APPEAL from the Circuit Court of Cook County; the Hon. JOHN C.
FITZGERALD, Judge, presiding.
MR. PRESIDING JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:
Decedent brought this action under paragraph 1 of the Federal Employer's Liability Act. (45 U.S.C. par. 51, et seq.) He died prior to trial and his son, as special administrator of his estate, was substituted as plaintiff. This cause proceeded to trial before a jury and a verdict in the amount of $75,000 was rendered in favor of plaintiff. On appeal defendant contends: (1) the cause of action for personal injuries to decedent did not survive to his adult non-dependent son; (2) the survival action was barred by failure of plaintiff to make a timely request for substitution; (3) the medical evidence will not sustain the verdict; (4) the trial court improperly allowed plaintiff to amend his complaint by adding allegations of negligence; and (5) the court improperly refused defendant's instruction relating to its duty of care. Plaintiff has withdrawn his cross-appeal.
Decedent was a man of about 60 years of age. He had worked for many years as a railroad yard worker and was physically well suited for such employment. His co-workers described him as being muscular, pleasant, healthy, active and a hard worker who never missed a day on the job. And so it was that he went to work his evening shift on December 12, 1961. The weather on the previous days had produced alternate periods of snow, thaw and freeze resulting in very slippery conditions in the railroad yard on that evening. Although defendant made it a practice to spread salt and abrasive materials on the area around the "leads," the area in which decedent worked was not so cared for. As Harry Carnegie, one of decedent's co-workers, watched from inside a shanty, defendant walked in his normal manner through a very slippery part of the railroad yard. He carried the standard yardman's equipment. Suddenly decedent lost his footing and fell on his back. Carnegie went to decedent's aid and helped him to his feet. Decedent said he was "all right" and the two stood together for a few minutes until the train to which Carnegie was assigned came by and he left. As he left, however, he noticed that decedent was walking unusually "tilted" as if he was hurt. A short time later, Carnegie again saw decedent lying on the icy ground but this time his work demands kept him from helping. Instead, Carnegie immediately informed Mike Capella, a foreman, who went to decedent's aid. When Capella reached the scene, decedent asked to be helped up. He rose to his feet but again fell and Capella had to carry him to a shanty.
Once at the shanty, decedent sat slumped at a table and mumbled incoherently. He also seemed to have lost the use of his left shoulder and arm. He was taken by ambulance to the hospital where he was treated by defendant's industrial physician and then by a neurosurgeon. Both of these doctors testified at trial and their testimony will be dealt with in detail later. Death came on May 6, 1965 and decedent is survived by his 39 year old non-dependent son.
• 1 Defendant contends that a cause of action which arises under paragraph 1 of the Act does not survive under paragraph 9. Paragraph 1 provides that in case of the wrongful death of such employee a cause of action accrues "to his or her personal representative, for the benefit of the surviving widow or husband and children of such employee; and, if none, then of such employee's parents; and, if none, then of the next of kin dependent upon such employee * * *." Paragraph 9 provides:
"Any right of action given by this chapter to a person suffering injury shall survive to his or her personal representative, for the benefit of the surviving widow or husband and children of such employee, and, if none, then of such employee's parents; and, if none, then of the next of kin dependent upon such employee, but in such cases there shall be only one recovery for the same injury."
It is apparent that the operative language of both sections which is relevant to the instant case is identical. Our Supreme Court has, however, in Jensen v. Elgin, Joliet and Eastern Ry. Co. (1962), 24 Ill.2d 383, 385-386, 182 N.E.2d 211, 213, held that these sections, although identical in language, are different in meaning and effect. The court, in holding opposite to the position advanced by defendant in the instant case stated:
"The basis of liability for an action which survives under section 9 is, on the other hand, the wrong to the injured employee and the measure of damages is his personal loss and suffering before he died (ST. LOUIS IRON MOUNTAIN & SOUTHERN RAILWAY v. CRAFT, 237 U.S. 648, 59 L.ed 1160.) Thus, the basis of liability and measure of damages that may operate to prevent some children from recovering under the wrongful death provisions of section 1 are not present in an action which survives under section 9. We are of the opinion that the word `children' has its ordinary dictionary meaning in both sections 1 and 9. The Appellate Court by construing the word `children' to mean `minor dependent children' unnecessarily placed a restriction on beneficiaries clearly designated in section 9, a restriction which exists under section 1 only because of the inherent nature of a wrongful death action."
Defendant, however, urges that under both paragraphs 1 and 9 "children" must be "dependent" upon the deceased employee as a prerequisite to recovery. Defendant implies in its argument that the term "next of kin" is generic and refers back to the other terms of relationship and that the use of the term "dependent" modifies "next of kin" and has the like effect of referring the modification to the other terms of relationship. In support of this theory, defendant cites Auld v. Terminal R.R. Assn. of St. Louis (Mo. 1970), 463 S.W.2d 297 cert. denied (1971), 401 U.S. 940, which it contends is a better reasoned view. That case involved an action brought under paragraph 1 of the F.E.L.A. for the benefit of two sisters and a brother of deceased, none of whom were dependent upon him. The court held that the word "dependent" had the same meaning in both paragraph 1 and 9, and that dependency must be shown in order for "next of kin dependent upon such employee" to recover. In so holding the court stated at 463 S.W.2d 299:
"Plaintiff contends that she is entitled to recover because there are two separate claims for relief that arise in a death case under F.E.L.A., one for wrongful death and the other for the conscious pain and suffering of deceased; that the former requires pecuniary loss on the part of the beneficiaries but that the measure of damages for the latter is that which decedent would have recovered had he not died and therefore there need not be a showing of any pecuniary loss to the beneficiaries. We agree that there are two separate claims in this sort of action and that the claim under § 59 is for damages arising prior to the death of decedent. St. Louis, Iron Mountain & Southern Ry. Co. v. Craft, 237 U.S. 648, 35 S.Ct. 704, 59 L.ed. 1160. However, we do not see that the difference in the measure of damages in the two sections has any effect on the intention of Congress in its use of the word `dependent' as a condition for recovery by the next of kin. It is our view that the word `dependent' in each section has the same meaning."
We cannot be persuaded by Auld, since Jensen has determined that children need not be dependent in order to be beneficiaries of the survival action and we are bound by that decision.
• 2 Defendant urges another ground for the barring of the survival action in that it contends that the failure to substitute the special administrator and to file an appropriate amended complaint for more than three years after deceased's death constitutes an effective bar to the action. Decedent was injured on December 12, 1961, the action was initially brought on November 2, 1964, he died on May 6, 1965 and suggestion of that death was made of record on October 27, 1969 and on that same date leave was sought to substitute as plaintiff, Bernard Ferak, Special Administrator of the Estate of Michael Ferak. That request was immediately granted. It is unnecessary to determine whether this question is governed by Fed. R. Civ. P. 25 (a) (1), or par. 54(2) of the Illinois Civil Practice Act as both sections state that dismissal of the action would be appropriate only if the motion for substitution is made more than 90 days after the death is suggested of record. The motion for substitution of parties was made on the very day deceased's death was suggested of record. This amounted to diligent compliance with the rules and therefore afforded no opportunity for a dismissal of the lawsuit.
• 3 Defendant urges further, however, that the limitations found within the F.E.L.A. itself (45 U.S.C. par. 56) prohibit plaintiff from prosecuting his case. He contends that plaintiff's failure to suggest the death of record for more than four years after its occurrence bars the action in light of the statutory language which reads:
"No action shall be maintained under this chapter unless commenced within three years from the day ...