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Doerge v. Wabash R.r. Co.

MARCH 23, 1972.

HAROLD DOERGE, PLAINTIFF,

v.

WABASH RAILROAD COMPANY, DEFENDANT AND THIRD PARTY PLAINTIFF-APPELLEE. — (TERMINAL RAILROAD ASSOCIATION OF ST. LOUIS, THIRD PARTY DEFENDANT-APPELLANT.)



APPEAL from the Circuit Court of St. Clair County; the Hon. JOSEPH E. FLEMING, Judge, presiding.

MR. JUSTICE EBERSPACHER DELIVERED THE OPINION OF THE COURT:

Rehearing denied May 5, 1972.

This action is a suit for personal injuries and damages resulting therefrom brought under the Federal Employers' Liability Act against defendant Wabash Railroad Company (hereinafter called "Wabash"). Wabash in turn filed a third party action for indemnity against Terminal Railroad Association of St. Louis as third party defendant (hereinafter called "Terminal"). Plaintiff's complaint set forth two causes of action, the first of which set forth in Count I, occurred on April 21, 1963, and involved a Wabash train on which plaintiff was the engineer, being pushed by another Wabash engine, into a train operated by Terminal employees on the wrong track; the second, set forth in Count II, occurred on June 22, 1963, and involved plaintiff falling on a Wabash turntable. The jury awarded plaintiff a verdict of $30,000 on Count I, and $10,000 on Count II.

Wabash was awarded a $30,000 verdict on its third party complaint against Terminal, which consisted of two counts; the first of which alleged the existence of a contract containing certain transportation rules which Wabash contended provided it indemnification; and the second of which was based on an active-passive negligence theory. By answer to a special interrogatory the jury found that Wabash as third party plaintiff was not actively negligent in causing or contributing to the accident occurring on April 21, 1963. The trial court directed a verdict in favor of Terminal on Count I of the third party complaint, but denied the motion for a directed verdict on Count II of the third party complaint.

Judgment was entered on each of the verdicts. Plaintiff's post trial motion requesting a new trial on the basis of inadequate damages was denied, as was Wabash's motion for judgment notwithstanding the verdict. Terminal's post trial motion praying that the answer to the special interrogatory and the judgment against it be set aside and judgment be entered in favor of Terminal on the third party complaint was denied, as was its prayer in the alternative for a new trial.

Plaintiff appeals on the ground that the jury verdict is inadequate. Terminal appeals on the ground that the evidence fails to prove a right of indemnification by Wabash against Terminal.

The occurrences involved in this action were a train collision on April 21, 1963, and a fall occurring on June 22, 1963, on a turntable. At the time of the accidents, plaintiff was employed by Wabash as an engineer operating a switch engine in the Brooklyn Yards, East St. Louis, Illinois. On April 21, 1963, plaintiff was located in his engine at the south end of a train being shoved by another Wabash engine from the north end. Plaintiff's engine, after plaintiff leaped from it, collided with a train operated by employees of Terminal which was located on the wrong track. There is evidence in the record showing that the Wabash train could have been stopped and the collision avoided if the other members of the Wabash crew had been in their proper places. Plaintiff, upon seeing the Terminal train, applied his brakes and blew the whistle. Because no stop signal was communicated to the Wabash engine on the north end it kept shoving and prevented the train from stopping. Approximately twenty-five feet before the collision and while the Wabash train was traveling about five miles per hour, the plaintiff left the engine.

Following this incident he did not think he had hurt his back, and he continued to work regularly, driving a round trip each day of 100 miles to and from work. On June 22, 1963, he stumbled on the turntable. He finished his shift that day and continued working regularly until September 30, 1963. There was evidence that on that day he had injured himself at home when he suddenly stooped down to pick up a can of lard. He first consulted a doctor on October 5, 1963, when he signed a report made by his doctor which made reference to no incidents other than that of September 30. He was then hospitalized and on October 18, 1963, was operated on for a herniated disc. Plaintiff returned to work on February 6, 1964. He was still experiencing some pain in his legs and back which was aggravated by the normal stresses involved in his job as an engineer. Finally in March, 1965, he was experiencing pain from the mere turning of his head or back and discontinued work at that time.

The medical testimony was to the effect that plaintiff's complaints, which resulted in his discontinuing work, could have been related to incidents not related to the collision or the turntable incident.

In regard to damages an economist testified as to the damages giving the total loss sustained of $290,878. The breakdown being $68,645 lost wages, $200,698 future lost wages and $21,535 past and future lost services provided in the home by the husband.

• 1 The test to be applied by this court is set forth in Blyzes v. Midwest Towing Co., Inc. (1969), 109 Ill. App.2d 48, wherein we stated at page 55:

"The courts of review in this state have also repeatedly held that the assessment of damages is primarily a question of fact for the jury and that an Appellate Court should not substitute its judgment for that of the jury's as to the amount to be awarded in a given case. Lau v. West Towns Bus Co., 16 Ill.2d 442, 158 N.E.2d 63; Wells v. Gulf, M. & O.R. Co., 82 Ill. App.2d 30, and cases cited therein."

• 2 Because of the state of the evidence in this case, we will not interfere with the amount of the verdict. The testimony was such that the jury could reasonably infer that the plaintiff's back complaints stem from the lard can incident and not from the collision or the turntable incident which caused complaints regarding the leg, ankle and hip.

Regarding the jury verdict holding Terminal liable to Wabash for $30,000, we reverse. In Chicago & Illinois Midland Ry. Co. v. Evans Const. Co. (1965), 308 ...


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