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Liepelt v. Norfolk & Western Ry. Co.

OPINION FILED JULY 5, 1978.

KANDYTHE J. LIEPELT, ADM'R OF THE ESTATE OF DELROY LIEPELT, DECEASED, PLAINTIFF-APPELLEE,

v.

NORFOLK AND WESTERN RAILWAY COMPANY, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. REGINALD J. HOLZER, Judge, presiding. MR. PRESIDING JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT:

Kandythe Liepelt (plaintiff), as administrator of the estate of her husband, Delroy Liepelt, deceased, brought this action under the Federal Employers' Liability Act to recover damages from his employer, Norfolk and Western Railway Company (defendant), for his death in the course of duty. A jury awarded plaintiff $775,000. Defendant appeals.

Defendant contends that the trial court erred: in denying defendant's motion to dismiss the action on the ground of forum non conveniens; in allowing the jury to consider an Indiana statute as evidence of negligence since that statute had been preempted by Federal action; in directing a verdict for plaintiff on the issue of contributory negligence; in refusing its instructions on sole proximate cause; in deeming certain facts admitted and in prohibiting the defendant from explaining those facts at trial; in refusing to allow the jury to consider the impact of Federal income taxation on the issue of damages; in instructing the jury that it could award damages for loss of care and guidance for the children of the deceased when no evidence of the value of these services was presented; and that the damages are excessive.

The evidence shows that on November 22, 1973, the decedent was working as a fireman on a freight train owned and operated by the defendant. On that day, decedent was on board defendant's train, Extra 2917, travelling from Montpelier, Ohio, to Chicago. The train was made up of 140 cars and was approximately 1 1/2 to 2 miles long. It was pulled by three diesel locomotives. The decedent rode in the cab of the lead locomotive with the engineer, Owen Perkins. The decedent sat on the left side of the cab and Perkins sat on the right. The remaining members of the crew were Macadoo Maynard and Terry Northrup, brakemen; Clayton Manly, flagman, and Roger Shepard, conductor. Maynard and Northrup rode in the second locomotive and Manly and Shepard rode in the caboose.

Defendant's rules require that whenever a third seat is available in the lead locomotive a brakeman is required to ride there. One of his duties is to act as an additional lookout. There was no third seat available in the lead locomotive of Extra 2917. Decedent and the engineer were alone in the cab.

The entire train had been inspected by defendant's personnel before it left Montpelier. It was found to be in good condition. However, there is testimony that all three diesel locomotives "were old and worn out." The diesel engines operate an air compressor which supplies air pressure to operate the brakes. At the head of the train the pressure was approximately 75 pounds. At the rear of the train the pressure dropped off. A minimum of 60 pounds is required throughout the train for the brakes to operate effectively. Shortly prior to the occurrence Perkins, the engineer, had radioed the caboose concerning "trouble with the air."

Each locomotive has two 200-watt headlights. The beams from these lights must be capable of illuminating the image of a man at least 800 feet in front of the train. There is evidence that the fireman, as well as the engineer, has a duty to keep a lookout as the train proceeds. Levers for applying the brakes are at the right of the cab in front of the engineer. The fireman also has an emergency brake lever on his side of the cab.

The track on which Extra 2917 travelled is a single, main line, maintained and operated by the defendant. In order for two trains travelling in opposite directions to pass each other it is necessary for one of them to enter a parallel track, called a "siding" or "passing track." The train on the passing track is obliged to wait until the other train has passed before reentering the main track. Entry to these sidings is made possible by a switch at either end of the siding. The switch must be opened manually to permit entry to the siding from the main track.

Between Montpelier and Chicago one such siding is located near Wyatt, Indiana. This siding runs east/west for approximately 4000 feet. It is immediately to the south of the main line track. In addition to being used as a passing track, this siding is connected to an auxiliary track called a "spur." This spur runs adjacent to a grain elevator, enabling grain cars (hopper cars) to be positioned directly under the elevator for loading.

The defendant's rules prohibit the storing of cars on a siding unless "authorized by the superintendent or in emergency. When so obstructed, the train dispatcher must be notified." On November 22, 1973, the siding at Wyatt contained seven loaded hopper cars weighing 690 tons. No authorization had been issued and no emergency existed. The defendant's dispatcher in Montpelier stated that he was aware the Wyatt siding was used to store loaded hopper cars during the busy season. The cars were positioned so that their eastern most end was 198 feet west of the east switch. Thus, there were 198 feet of track separating the east end of these parked hopper cars and the main track.

All switches are equipped with a position indicator or banner from which the train operators can determine whether the switch is open or closed. The testimony concerning the number of banners employed on the east switch at Wyatt is somewhat contradictory. However, it appears from the exhibits and the testimony of Maynard, a brakeman, that the signal consisted of two aluminum banners positioned one above the other on a pole over the switch. The top banner was oblong, 15 1/2 inches wide and 6 inches high. It was covered with red reflectorized paint and stood approximately 7 to 9 feet in the air. The lower banner was 15 inches square and was also red, though not reflectorized.

Both banners faced in the same direction. When the switch was closed the banners would be parallel to the main track and therefore not visible to trains approaching on that track. When the switch was open the banners would turn to face trains approaching from the east. A red signal, therefore, indicated that the switch was open.

There was testimony that the banners on the east switch were dirty from smoke and dust. Maynard testified that he visited the site of the occurrence "a couple of days" thereafter. The banners were "really dirty" and, in daylight, they could hardly be seen from a distance of 700 feet. The banners had also been partially damaged, apparently by shotgun blasts. Northrup, a brakeman, testified that there were high weeds and brush in the area which made the switch position indicators "hard to see."

