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Dupay v. New York Cent. R. Co.

MAY 7, 1969.




Appeal from the Circuit Court of Cook County; the Hon. F. EMMETT MORRISSEY, Judge, presiding. Affirmed.


The New York Central Railroad appeals from a judgment of $85,000 after a jury trial on plaintiff's claim for personal injuries under Title 45 USCA §§ 51-60, the Federal Employers' Liability Act. Plaintiff sued for injuries sustained while in defendant's Ashtabula, Ohio, Railroad Yard.

Defendant urges the following contentions in its appeal from the judgment: (1) the trial judge should not have instructed the jury that the plaintiff was in the course of his employment when the accident occurred because there was evidence in the record that plaintiff was intoxicated at the time; (2) evidence of plaintiff's past reputation for sobriety should have been excluded; (3) plaintiff's attorney improperly badgered, embarrassed and harassed defendant's witness Dr. McCarthy; (4) the plaintiff's attorney improperly commented upon the financial condition of defendant in his closing argument; and (5) the trial court committed numerous other errors that cumulated to deprive defendant of a fair trial. Defendant raises no question as to the amount of the judgment.


Testimony of Andrew J. Dupay, plaintiff:

He is 62 years old. Prior to the injury he was a yard brakeman (switching cars) for The New York Central Railroad Company (defendant), working in Ashtabula, Ohio. He started working with defendant in 1924 and received no training then. His duties as brakeman consisted of working with a crew cutting cars, throwing switches, classifying cars and diverting them to different tracks.

On May 3, 1961, he reported for duty at 2:45 for the 3:00 to 11:00 shift. His job that day was a highball assignment. He would have to climb a tower 20 to 22 feet off the ground and pass signals to the engineer as the crew passed the signals to him. He reported for duty by making out a time slip and then left the office and walked toward the highball stand which is south of the office. When he reached the top of the stand there were three or four cars yet to go past the switch, and Mr. Massey, who was working the left side, gave a swing down. The cars cleared Massey and stopped; Massey then gave a back away and the cars started moving toward the plaintiff.

As the cars were moving he developed a cramp. He then came down from the tower slowly. He could see that the train was operating in a straight line so he started toward the yard office to pick up his finger mitt which he had left there. He had not intended to take any particular path to the yard office; there are many paths that can be used. He works in that area every day, and it is customary to come off the stand after signaling. As he crossed over to go north his legs gave out all of a sudden and he pitched forward toward the cars. He grabbed the sill steps of two different cars, and was dragged until he lost consciousness. His legs gave way because he stepped on some debris, pellet ore, fusee butts, limestone and other objects.

Pellet ore falls off cars in the yard. It comes in round pieces, like marbles, an inch or two inches in diameter. Fusee butts accumulate along the tracks when they are discarded after being used for signaling. The debris was there for a year or more before the accident. He had complained about it to the yardmaster and maintenance section foreman, probably two or three times in the six months prior to the accident. There were no changes in the area after the complaints.

When he regained consciousness he was in the Ashtabula General Hospital. He had been taken to the hospital by ambulance after the accident (which happened at 3:30 or 3:45). He was admitted and placed under the care of Dr. McCarthy.

When he arrived at the hospital he was sick from loss of blood and he had swallowed his snuff; he was chewing snuff at the time of the accident. He vomited in the emergency room of the hospital. The snuff was flavored with sherry and may have given off an alcoholic odor.

Testimony of Joseph R. Garvey, called by plaintiff as an adverse witness under section 60 of the Civil Practice Act, Ill Rev Stats 1967, c 110:

He is assistant general yardmaster, west yard tower. On May 3, 1961, he was general yardmaster at Ashtabula, in charge of all yards. He was working in his office in the east end of the west yard when he was informed by telephone of plaintiff's accident. Plaintiff did not appear to be drunk; he did not observe any evidence of drinking on plaintiff's part. Plaintiff was quite a drinker when he first came to the railroad but he does not know of plaintiff having taken a drink in the past ten years. He did not observe any evidence of alcohol on plaintiff's breath in the emergency room.

The distance from the highball stand to the yard office is about 300 feet. There is no pathway between the two points. He does not recall finding any pellet ore in his examination of the area. He did not examine the highball stand at the time of the accident. He would expect to find some fusees under the highball stand. The fusees in the area of the tower are thrown to the ...

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