaintiff testified, "I have heard the five whistle blasts to call in a flagman many times, and I have known two engines to be sitting side by side on a track, but usually in that case an engineer will caution the other fellow if he thinks it could do any damage." Plaintiff identified his signature on a notarized renewal application for a driver's license in the State of Indiana, made in September, 1958, which shows his date of birth as September 2, 1897, and contains the following question and answer: "9. Are you hard of hearing? No." In connection with this document he stated, "In September of 1958, when I applied for a driver's license with the State of Indiana, I just showed the lady the other driver's license and she took it off of there."

The fireman who was on duty with plaintiff on both dates deposed that he was not present at the September 16, 1955, occurrence. He corroborated plaintiff's testimony as to what occurred on November 22, 1955. He stated, "It is unusual for one engine to stop beside another engine and sound a whistle like that when there is a crew on both engines. . . . It is in the book of rules and also it's been posted on the bulletin board at various times, that the unnecessary use of the horn is prohibited and a fellow is supposed to use a little common sense when somebody is around." He also stated that on November 22, 1955, "the sound of the whistle was in the usual manner to call in the flagman."

The fireman on the other locomotive involved in the November 22 occurrence deposed that he recalled the incident and stated, "I sounded the horn 2 shorts; and then after a period of time, I started to sound some long blasts of the whistle to recall the flagman. . . . As far as I know, my horn was working all right on that occasion and I do not recall having any difficulty with it. . . . At that particular time, we were headed west and calling the flagman from the east which would be 5 long blasts of the whistle. . . . The 2 short blasts were in answer to a signal to a switch-tender. You generally railroad by the use of signals of some type. . . . On that particular type of horn, I expect it sounded just as it had on other occasions."

An expert witness for plaintiff testified that a diesel locomotive whistle is "one of the most powerful sound ...


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