APPEAL from the Circuit Court of Cook County, the Hon. GEORGE
J. SCHALLER, Judge, presiding.
MR. JUSTICE DOWNING DELIVERED THE OPINION OF THE COURT:
Edward Jackson (hereinafter plaintiff) sought by a personal injury suit to recover damages for an injury to his left hand allegedly caused by the negligence, and the wilful and wanton negligence, of the Illinois Central Gulf Railroad (hereinafter the railroad). Subsequently, the railroad filed a third-party complaint against the University of Chicago (hereinafter the university), basing its cause upon a written "side track" agreement which existed between the railroad and the university.
The third-party complaint contained three counts. Count I alleged that plaintiff's injury had been caused solely by the university's negligence and that the railroad was entitled, therefore, to full indemnity; count II alleged that the railroad and the university had been jointly negligent, and that, therefore, the railroad was entitled to contribution from the university; and count III alleged that the railroad was entitled to full indemnification from the university under the common law doctrine of "active-passive" negligence.
After denials of all the parties' motions for directed verdicts, plaintiff's case as well as the third-party action was submitted to a jury. The jury returned a verdict in favor of plaintiff against the railroad, finding the railroad to have been actively negligent, and a judgment of $125,000 in damages was entered upon the verdict. With respect to the third-party action, the jury returned a verdict in favor of the railroad on count II of its complaint, finding that the university had been guilty of passive negligence. The court below then entered judgment in the railroad's favor in the amount of $62,500, representing the sum of contribution owing from the university.
The railroad and the university have appealed from the judgment entered in favor of the plaintiff, as well as from the judgment entered in the third-party action.
The issues presented to this court for review are:
(1) Whether the jury properly found that the railroad had been negligent and that plaintiff had been in the exercise of ordinary care for his own safety;
(2) Whether the railroad owed to plaintiff a duty to look for and warn plaintiff of the impending movement of railroad cars, located on a "spur track" maintained by the university, under which plaintiff was working;
(3) Whether there was sufficient evidence presented to warrant the submission to the jury of the issue of the railroad's wilful and wanton misconduct;
(4) Whether there was sufficient evidence presented to warrant the giving of an instruction to the jury concerning the plaintiff's lost future earnings;
(5) Whether the jury's award was so excessive as to warrant an order of a substantial remittitur by this court; and
(6) Whether the railroad was entitled to contribution from the university.
The pertinent facts can be summarized as follows:
Plaintiff, Edward Jackson, who was 27 years old at the time of the accident, testified that on November 6, 1967 the day of the accident he was employed by the University of Chicago as a machine operator in the university's steam and power plant; that he had begun working in the power plant 2 months prior to the day of the accident, though he had worked as a janitor for the university for some years; that his main work in the power plant was to move a machine back and forth along a conveyor belt which brought coal to the plant in order to keep the university's coal bins full; that railroad coal cars would be brought by the railroad onto the university's elevated "spur track," located atop a trestle on the university's premises; that the coal cars were then emptied by university personnel into coal pits located directly underneath the spur track; that after the coal had been unloaded from the cars, it was brought down through a series of holes at the bottom of the pits to a conveyor belt underneath, which carried the coal to the power plant; that, on occasion, he would be requested to assist in unloading the coal from the cars; that it was the practice of railroad employees to warn workmen before a railroad car would be moved on the spur track and that on three occasions while he was working near or underneath the track, he had observed a railroad employee walk down the track to give warning to the workmen; that on six or seven other occasions, he had observed railroad employees give similar warnings; that every time he had observed empty cars being moved, the railroad had followed that procedure; and that frequently a bell or a horn would be sounded before the railroad removed empty cars.
Plaintiff went on to testify that at approximately 1 P.M. on the day of the accident a Monday a request was made by Nathaniel Cornwell, plaintiff's senior co-employee to assist in the unloading of coal from the cars; that on the previous Friday, six coal cars had been run onto the spur track by the railroad and that he had assisted in unloading them; that the coal had become frozen over the intervening weekend and that it had formed an arch extending up to 6 inches from the top of a cross beam located between the tracks, though the coal beneath the arch had been removed; that because the coal had frozen and because there were too few workmen to do the job, Cornwell asked plaintiff to help break up the coal by going down into the pits and using a long "breaking bar"; that Cornwell told him to stand off to one side and break it up; that he told Cornwell that the suggested procedure was too dangerous in that he might slip and have tons of coal fall upon him, and that Cornwell asked if he, plaintiff, knew of a better way of doing the job; that, thereupon, he told Cornwell he would obtain a safety belt he had seen at the plant and would "work something out with the belt," and that Cornwell responded that he, Cornwell, had never used a belt before; and that he told Cornwell that he didn't want to chance hurting himself.
Plaintiff, continuing, testified that after having obtained the safety belt, which was 2 inches wide, one-quarter of an inch thick, and had a "D" ring on one end, he returned and attached a rope to one end of the belt; that, after having tied the belt on, he attached the other end of the rope to a side railing adjacent to a walkway alongside the tracks; that he first stood on one track and attempted to break up the coal, but that, because of a lack of leverage, he was not too successful; that he then went down through an opening between the west rail and the walkway, and, while standing underneath the coal arch, attempted again to break it up; that working in that position was the safest, he felt, because a concrete abutment located near where he was standing would deflect the coal should it have fallen; that, again being unsuccessful in breaking the arch, he proceeded to position himself on his knees, on top of the arch, underneath one of the coal cars, securing the rope to a bar under the car; that, at this juncture, he had no reason to anticipate that the railroad would come onto the spur track with an engine without first warning him; that he chopped at the frozen coal with a long breaking bar for approximately 20 to 25 minutes; and that he was in plain view, in this position, to anyone walking along the spur track walkway.
