APPEAL from the Circuit Court of Cook County; the Hon. JAMES
A. GEROULIS, Judge, presiding.
MR. JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:
The defendants appeal from a $250,000 judgment entered after a trial by jury in an action brought by plaintiff for personal injuries sustained while on the premises of General Mills in the course of his employment as a switchman for Belt Railway. Plaintiff's complaint charged General Mills with common-law negligence and predicated liability against the Belt Railway under the provisions of the Federal Employers' Liability Act. Upon appeal, each defendant contends that
(1) it was entitled to judgment on the issue of liability as a matter of law; and
(2) the verdict of the jury was excessive.
Defendant General Mills further contends that
(3) it is entitled to a new trial as a result of numerous trial errors which include
(a) error in the admission into evidence of posed photographs;
(b) error in permitting the plaintiff to testify concerning matters of a speculative nature;
(c) error in admitting into evidence as past recollection recorded the prior written statement of a witness who had previously testified from memory;
(d) advising the jury of the plaintiff's allegations via an improperly argumentative "issues" instruction; and
(e) prejudicial error arising from the closing argument of the plaintiff's attorney.
The accident occurred on September 2, 1966, at which time plaintiff was 46 years of age, a high school graduate with 3 years of college. He had been employed by Belt Railway as a switchman since 1955, and testified that he was very familiar with the requirements of his work, which included alighting from moving trains and running along uneven ground surfaces. Prior to the accident plaintiff had not experienced any serious medical problems with either his back or his legs.
The plant where the accident occurred was operated by General Mills at 104th Street and Muskegon Avenue, in Chicago; the actual site was the northwest corner of a warehouse a short distance inside the gate. The north wall of the warehouse ran parallel to a railroad track (track No. 6), located about 5 feet from the building. The ground between the warehouse and the track was covered with gravel. Doors were located at various points along the north wall through which materials could be loaded and unloaded from boxcars on the track. Immediately west of the warehouse was a large open area surfaced with blacktop on which construction pilings had been sunk at several places. The holes containing the pilings were approximately 6 feet in diameter and 30 feet deep. The closest one was located 48 feet west of the warehouse and about 2 feet south of track No. 6 which extended from the fenced gate at the entrance of the plant to the warehouse. Immediately before the point where the track runs parallel to the north wall of the warehouse the track curves to the left.
The procedure for removal of boxcars from track No. 6 by train crews of Belt Railway was as follows: a train crew must wait outside the plant gate until a General Mills plant guard admits them after he is given a green light signal by a supervisor. Before this signal is given a General Mills "car cooper" orders all General Mills employees off the boxcars which are to be moved; he then closes and locks all the doors of the cars. Belt Railway employees are not permitted to close the doors of boxcars which have been loaded.
On the morning of September 2, 1966, there were five boxcars on track No. 6 adjacent to the warehouse doors; the one next to the westernmost door (spot No. 1) was a center-loading "plug type" boxcar. The door was located at the center of the car and was opened by sliding it on a rail parallel to the side. The door is closed and locked by sliding it over the opening and moving two handles 2 1/2 feet in length situated on the boxcar door in tandem. When the door is locked these handles are flush against the side in a horizontal position. When not locked the door protrudes out on its rail about 8 to 10 inches from the side of the boxcar and the two locking handles hang down from the door. The plug type boxcar at spot No. 1 on the day of the accident had a stenciled warning on its side that the boxcar was not to be moved unless the door was closed and locked.
Plaintiff was a member of a three-man train crew summoned to General Mills plant at 1:30 p.m. on September 2, 1966. They were instructed to remove all 5 boxcars on track No. 6 and to replace 4 of them with other cars. The fifth boxcar, the plug type, was to be reset at its prior position, No. 1. Plaintiff, with Wilbur Patterson, the conductor in overall charge of the crew, and Harry Olsen, the engineer, waited at the gate until they were admitted into the plant by the guard after the green signal had been given. Olsen then coupled the engine onto the plug type boxcar and pulled out of the plant with all five boxcars in tow. Before removing them, Patterson walked the length of the cars to inspect the couplings and doors. He testified that correct procedure dictated that boxcars are not to be moved with open doors, and that he saw no doors open at that time. After dropping off four boxcars outside the plant and coupling onto four others, the crew then pushed the four replacements back into the plant with the plug type boxcar to be reset, still coupled immediately in front of the engine. The movements outside the plant took 10 to 15 minutes; the train then entered the plant and moved east onto track No. 6. Patterson rode on the car farthest from the engine, and plaintiff rode on the south side of the second car from the engine. Plaintiff testified that he was looking in the direction the train was moving, and that during the entire time the crew was working on the move he never saw any boxcar doors open and unlocked.
On the return move to the warehouse, plaintiff's job was to alight at the northwest corner of the building and pass signals from Patterson to Olsen. This would appear necessary because boxcars can vary in length from 40 to 60 feet; an engineer's position is on the right side of the engine cab; and track No. 6 curved to the left just before reaching the warehouse. Plaintiff testified that at approximately 1 1/2 car lengths from the northwest corner of the warehouse a General Mills supervisor came out yelling and waving his arms at him. Plaintiff stated that he normally would have alighted at the northwest corner, but because of the supervisor's actions he got off the boxcar immediately, as a safety precaution. The train was moving at an estimated speed of 2 to 6 miles an hour, and because of his momentum plaintiff had to jog along with it to keep from falling. He testified that after jogging a few feet he came upon a hole in the ground; to avoid stepping into it he stopped and backed up to his left, at which time he was struck in the back at his waist as the plug type boxcar passed him. Although he was not knocked down he was pushed forward several feet past the hole he had tried to avoid.
Plaintiff further testified that after the occurrence, Roy Uddman, the supervisor who had yelled at him, told him he had "hollered" to him because one of the boxcars in the train was the wrong length. Plaintiff stated that he never looked at the door of the plug type boxcar after the accident, but was taken in the engine to a Belt Railway yard for medical treatment. On cross-examination he estimated that the hole he had tried to avoid was 8 to 10 inches deep.
Roy Uddman testified. When he came out of the warehouse plaintiff was already off the train and standing about 2 feet from the building. He called to him and plaintiff turned toward him; Uddman did not see plaintiff struck by anything but he did see him arch forward at that point. After plaintiff told him he had been hit Uddman took a photograph of the plug type boxcar. The door of the car was not locked, but the door handles were hanging down flush against the side.
Harry Olsen testified. He could not recall the accident other than what he had stated in a report he completed shortly after it occurred. After being shown the report Olsen testified substantially the same as recorded. He stated that he could see down the south side of the train when it was moving on a straight portion of track; that the door on the plug type boxcar was open and it was the door which struck plaintiff in the back. The record is silent as to when Olsen first observed that the door was open or whether plaintiff was already on the ground when Uddman began calling to him, although Olsen did state that he observed Uddman calling to plaintiff before he was struck by the door. Olsen further stated that the train was moving at a speed at which it could have been stopped within a couple of feet, and that he did in fact so stop the train after plaintiff was hit. At the conclusion of the testimony plaintiff offered ...