APPEAL from the Circuit Court of Cook County; the Hon. IRVING
R. NORMAN, Judge, presiding.
MR. JUSTICE BURKE DELIVERED THE OPINION OF THE COURT:
Stanley Dollison brought an action based upon negligence and product liability against The Chicago, Rock Island & Pacific Railroad Company ("Rock Island"), the Penn-Central Railroad, and Unarco Industries, Inc. Dollison, a janitor for the Campbell Soup Company, suffered injuries when he was struck by a 700-pound steel load divider door which fell from its attachment located beneath the ceiling of a railroad boxcar. The Rock Island is the owner of the boxcar; Unarco is the manufacturer of the door; and the Penn-Central is the servicing railroad for the Campbell Soup loading docks in Chicago. After a lengthy trial, the jury returned a verdict of $75,000 for the plaintiff against the Rock Island. Defendants Unarco and Penn-Central received favorable verdicts. The trial court denied Rock Island's post-trial motion, and this appeal followed.
The Rock Island contends that: (1) the trial court erred in denying its motions for a directed verdict and for judgment notwithstanding the verdict; and (2) the verdict is against the manifest weight of the evidence. The Rock Island does not contend that the award of damages is excessive; that proximate cause is lacking; that plaintiff is guilty of contributory negligence; or that any tendered jury instruction or evidentiary ruling is erroneous. We shall review the evidence pertinent to Rock Island's appeal.
Leroy Bertram, the plaintiff's first witness, testified under section 60 of the Illinois Civil Practice Act. (Ill. Rev. Stat. 1973, ch. 110, par. 60.) Bertram has been employed by Unarco since 1967 and is currently vice-president of engineering of Unarco's Equipco Division. Prior to his employment by Unarco, Bertram was employed for several years by the Pennsylvania Railroad Company. Bertram is extensively experienced and schooled in mechanical engineering work relating to the design, construction, and maintenance of railroad freight cars. During his employment with the Equipco Division of Unarco, Bertram's duties related to the workings of load divider doors. With the use of photographs and diagrams, Bertram explained the operation and construction of the type of load divider door which fell upon the plaintiff.
A load divider system in a railroad boxcar consists of four rectangular steel doors each of which is approximately 8 to 9 feet tall, extends from floor to ceiling, and weighs approximately 700 pounds. Both upper corners of each of the four doors roll along tracks placed on the sides and in the middle of the car's ceiling. When a particular door is unlocked, it may be pushed or pulled along its tracks for the purpose of stabilizing or compartmentalizing the car's load. The length of each side of the boxcar's interior may be compartmentalized by two of the four load divider doors.
In the center portion of each door is an operating handle which is a lever device capable of being pulled out and down from an upright, recessed position. When the handle is in an upright position, the door is locked by spring-loaded pins which secure tightly to metal track located on the floor and ceiling of the car. Once the handle is pulled downward, the lock pins recess into the body of the door, enabling the door to be rolled along the ceiling tracks. When the door is unlocked, the only mechanism which supports the weight of the door in a standing position is an overhead carriage connection. The focus of this lawsuit is on the installation of the overhead carriage connection.
Above each door is a carriage body which has wheels at either end to guide the door along its ceiling tracks. The carriage body is affixed to the door itself by means of a connecting pin which is bolted to casting welded to the top portion of the door. The bolt which holds the connecting pin from the overhead carriage body to the door casting is called the pivot bolt. The pivot bolt is approximately 5 to 6 inches long and 3/4 inch in diameter. If the pivot bolt is securely assembled in place, the door will remain suspended from the carriage connection when unlocked. If the pivot bolt is missing, the door will fall from the carriage connection when unlocked. However, the spring-loaded lock pins will hold the door in an upright position if the pivot bolt is missing from the carriage connection.
The pivot bolt is properly assembled by being threaded through a washer, through one end of the door's casting, through the connecting pin from the carriage body, and out the other end of the door's casting. An adjustment washer followed by a lock washer, hex nut, and flat washer are placed in sequence on the bolt. A cotter pin is inserted in a hole at the end of the pivot bolt.
