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Rogers v. Chicago & N.w. Transp. Co.





APPEAL from the Circuit Court of Madison County; the Hon. MOSES HARRISON, Judge, presiding.


This is an appeal by the Chicago and North Western Transportation Company, defendant, from a judgment entered on a jury verdict in the Circuit Court of Madison County in favor of the plaintiff, Roy Rogers, in the amount of $200,000. Defendant contends that: (1) the issue of the plaintiff's contributory negligence was erroneously withheld from the jury's consideration; (2) the trial court incorrectly ruled on certain objections to evidence; and (3) the closing argument of plaintiff's counsel was prejudicial to the defendant and denied it a fair trial.

The plaintiff has been employed as a carman by the defendant since May 1965, and, as a result of his seniority with the railroad, he came to hold a job in April 1975 as the assigned driver of a two-ton truck, which was furnished with a winch and hoist and used to rerail freight cars which had become untracked. On April 29, 1975, the plaintiff was assigned to drive the truck from Madison, Madison County, to the scene of a derailment at National City Yards with Norman Graham assigned as his passenger and assistant. After arriving at the National City yards, the two men discovered that the truck was inadequate for the job required of it and, consequently, they proceeded to return to Madison via Route 203. On their return trip the plaintiff, while driving at the speed of 40-45 mph, experienced a complete brake failure several hundred feet short of the intersection of Route 203 and Bend Road. With the air brakes gone, the plaintiff proceeded through a red light at the aforementioned intersection where he was unable to avoid a collision with the trailer of a truck which was proceeding through the intersection on Bend Road. As a result of the collision, the plaintiff suffered injuries to his back and left side. The plaintiff brought a negligence action against the defendant pursuant to the Federal Employers' Liability Act (45 U.S.C. § 51 et seq. (1970)).

The first issue on appeal is the question of the plaintiff's contributory negligence. At the commencement of trial on February 2, 1977, the defendant admitted its negligence was a proximate cause of the plaintiff's injuries, while reserving the questions of the nature and extent of the plaintiff's damages and the plaintiff's contributory negligence. Prior to the commencement of trial, the court granted the plaintiff's motion in limine to exclude all evidence concerning the plaintiff's alleged previous knowledge of the truck's defective brakes. The trial court reasoned that, as a matter of law, plaintiff's operation of the truck with such knowledge could only be classified as evidence of assumption of the risk and not as contributory negligence and as assumption of risk is not a defense under the Federal Employers' Liability Act (45 U.S.C. § 54 (1970)), the evidence was inadmissible.

In its offer of proof, the defendant showed that on April 26, 1975, another North Western employee, Oscar Gerstner, had experienced a serious brake failure with the truck when the air brakes had failed causing the truck to proceed through an intersection against a red light. The next day, Gerstner reported the incident to his local union chairman, Robert Graham, brother of Norman Graham, and asked that he inform North Western car foreman, Robert Manes, of the truck's unsafe condition and bar its continued use. On April 28, 1977, Gerstner had a similar conversation with Robert Graham in the presence of the plaintiff, who was also a union official. On that occasion Gerstner repeated the description of his experience with the truck and insisted that Graham and the plaintiff take action to make Manes aware of the truck's defective brakes. The defendant further showed in its offer of proof that during the plaintiff's outbound trip to the National City yards he had experienced difficulties with the truck's brakes. At that point the plaintiff allegedly stated to Norman Graham that the truck was not stopping as it should. The defendant's offers of proof were denied.

The defendant contends that evidence of the plaintiff's operation of the truck in a manner heedless of the known danger which was presented by the truck's defective brakes was improperly withheld from the jury's consideration. Under the F.E.L.A., neither contributory negligence nor assumption of risk are available as defenses to an action brought by a railroad employee (45 U.S.C. §§ 53, 54 (1970)); instead, the legislation is based on comparative negligence whereby an employee's contributory negligence shall be considered by the jury in diminution of the plaintiff's damages "in proportion to the amount of negligence attributable to such employee * * *" (45 U.S.C. § 53 (1970)). In this regard, it has been held that the slightest evidence of contributory negligence is enough for the defendant to reach the jury on that issue, just as the same standard is available to the plaintiff in attempting to show railroad negligence. Ellis v. Union Pacific R.R. Co., 329 U.S. 649, 652-53, 91 L.Ed. 572, 576, 67 S.Ct. 598, 600 (1947); Ganotis v. New York Central R.R. Co., 342 F.2d 767 (6th Cir. 1965).

Relying on Dixon v. Penn Central Co., 481 F.2d 833 (6th Cir. 1973), the plaintiff contended in the trial court, and now on appeal, that the question of the plaintiff's knowledge of the defective condition of the trucks brakes could only be termed in the nature of assumption of risk as plaintiff's employment required him to operate a defective motor vehicle. We disagree with the plaintiff and further find Dixon to be both factually and legally distinguishable from the case at bar. Dixon involved a railroad employee who was engaged as a tower operator and, as such, was required to periodically throw certain switches, one of which he observed to be faulty. He reported the defect, and railroad mechanics were dispatched to effect repairs at trackside while he remained in the tower where the switch was located. Subsequently, having been advised by the mechanics by means of a prearranged signal that the track switch had been repaired and in proper working order, Dixon attempted to operate the switch and sustained a back injury.

