APPEAL from the Circuit Court of Madison County; the Hon.
HAROLD R. CLARK, Judge, presiding.
MR. JUSTICE KARNS DELIVERED THE OPINION OF THE COURT:
The Norfolk and Western Railway Company, defendant, appeals from the judgment of the Circuit Court of Madison County entered on the jury's verdict in favor of Eugene L. Saunders in his action for damages brought under the Federal Employers' Liability Act (45 U.S.C. § 51 et seq.).
The railroad assigns as error on review the denial of its motion to dismiss on the grounds of forum non conveniens and certain alleged trial errors which we shall discuss separately together with the evidence necessary to decide the questions presented.
Saunders was employed as a maintenance-of-way employee and was engaged in the work of replacing ties, rails and right-of-way surface when injured on September 6, 1974, at a location near DeWitt, Missouri. Saunders and a co-employee, James Oliver, were assigned as operators of a spiker machine, a self-propelled mechanical device that drives spikes into ties as it moves along the rails.
While plaintiff and his co-worker would be seated on two seats on the spiker when operating the device, it was necessary to load spikes manually into a tray which was part of the machine. Kegs of spikes had been placed along the right-of-way at 50-tie intervals and to replenish the machine with spikes, the kegs would be rolled or carried by "long-handled timber tongs," a two-man carrying device, to a position in front of the spiker tray, immediately below the seats. Saunders and Oliver, positioned on either side of a keg, would then lift the keg, which weighed 200 pounds, approximately 18 inches off the ground to a position where the keg would rest on the edge or "lip" of the tray. The evidence was that because of the position of a seat post in the center of the tray, which allowed for one man operation of the machine, only one man could empty or dump a keg of spikes into the tray after the keg was so positioned. If both men attempted to dump a keg while positioned on either side of the keg there was a risk of their fingers and hands being injured on coming in contact with the center post and other parts of the apparatus.
At the time of the injury, plaintiff was in the process of dumping a spike keg into the tray. He immediately experienced pain in his back and leg, informed his co-worker, Oliver, and reported his injury to his foreman. Within a few days he received medical attention. Eventually, he was referred to a St. Louis orthopedic surgeon who performed a lumbar laminectomy on August 6, 1975. It was the opinion of his doctors that plaintiff was unemployable for maintenance-of-way work on the railroad or in any heavy industrial work. No question is raised concerning plaintiff's injuries or the amount of the verdict.
The railroad assigns as error the failure of the trial court to dismiss plaintiff's complaint on the ground of forum non conveniens. In its verified motion, the railroad stated that the occurrence giving rise to the suit occurred near DeWitt, Missouri, some 240 miles from Edwardsville, Illinois, where the action was filed; that the plaintiff as well as all occurrence witnesses were residents of Missouri residing in and around Moberly, Missouri, and all treating and examining physicians were residents of Missouri; that none of the witnesses were subject to the process of the Illinois courts, and in any event the expense and inconvenience of bringing these witnesses to Edwardsville, Illinois, would be great and would deny the railroad due process under the Constitution of the United States and the Constitution of the State of Illinois. The motion noted the existence of both Federal courts and Missouri courts of competent jurisdiction which sit at or reasonably near Moberly, Missouri. The motion concluded by stating that only plaintiff's attorneys resided in Madison County, Illinois, and that the trial of the cause in Madison County would be a burden and expense upon the court personnel and taxpayers of Madison County and the reviewing courts of Illinois and would delay the disposition of litigation of residents of Madison County. The motion concluded by appending to it a list of cases filed by nonresident plaintiffs generally occurring near Moberly, Missouri, represented by the same counsel against the same railway.
Plaintiff's suggestions in opposition to the railroad's motion, while not controverting the significant factual allegations, pointed out that while the differences in mileage between Moberly, Missouri, and Edwardsville, Illinois, is 170 miles, Moberly is approximately 60 miles from the seat of the United States District Court at Hannibal, Missouri, and 65 miles from the court sitting at Jefferson City, Missouri, so that the distance considerations were relatively insignificant. Further, that the occurrence, preoccurrence and post-occurrence witnesses were all railroad employees who the defendant could produce at trial without the necessity of process; that plaintiff's principal treating physician practiced in St. Louis, Missouri, closer to Edwardsville, Illinois, than to Moberly, Missouri, and that the testimony of other attending physicians could be obtained by deposition, the usual practice; and finally that plaintiff's attorneys were regional attorneys for the Railroad Brotherhood of Maintenance-of-Way.
