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Thatch v. Missouri Pacific R.r. Co.





APPEAL from the Circuit Court of St. Clair County; the Hon. J.F. CUNNINGHAM, Judge, presiding.


Mr. PRESIDING JUSTICE CARTER delivered the opinion of the court:

This is an appeal by the Missouri Pacific Railroad Company, defendant-appellant, from a judgment entered on a jury verdict in the Circuit Court, St. Clair County, in favor of plaintiff-appellee, William Thatch, in the amount of $249,200. Defendant contends that: (1) the issue of plaintiff's contributory negligence was a question of fact to be determined by the jury, and (2) plaintiff's counsel in his closing argument prevented defendant from receiving a fair trial, and (3) the verdict was excessive.

On August 6, 1969, plaintiff was working as a carman for defendant railroad. Plaintiff, his foreman and another employee were moving railroad cars with a motorized forklift and chain. A railroad axle with a wheel on either end was laid across the forks of the forklift to increase the weight of the forklift for added traction. The wheels extended beyond the sides of the forklift. There was a narrow concrete platform adjacent to the track with numerous potholes in it. The accident happened while the plaintiff and his foreman were walking back for another car, and the forklift was moving behind them in the same direction. One wheel of the forklift went into a hole and one of the wheels across the forks of the forklift struck the plaintiff in the back causing injury thereto. Plaintiff brought a negligence action pursuant to the Federal Employer's Liability Act. 45 U.S.C. § 51 et seq.

• 1 The first issue on appeal is the question of plaintiff's contributory negligence. The record shows that plaintiff and his foreman were walking down a concrete platform to get another car and the forklift was coming behind them in the same direction. Plaintiff's own testimony during the trial was:

"* * * I know it is close enough — when I was walking at the side of Mr. James [the foreman] — I am there behind him in there, and think the tractor would pass, but I didn't move over far enough; this is where the wheel struck me."

At the close of the trial the court refused to submit the issue of plaintiff's contributory negligence to the jury. Under the F.E.L.A., plaintiff's contributory negligence would not bar recovery, but would reduce plaintiff's damages in proportion to the relative negligence of plaintiff and the railroad (45 U.S.C. § 53).

"The very essence of [the jury's] function is to select from among conflicting inferences and conclusions that which it considers most reasonable." (Tennant v. Peoria & Pekin Union Ry. Co., 321 U.S. 29, 35, 88 L.Ed. 520, 525, 64 S.Ct. 409, 412.) This assertion is particularly applicable to cases decided under The Federal Employer's Liability Act. In Rogers v. Missouri Pacific R.R. Co., 352 U.S. 500, 1 L.Ed.2d 493, 77 S.Ct. 443, the Supreme Court addressed the legislative history of the F.E.L.A. as it pertained to the function of the jury. The original 1906 Act provided that: "All questions of negligence and contributory negligence shall be for the jury." (34 Stat. 232; Hearings before the Senate Committee on Interstate Commerce on H.R. 239, 59th Cong., 1st Sess. 68-69.) In 1908 a provision that "all questions of fact relating to negligence shall be for the jury to determine," was proposed but never adopted, the view being that the Seventh Amendment already encompassed this proposition. (Hearings before the Senate Committee on Education and Labor on S. 5307, 60th Cong., 1st Sess. 8-9, 45-46.) The court goes on to state that the right to a jury determination is an integral part of the Congressional scheme under the F.E.L.A., and of course, the rule must be the same whether the issue is the railroad's negligence or the plaintiff's contributory negligence.

• 2 Illinois decisions have followed this mandate as to the essence of the jury function both within and without F.E.L.A. cases. The rule in this state was stated by the Supreme Court of Illinois in Pedrick v. Peoria and Eastern R.R. Co., 37 Ill.2d 494, 510, 229 N.E.2d 504, 513-14:

"In our judgment verdicts ought to be directed and judgments n.o.v. entered only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand."

While the court in this case expressly referred to the direction of verdicts and judgments n.o.v., it maintained the flexibility of the rule by defining the logical consistency upon which it was predicated:

"Logic demands that one rule govern both the direction of verdicts and determination of the presence or absence of negligence or contributory negligence as a matter of law, for in both situations the issue is whether a court or the jury should decide the negligence issue." (37 Ill.2d 494, 503; 229 N.E.2d 504, 510.)

Plaintiff cites Morran v. Pennsylvania R.R. Co. (3d Cir. 1963), 321 F.2d 402, and Knierim v. Erie Lackawanna R.R. Co. (2d Cir. 1970), 424 F.2d 745, to support the argument that unless there is an evidentiary basis to support a finding of contributory negligence, the court should take the issue from the jury. In Morran the evidence revealed that plaintiff-employee of the railroad fell through a wooden plank used as a walkway and was injured. The evidence further showed that only if the plank was inspected from underneath would the dangerous deterioration become apparent. In Morran there was a hidden danger and there was no evidence which pointed directly or indirectly to any defect in the planking which the employee could have seen.

In Knierim two trains proceeding in opposite directions on the same track were involved in a head-on collision. Defendant railroad alleged contributory negligence against the injured crewmen who were suing under the F.E.L.A. The evidence established that it was the duty of the conductor and not the plaintiff to flag the oncoming trains and to call the dispatcher to obtain clearance for the movement of the trains. The Court of Appeals for the Second Circuit held that the issue of contributory negligence was correctly withheld from the jury as a matter of law. These cases can be distinguished from the ...

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