Under such circumstances, the Dixon court found that the employee could not have been said to be guilty of any conduct which might fairly be described as contributory negligence, as the evidence indicated he was injured while attempting to perform his assigned duties in operating a switch which he thought to be in working order. The court reasoned that the whole point of Dixon's attempt to throw the lever was to ascertain whether it was fixed which could not be determined unless it was, in fact, tested. The court ruled that if the employee could be guilty of any unreasonable behavior it could only be labeled as assumption of risk. The Dixon court further noted that there was no suggestion by the defendant that the employee's actions were unusual or that he was in any way negligent in interpreting the signals given him by the mechanics. While noting that assumption of risk is not a defense in F.E.L.A. cases, the court in Dixon recognized its interplay with the partial defense of contributory negligence stating:

"It is often difficult to decide whether a particular fact situation is classifiable solely as assumption of risk, solely as contributory negligence, or as some mixture of the two, `[T]he defenses * * * overlap, and are as intersecting circles, with a considerable area in common, where neither excludes the possibility of the other' W. Prosser, Law of Torts § 67, at 451 (3d ed. 1964)'." (481 F.2d 833, 835.)

See also Beanland v. Chicago, Rock Island & Pacific R.R. Co., 480 F.2d 109, 116 (8th Cir. 1973); Murray v. New York, New Haven & Hartford R.R. Co., 255 F.2d 42, 44 (2d Cir. 1958).

• 1 We are of the opinion that there was sufficient evidence to distinguish the plaintiff's situation from that of Mr. Dixon. Unlike Dixon, it appears under the offer of proof that defendant would introduce evidence that the plaintiff was aware that he was dealing with a seriously defective and unrepaired instrumentality. He allegedly had been advised that the truck had experienced a total brake failure and, as a union representative, urged to ground the vehicle until it could be repaired. In addition, there was evidence that on the day of the accident he experienced faulty brake operations in the course of the trip to the National City Yards, but he continued to operate the vehicle. We are not persuaded by the plaintiff's assertion that no evidence as to what procedures are to be taken by employees should they experience mechanical difficulty with company vehicles was presented by the defendant. The plaintiff's status as an employee does not deprive him of his individual responsibility to act in a manner conscious of his own safety and that of others. Based on the evidence excluded by the trial court, we cannot say that the plaintiff's conduct was reasonable, as a matter of law, so as to rule out a determination of contributory negligence.

Admitting that defendant was negligent in furnishing plaintiff a truck with defective brakes, the manner of the truck's operation including speed and other precautions should have been admissible for the jury's consideration in determining plaintiff's contributory negligence, if any. As to assumption of risk, the plaintiff, in a proper case, is fully protected by the giving of Illinois Pattern Instructions, Civil, No. 160.09, which instructs the jury that an injured railroad employee shall not be held to have assumed the risks of his employment where the injury resulted from the negligence of the railroad. Assumption of risk is not a rule of evidence, but a doctrine that says, in the master-servant context, that even though an employer is negligent, the employee who knowingly submits himself to a danger that he is aware of, may not recover. But the employee's conduct may also be evidence of contributory negligence. (See W. Prosser, Law of Torts § 68, at 439-453 (4th ed. 1971).) We therefore conclude that the trial court's exclusion of this evidence was error, and hold that the issue of the plaintiff's contributory negligence under these facts was for the jury to decide.

As we have already noted, under section 3 of the Federal Employers' Liability Act (45 U.S.C. § 52 (1970)) contributory negligence only serves to reduce a plaintiff's damages in proportion to the amount of negligence attributable to him. In the instant cause, the defendant has admitted liability and, consequently, we need only remand this case for a new trial as to damages. In this regard, we disagree with the plaintiff's contention, citing Thatch v. Missouri Pacific R.R. Co., 47 Ill. App.3d 980, 362 N.E.2d 1064 (5th Dist. 1977), that the defendant is not entitled to a new trial on damages, but only to a jury determination of the extent, if any, to which plaintiff's damages should be reduced by his own contributory negligence. The plaintiff misconstrues the holding in Thatch which included a stipulation by opposing counsel that a new trial on the issue of contributory negligence was all that was required. Moreover, in Thatch, this court was satisfied that the failure to submit the issue of contributory negligence to the jury did not affect its determination of the plaintiff's damages. Neither of these factors are present in the case at bar. We agree with the defendant that this error by the trial court, and others that we shall discuss, prejudiced the defendant's position in the previous trial and may have inadvertently invited the uninformed jury to punish the defendant for placing an unknowing employee in a defective piece of equipment. As a result, we must reverse and remand this cause for a new trial on the entire issue of the plaintiff's damages.

Having concluded that there will be a retrial on the question of damages, we need to address the other points raised by the defendant to ensure that no further error will occur after this case is remanded. The defendant's second contention is that the trial court erred in allowing the plaintiff to introduce evidence of the cost of his medical expenses, since all of his expenses had been previously paid by the defendant or its insurer, the Travelers Insurance Company, under Policy GA-23000 which is an industry wide health and welfare plan. Despite the defendant's documentation evidencing the source of the payments for the plaintiff's medical expenses, the trial court treated the payment as a collateral source and permitted the plaintiff to introduce evidence of the cost of his medical care, while barring the railroad from advising the jury of the prior payment. The defendant's position on this matter, and not disputed by the plaintiff, is simply that article V, section 1(d)1, of the collective bargaining agreement of August 1960, still in effect today, states that the premiums paid by the defendant for insurance benefit payments are not considered as wage equivalents. This means that the money used to pay the premiums would not otherwise be paid ...

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