• 1, 2 The plaintiff argues forcefully that the venue provision of the Federal Employers' Liability Act (45 U.S.C. § 56) confers an absolute power or privilege on the injured employee to bring his action in any State or Federal court where the railroad "shall be doing business at the time of commencing such action," and that, being a federally conferred "right," a State court has no power to reject or dismiss such an action on considerations of forum non conveniens. Language in many Federal cases indicate that the right of the injured employee to select his forum is a substantial right (see Boyd v. Grand Trunk Western R.R. Co., 338 U.S. 263, 70 S.Ct. 26, 94 L.Ed. 55 (1949); Skultety v. Pennsylvania, (S.D.N.Y. 1950), 91 F. Supp. 118), and we believe that in considering questions of forum non conveniens it is appropriate for trial courts to consider that the Act does express a policy that the injured employee has a substantial power to choose as a forum any court, State or Federal, where the railroad is doing business. However, we consider this precise question of the power of State courts to apply the doctrine of forum non conveniens to have been put to rest by the decision of the United States Supreme Court in Missouri ex rel. Southern Ry. Co. v. Mayfield, 340 U.S. 1, 95 L.Ed. 3, 71 S.Ct. 1 (1950). There the court held that State courts may decide the applicability of forum non conveniens to actions brought under the Federal Employers' Liability Act by nonresident plaintiffs to causes of action arising outside the forum State according to its own policy considerations, so long as this policy is likewise applied impartially to similar cases not arising under the Act.
• 3 Following Missouri v. Mayfield, the Supreme Court of Illinois decided Cotton v. Louisville & Nashville R.R. Co., 14 Ill.2d 144, 152 N.E.2d 385 (1958). After an exhaustive review of all Federal and State cases dealing with the question, the court held that the doctrine of forum non conveniens was applicable to Federal Employers' Liability Act cases arising "beyond the State's boundaries," but adopted a test that "only where it is shown that plaintiff is motivated purely by vexation and harassment will an F.E.L.A. case be dismissed." (14 Ill.2d 144, 174, 152 N.E.2d 385, 400.) In People ex rel. Chesapeake & Ohio Ry. Co. v. Donovan, 30 Ill.2d 178, 195 N.E.2d 634 (1964), the test enunciated in Cotton was disavowed. The court held that the proper factors to be considered were those enunciated in Whitney v. Madden, 400 Ill. 185, 79 N.E.2d 593 (1948), a libel action between nonresidents in which service had been obtained on defendant in Chicago while in transit. We consider, therefore, that Federal Employers' Liability Act cases are to be considered as any other case in the application of the doctrine of forum non conveniens, but that the appropriate considerations detailed in Cotton are still viable, except for the disapproved "vexation and harassment" test. In Cotton the court quoted with approval the language of Mr. Justice Jackson in Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508, 91 L.Ed. 1055, 1062, 67, S.Ct. 839, 843: "But unless the balance is strongly in favor of the defendant, the plaintiff's choice of forum should rarely be disturbed." Whitney v. Madden stated that in applying the doctrine of forum non conveniens, the court should consider whether it is apparent that the local forum was chosen for the purpose of "frustrating" the defendant; whether the defendant is "unduly burdened" or caused "great and unnecessary inconvenience"; or whether the court is unnecessarily burdened.
What was stated or suggested in Cotton, Donovan, Whitney and other cases, was emphasized in Fender v. St. Louis Southwestern Ry. Co., 49 Ill.2d 1, 273 N.E.2d 353 (1971), the most recent opinion of the Illinois Supreme Court to consider the doctrine of forum non conveniens in relation to a Federal Employers' Liability Act case; and that is, "The discretion to be exercised in ruling on a forum non conveniens motion is that of the trial court." (49 Ill.2d 1, 4, 273 N.E.2d 353, 355); that the trial court's decision on the motion will be overturned only if the reviewing court finds an abuse of discretion.
• 4 In Fender, the accident occurred in Dallas, 870 miles from Belleville, Illinois, where the action was filed and the plaintiff and occurrence witnesses were residents of the Dallas area. The trial court dismissed the action and its decision was upheld. The relevant facts present here have been recited. We would simply add that the trial of the case did not present the difficulties predicted by defendant in its motion. It would appear that plaintiff and defendant produced those witnesses deemed important at trial without difficulty. Dr. Schoedinger, plaintiff's principal treating physician, appeared at trial, and it is interesting to note that defendant did not choose to depose the two doctors who treated plaintiff at Moberly and Columbia, Missouri, nor Dr. Schoedinger, nor did defendant obtain a medical examination of plaintiff by a doctor of its choosing. We find no abuse of discretion in the trial court's denial of defendant's motion to dismiss for forum non conveniens.
Defendant assigns as error the granting of plaintiff's motion to amend at the close of plaintiff's case by adding as an allegation of negligence the defective design or condition of the spiker machine and the refusal of the trial court to allow counsel for defendant to interview its employee Oliver prior to his testifying on behalf of plaintiff. As these allegations of error are interrelated, we shall consider them together.
Plaintiff's complaint alleged as negligence, as here relevant, the failure to provide plaintiff a reasonably safe place to work and the failure to furnish "tie tongs" for lifting the kegs of spikes. At trial, plaintiff testified that he experienced pain in his leg and back, not as he and his co-worker Oliver were lifting the keg onto the rim of the spiker tray but after Oliver had stepped back and the plaintiff was in the process of dumping the spikes into the tray. Both plaintiff and Oliver testified this one man dumping procedure was necessitated because of the presence of a center seat post through the spiker tray. At the close of plaintiff's case, the court allowed plaintiff to add as an allegation of negligence defendant's failure "to remove the ...