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Clemons v. Alton & Southern R.r. Co.





APPEAL from the Circuit Court of St. Clair County; the Hon. ALVIN H. MAEYS, JR., Judge, presiding. MR. JUSTICE JONES DELIVERED THE OPINION OF THE COURT:

Rehearing denied February 10, 1978.

Plaintiff, Frederick Clemons, brought an action under the Federal Employers' Liability Act (45 U.S.C. § 51 et seq.) against his former employer, Alton & Southern Railroad (hereinafter, Railroad), seeking damages for alleged injuries to his back. The case was heard before a jury in the circuit court of St. Clair County. The jury found for defendant and judgment was entered accordingly. Plaintiff's post-trial motion was denied. He appeals.

Plaintiff directs our attention to numerous alleged errors at trial which he believes had the cumulative effect of depriving him of a fair trial.

He contends that throughout the trial the Railroad's counsel engaged in improper and prejudicial argument and questioning with respect to: (1) plaintiff's relationship with a former co-worker named Alvin Wren; (2) plaintiff's drinking habits; and (3) the existence of a fall other than those testified to by plaintiff. Plaintiff further contends that the trial court erred in not excluding as hearsay a portion of the evidence deposition of a doctor in which he read the consultation note of a psychiatrist concerning plaintiff.

The jury's function of weighing contradictory evidence and judging the credibility of witnesses in order to draw the ultimate conclusions as to the facts was paramount in this case. This was so because no one other than plaintiff witnessed or testified concerning the fall which he claimed to have suffered as a result of the Railroad's negligence and because there were considerable conflicts of opinion and diverse diagnoses concerning plaintiff's back condition among the six physicians who testified at trial.

• 1, 2 Because it is the classic function of the jury to decide these matters, its conclusion relating to negligence, causation, or any other factual matter will not be set aside merely because different conclusions could be drawn or because the judges feel that other results are more reasonable. (Finley v. New York Central R.R. Co., 19 Ill.2d 428, 167 N.E.2d 212; Oliver v. Peoples Gas Light & Coke Co., 5 Ill. App.3d 1093, 284 N.E.2d 432; Firestone v. R.H. Lincoln, Inc., 23 Ill. App.3d 320, 319 N.E.2d 60.) The jury's verdict here is not against the manifest weight of the evidence and should therefore not be set aside.

Plaintiff, however, properly notes that where the evidence is close and conflicting, the reviewing court must exert most careful and vigilant supervision to make certain that the verdict resulted from a fair and impartial trial (Jackson v. Chicago Transit Authority, 133 Ill. App.2d 529, 273 N.E.2d 748). Where the jury could have decided either way, any substantial error which might have tipped the scales in favor of the successful party calls for a reversal. (Littlefield v. Alton & Southern R.R., 96 Ill. App.2d 470, 239 N.E.2d 147; Kapelski v. Alton & Southern R.R., 36 Ill. App.3d 37, 343 N.E.2d 207.) Before deciding whether any of the claimed errors, singly or cumulatively, deprived plaintiff of a fair and impartial trial, we shall summarize the more important facts of the case.

Plaintiff Clemons began working for the Railroad in 1969. On December 24, 1970, he was employed as a "trackman" in the maintenance-of-way department. On that day seven men, including plaintiff and his foreman, MacArthur Hayes, were in the process of "gauging" the tract in an area where a train had previously derailed. This area was near Illinois Route 111 and a railroad trestle referred to as Bridge 4.

According to plaintiff's testimony, the crew worked only a half day because it was Christmas Eve Day. At approximately 11:30 a.m. the foreman directed plaintiff and co-worker Alvin Wren to return some tools to the Railroad's truck. The truck was parked on the opposite side of Bridge 4 from where the men were working.

In order to cross the trestle and reach the truck, plaintiff and Wren walked down the middle of the tracks. Wren was leading the way. Before reaching the trestle, plaintiff tripped and although he tried to catch himself he slipped and fell to the ground, hitting the lower part of his back. Wren only saw the plaintiff getting up. The two finished their task and subsequently rode in the truck with the whole crew back to the Cooper Building (a central hall) at noon.

The plaintiff did not report the accident at the Cooper Building because he did not think he was hurt and because the Roadmaster was not there. Neither did he tell his foreman about the fall even though he rode in the truck's cab on the trip back. Plaintiff acknowledged that it was a company rule that all accidents be promptly reported to one's foreman.

Plaintiff experienced pain in his back later that evening. He reported the fall to his foreman on his first day back at work, December 28, 1970, and was thereafter admitted to the Missouri Pacific Employees' Hospital.

Since at the time of the accident plaintiff did not look to see what he slipped on, he returned to the Bridge 4 area with his brother-in-law in late January 1971, in an attempt to determine what made him fall. He observed ties which were higher than others and an accumulation of diesel oil between the rails. He decided at that time that he had slipped on the diesel oil. Plaintiff recounted that he first saw the oil there about one or two weeks before the accident or about the time he started working in the Bridge 4 area.

The accuracy of plaintiff's testimony was assailed by cross-examination and by conflicting testimony of other witnesses.

On cross-examination it was revealed that on January 21, 1971, plaintiff gave a statement in his own words about the accident to a Railroad claims agent. The statement was taken down by a court reporter. Plaintiff recalled stating that he had tripped and fell while on the way to the truck to get a tool and that he did not know what he tripped over. An accident report in ...

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