Plaintiff testified further that he first realized that the railroad cars were about to begin moving when he heard a banging noise; that he then tried to loosen the safety belt, but was unable to do so because he had gloves on and that by the time he reached out again, the train had started moving, snapping him onto his back across a breaking beam; that he then scrambled up onto his knees and tried to loosen the belt again after he had removed his gloves, but was dragged over other beams; that, as he was being dragged, he threw up his hands and thereafter remembered nothing other than a blinding flash until he regained consciousness at the bottom of the pit into which he had fallen; that he didn't know how his hand had been run over by a railroad car, but that his hand felt "odd," and that when he looked at it, it was bleeding badly; that one of his co-workers jumped down into the pit, tied a rope for him, and lifted him out of the pit; that he was thereupon taken to a hospital; and that prior to the accident, his left hand had not been deformed in any manner.
Plaintiff's testimony further shows that subsequent to the accident, plaintiff underwent a series of nine operations on his left hand, which ultimately resulted in the amputation of the little, ring, and middle fingers of the hand; that prior to the injury, his yearly earnings were approximately $6,500; that, due to the injury, he was off of work some 18 or 19 months; that he then sought employment at several businesses, but was unable to secure same; that, during May of 1969, he began working on the university's security police force, had worked there steadily until the time of trial, had been promoted to the rank of sergeant, and was earning approximately $9,500 per year at the time of trial in the court below.
Dr. Louis Kolb, an orthopedic surgeon affiliated with Illinois Masonic and Cook County Hospitals at the time of trial, testified that he had examined plaintiff at Billings Hospital during the afternoon of November 6, 1967; that plaintiff had extensive injury to his left hand, with the fifth finger of the hand amputated just beyond the first knuckle; that the ring finger was amputated to the first joint of the finger, with skin loss over the long or little fingers of the hand; and that there was a laceration through the palm of the hand.
Dr. Kolb testified that he had X rays taken and that he decided surgery was necessary that day in order to prevent infection and to cover the bony parts of the hand with soft tissue; that surgery was performed; that on November 9, 1967, plaintiff had a skin graft taken from his left thigh, in order that the skin be grafted over the tip of plaintiff's left hand middle finger, but that only 50% of the graft survived; that plaintiff was subsequently sent home from the hospital and underwent physiotherapy; that later, plaintiff developed flexion contracture of one of the joints of his middle finger; and that certain procedures were employed to correct the contracture, but that it recurred.
Nathaniel Cornwell, plaintiff's senior co-employee on the day of the accident, confirmed plaintiff's account of many of the surrounding circumstances prior to the accident, and then testified that during his work experience with the university, each time empty coal cars were to be replaced on the spur track by full cars, railroad employees would walk up and down the track area to make certain none of the workmen was underneath any of the cars and to warn the workmen of the impending move; and that he had not instructed plaintiff not to use the safety belt and had not heard anyone else instruct him to use it, but had not cautioned plaintiff against using it.
William Gansar, at the time of the accident the assistant supervisor at the university's power plant, testified that during his 15 years' experience, he had observed the car removal practices of the railroad on numerous occasions; that he had never observed an occasion when railroad employees failed to walk up the walkway to warn the workmen; and that it had been the railroad employees' custom to do so.
John Segeler, who, at the time of the accident, was the superintendent of the university's power plant, testified that during his 38 years' experience, he could not recall an occasion when a member of a railroad crew failed to walk down the spur track trestle to see if the track was clear prior to moving out the empty cars.
Paul Jones, who was the engine foreman in charge of the railroad's crew on the day of the accident, testified that he had never seen workmen working underneath the cars; that if he believed it was necessary to sound a warning prior to moving the empty cars, he would request the engineer to do so; that there was nothing to prevent him from walking the walkway to check to see if workmen were laboring under the cars; that he attempted to ascertain whether anyone was under the cars by looking on both sides of the cars, but that he did not walk up to see if men were working underneath; that it never had been the custom and practice for any member of the railroad to walk along the walkway prior to removing cars; and that, in his 20 years' experience as a railroad man, he had never seen, nor heard of, a workman tying himself to the underside of a railroad car.
Donald Cleghorn, the train's engineer on the day of the accident, testified that members of the train crew would not go back and check to see if the trestle was clear on a regular basis and that no member did so on the day of the accident; and that railroad employees would walk along the walkway only if they observed someone working on the track area.
Gibson Kahn, at the time of the accident the assistant general yardmaster for the railroad, testified that during winter months, it was an almost daily occurrence that cars loaded with coal would be brought onto the university's spur track; that the railroad's crew always had orders "to take all the precautions in the world to not injure anyone or themselves either. That's a standard instruction on a railroad. * * * They look around to the best they can. They go back if it's safe to do so. * * * [I]f it's not safe to do so they take a reasonably safe course, they look ...