Bertram testified that the lock washer operates as a safety device to prevent the hex nut from loosening under the vibration caused by normal movement of the boxcar. When the hex nut is tightened against the lock washer, a "biting action" results which prevents the hex nut from loosening. In the event the hex nut vibrates loose, the cotter pin operates as a fail-safe device to prevent the hex nut from falling off the pivot bolt. The flat washer, located between the hex nut and the cotter pin, guards against wear on the cotter pin. A flat washer would not function as a lock washer and a lock washer would not function as a flat washer. If the flat washer were inserted inside the hex nut on the bolt assembly, the hex nut would not be held in place by compression. Conversely, if the lock washer were inserted on the outside of the nut on the bolt assembly, the lock washer could wear away the cotter pin rather than protect against the pin's destruction. If the cotter pin is missing from the assembly, the pivot bolt will become dislodged from the carriage connection causing the divider door to fall.
Bertram testified that on November 21, 1967, he met with representatives from Campbell Soup, the Rock Island, and the Penn-Central to inspect Rock Island Car 6407, the car in which plaintiff was injured. With the use of a ladder, Bertram examined all four carriage connections inside the car. Bertram discovered an improper sequence on the pivot bolt assembly in the carriage connections of the three doors remaining in a locked, standing position. The flat washer was found on the inside of the hex nut, where the lock washer properly belonged, and the lock washer was found on the outside of the nut, where the flat washer properly belonged. Bertram further noticed that the cotter pins were missing from two of the three bolt assemblies of the standing doors. Bertram was unable to find any of the missing cotter pins on the floor of the car.
Chester Berkley, the area manager at the Campbell Soup warehouse, testified that nothing inside car 6407 had been moved after Dollison was injured. Introduced into evidence were photographs of the car's interior which were taken by Berkley immediately after the accident. Berkley stated that testing each load divider door for moveability was one of Dollison's duties in preparing a boxcar for loading. However, Dollison was never instructed to inspect each door's carriage connection by use of a ladder. If one of Campbell's dock foremen determined that a particular boxcar was damaged or unfit for loading, the car would be switched out of the loading docks as a "bad order." The servicing railroad, the Penn-Central, would return the car to the railroad which owned the car.
Joseph Salapatek was examined by the plaintiff under section 60 of the Civil Practice Act. Salapatek is a Rock Island car foreman who supervises repair work performed on all cars at the Rock Island's Burr Oak Yards in Blue Island. In January or February, 1967, car 6407 was returned to the Rock Island at the Burr Oak Yards as a "bad order" car. The car's load divider doors, as well as the car's ends, sides, roof and outside ladders were damaged. Unarco advised the Rock Island that new load divider doors had to be installed because the damaged doors were not repairable. The damaged doors were removed and scrapped, and in May, 1967, new load divider doors for car 6407 arrived at the Burr Oak Yards. Salapatek received instructions from the Rock Island to place the new doors on the floor of car 6407 and ship the car to the Rock Island Yards in Biddle, Arkansas. The Rock Island conducts all major repair work on the exterior portion of its cars at the yards in Biddle, Arkansas.
During one point of his direct examination, Salapatek testified that it was the Rock Island's intention to install the new doors at the Biddle Yards. At another point in his direct examination, Salapatek stated that he did not know if it was the custom and practice of the Rock Island to replace the new doors at the Biddle Yards. Salapatek was impeached on direct examination with his deposition testimony given prior to trial wherein he stated that Rock Island employees would have installed the new doors as well as repaired the exterior damage of car 6407 at the Biddle Yards.
Salapatek kept in his possession for one year a ledger book which contains a record of the movement of car 6407. Pursuant to instructions from the Rock Island, the ledger book and Salapatek's written order relating to repair instructions for car 6407 were destroyed at the Burr Oak Yards. Salapatek stated that he had no further knowledge of any record pertaining to the repair work conducted on car 6407. Salapatek did not testify that any other records maintained by the Rock Island at Biddle, Arkansas were destroyed. Salapatek's testimony does not indicate that it ...