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Feigl v. Terminal R.r. Ass'n of St. Louis

JULY 1, 1975.




APPEAL from the Circuit Court of St. Clair County; the Hon. WILLIAM FLEMING, Judge, presiding. MR. JUSTICE KARNS DELIVERED THE OPINION OF THE COURT:

Plaintiff brought this action under the Federal Employers' Liability Act and the Federal Safety Appliance Act to recover damages for personal injuries which were alleged to have been caused either by the negligence of the defendant or by a violation by the defendant of the Safety Appliance Act (45 U.S.C. §§ 1-16, 51-59.) The jury returned a verdict for the defendant. Thereafter the plaintiff filed a motion for judgment notwithstanding the verdict or for a new trial. The trial court denied plaintiff's motion. Plaintiff appeals.

The facts pertinent to the occurrence out of which this case arose can be summarized as follows: The plaintiff, James Feigl, was an employee of the defendant, Terminal Railroad Association of St. Louis, and on December 15, 1968, the date of the occurrence, was working as a switchman. His crew had been sent to defendant's St. Louis yard to return a freight train from that yard to defendant's East St. Louis yard. At the St. Louis yard plaintiff and another member of the crew, James Huffman, were directed to connect all of the air hoses for the braking system of the train. They did this and then entered the caboose for the run to East St. Louis. Insofar as the plaintiff and Mr. Huffman were aware, there were no leaks in the air system. On the other end of the train the engineer, Virgil Ladd, detected a slight leak in the air system but did not feel it would be a problem in the proper functioning of the train; so the trip to East St. Louis was begun.

As the train proceeded to East St. Louis, it was necessary to go over a hill or viaduct. The single engine was unable to pull the train up the grade, so another engine was dispatched. The second engine, with its crew, came to the point where the train had stopped and coupled onto Mr. Ladd's engine. The engineer of the assisting engine was Curtis White.

With the two engines pulling, the train proceeded. When part of the train had been pulled over the crest of the hill, Mr. Ladd's engine ran out of fuel. This necessitated transferring the control of the air for the braking system to Mr. White's engine. Mr. Ladd had not informed Mr. White of the slight leak in the air system. According to Mr. White's testimony, he either did not detect any leak in the air system or did not detect leakage in an amount uncommon for a freight train.

As the train proceeded down the hill and began to pick up speed, Mr. White applied the train brakes to check the momentum of the train. As the brakes were applied, the train jolted or jerked. In the caboose the plaintiff, who was in the process of arising from a sitting position when the jolt occurred, was thrown to the floor.

Eventually the train reached the East St. Louis yard without further incident. Apparently no tests were run on the air system that night. At the trial, however, there was testimony from Mr. Feigl, Mr. Huffman, Mr. White, and Mr. Ladd as to what might have caused the jolt. There was also testimony by three expert witnesses, Dr. J.H. Deyton, Dr. G.R. Schoedinger, and Dr. L.J. Hill, who gave their conflicting opinions as to the nature and extent of the plaintiff's injuries.

Appellant contends that the trial court committed seven errors which relate to its conduct of voir dire, its rulings on admissibility of evidence, its rulings on instructions and its rulings on statement and arguments of counsel.

Appellant's first contention is that the trial court erred in conducting the voir dire examination in that it excused certain veniremen for cause, without any challenge for cause having been raised by the defendant, and in that it failed to excuse other veniremen with the result that plaintiff had to use his peremptory challenges to remove them. No record of the voir dire examination was made; and, therefore, no verbatim transcript of the voir dire examination is before this court. The appellant has included in his abstract an affidavit of his attorney which was filed with his post-trial motion and which lists specific parts of the voir dire as allegedly improper. Plaintiff does not contend that any objection was made to the conduct of voir dire at the time of trial.

While we recognize the importance of the voir dire examination and the necessity of conducting the examination properly in order to obtain an impartial jury, without a record of the voir dire examination before us we cannot say that the trial court acted improperly in conducting the examination. Supreme Court Rule 323(c) (Ill. Rev. Stat. 1973, ch. 110 (a), par. 323(c)) sets forth a method for providing a reviewing court with a record when no verbatim transcript has been made. The plaintiff could have employed this rule and provided this court with a record with which to consider this contention. As it is, we have no record and cannot say the trial court erred in conducting the voir dire examination. Richard v. Dauby, 123 Ill. App.2d 342, 259 N.E.2d 376 (1970); Augustine v. Stotts, 40 Ill. App.2d 428, 189 N.E.2d 757 (1963).

Appellant next contends that the trial court erred in admitting evidence of the habits and reputation of the engineer, Curtis White. Over appellant's objection, Virgil Ladd was permitted to testify that he had always known Curtis White to be competent in his operation of his engine. Also over appellant's objection, Curtis White was allowed to testify as to his own competency as an engineer and that he had never had any complaints about the way he handled his engine.

Appellant cites Lowry v. Chicago & North Western Ry Co., 248 Ill. App. 306 (1928), for the principle that evidence of habits or reputation are inadmissible where there are eyewitnesses to the event in question. Appellant also cites Stegmann v. Zachariah, 46 Ill. App.2d 7, 196 N.E.2d 703 (1964), and Hickey v. Chicago Transit Authority, 52 Ill. App.2d 132, 201 N.E.2d 742 (1964), for the principle that it is error to introduce evidence of reputation when reputation is not in issue. Finally, appellant cites Holtzman v. Hoy, 118 Ill. 534, 8 N.E. 832 (1886). In Holtzman it was held that even though a physician's skill is put in issue in a malpractice suit, his reputation is not in issue, and therefore reputation evidence is not admissible.

While we do not dispute the soundness of these principles where applicable, we feel that a different evidentiary problem is presented here. In his complaint plaintiff alleged that the defendant, Terminal Railroad Association of St. Louis, was negligent in permitting the engineer to operate an engine when it knew or should have known that the engineer was unfit and incapable by temperament or experience to operate the engine competently. The engineer at the time of the occurrence out of which this action arose was Curtis White. Thus, the issue was whether the defendant was negligent in employing Curtis White.

When the issue is negligence in employing an allegedly incompetent or unskillful employee, the character of the employee for competency and skill is put into issue. The character can be proved by specific incidents or by reputation, reputation being the community estimate of character. 1 J. Wigmore, Evidence §§ 202, 208 (3d ed. 1940); E. Cleary, Handbook of Illinois Evidence §§ 12.3, 12.4 (2d ed. 1963).

• 1 In Western Stone Co. v. Whalen, 151 Ill. 472, 38 N.E. 241 (1894), it was held that where the basis of plaintiff's action was the employment of an incompetent fellow servant by defendant, evidence of the general reputation of the servant could be admitted on the question of the servant's competency. In the case of Illinois Central R.R. Co. v. Morrissey, 45 Ill. App. 127 (1892), involving a situation not unlike the one out of which the instant case arose, a railroad employee was injured as a result of operation of the engine by the engineer. On the question of the degree of care exercised by the railroad in entrusting the engineer with the engine, the railroad sought to show the reputation of the engineer for operating the engine. The court stated:

"General reputation for competency and care at the time and place of employment, of such character as to imply information to the employer, is admissible as tending to disprove the alleged ...

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