The switch itself was padlocked. The lock could not be located the night of the occurrence but was found the following day in a ditch adjoining the track. The lock was jammed in a partially open position and bore marks of an attempt to force it open. The switch itself had been opened and the red banners were facing the westbound traffic. A witness for the defendant testified that he had operated the switch some 3 days prior to the occurrence and found both the lock and the switch to be in good working order. He had locked the switch after its use.

The track in the immediate area of the occurrence was described by witnesses as "rough" and "run down." The ties "were in bad condition" and "many or most" of them were "old, rotten, splitting and cracked." Many spikes were loose. The ballast, which is made up of crushed stone and covers the ties, was in poor condition causing the train to rock "severely" from side to side. The speed limit on this stretch of track had been reduced from 50 to 40 miles per hour.

Defendant's track supervisor testified that he inspected the track the day after the occurrence and took no exception to the condition of the track or the visibility of the signal. A brakeman employed by defendant stated that he found no vegetation in the area of the switch when he operated it 3 days prior to the occurrence.

As Extra 2917 approached the Wyatt siding, it was travelling at approximately 32-37 miles per hour. It was early evening, between 5:30 and 6 p.m. There was little light except for a faint glow in the western sky. Terry Northrup, a brakeman, testified that he heard the brakes go into emergency operation. He saw the first locomotive veer sharply to the left and then saw 7 or 8 hopper cars directly in front of it. There was a terrible crash. At the moment of impact the train was travelling at approximately 30 miles per hour. The first hopper car was forced on top of the lead locomotive, shearing the cab. The decedent and the engineer were killed instantly.

The trial court denied defendant's motion to dismiss based upon forum non conveniens. Defendant is a Virginia corporation with its principal office in that State. It conducts business in Illinois only as a part of its line running from various points in Ohio to Chicago. The decedent lived in Ohio and his estate is being probated there. The occurrence took place near Wyatt, Indiana, some 90 miles from Chicago.

Defendant's motion was properly supported by affidavit. The affidavit showed that the proposed witnesses lived in Ohio, Indiana, Michigan or Virginia. No occurrence witnesses lived in Illinois. Defendant shows in its brief that 21 witnesses testified of which only 2 lived in Illinois. All other witnesses were obliged to travel to Chicago.

Plaintiff filed an answer to the motion attacking its sufficiency and asserting her right to choice of forum and to trial counsel practicing there. Briefs were filed in the trial court by both sides.

In our opinion, this issue is decided by Saunders v. Norfolk & Western Ry. Co. (1977), 54 Ill. App.3d 307, 369 N.E.2d 518. That case presents many facts which coincide with the situation at bar and the doctrine of forum non conveniens is given comprehensive treatment. (Saunders, 54 Ill. App.3d 307, 309-12.) It is unnecessary for us to repeat the principles and authorities noted there.

It is sufficient for us to note that although the States have power to apply the doctrine of forum non conveniens to actions arising under the Federal Employers' Liability Act, there are strong considerations of policy which confer on plaintiffs in these cases the right and privilege to choose any forum in which the defendant railway is doing business. Furthermore, "the trial court's decision on the motion will be overturned only if the reviewing court finds an abuse of discretion." Saunders, 54 Ill. App.3d 307, 311.

• 1 Attempting to weigh and balance all of the factors on both sides, we conclude that the trial court did not abuse its discretion in denying the motion. This result is supported by a review of the record in this case. Able counsel for the defendant presented a spirited and thorough defense. We cannot find any evidence of handicaps or problems arising which hampered the defense because of the choice of forum. We approve the ruling of the trial court in this regard.

The second issue raised by defendant concerns the doctrine of Federal preemption. (U.S. Const., art. VI, cl. 2.) At the time of this occurrence, section 1 of the Indiana Switch Light Act (Ind. Code § 8-8-10-1 (Burns 1976) (amended 1977, P.L. 106, § 2)), read:

"Every steam railroad company operating wholly or partly in the state of Indiana shall place and maintain upon each switch in said state that is connected with the main track a signal light, attached in such manner to the moving panel of such switch that it will indicate safety when such switch is set to such main track, and that will indicate danger when such switch is not set to the main track. Said light shall be kept brightly burning constantly between the hours of sunset and sunrise, and on such days or parts of days as are dark and foggy."

At trial, plaintiff was allowed to introduce the existence of the Switch Light Act over defendant's objection. Also, as we will later discuss, the trial court included this act in one of the jury instructions.

In 1970, Congress passed the Federal Railroad Safety Act (45 U.S.C. §§ 421-441 (1970)) (FRSA). Under the FRSA the Secretary of Transportation (Secretary) is authorized to promulgate rules, regulations and standards for all areas of railroad safety. (45 U.S.C. § 431 (1970).) Section 205 of the FRSA (45 U.S.C. § 434 (1970)), concerns the preemption of State laws. That section reads:

"The Congress declares that laws, rules, regulations, orders, and standards relating to railroad safety shall be nationally uniform to the extent practicable. A State may adopt or continue in force any law, rule, regulation, order, or standard relating to railroad safety until such time as the Secretary has adopted a rule, regulation, order, or standard covering the subject matter of such State requirement. A State may adopt or continue in force an additional or more stringent law, rule, regulation, order, or standard relating to railroad safety when necessary to eliminate or reduce an essentially local safety hazard, and when not incompatible with any Federal law, rule, regulation, order, or standard, and when not creating an undue burden on interstate commerce."

The Secretary adopted a series of rules on track safety standards. (49 C.F.R. § 213 (1976).) Standard 213.135 is entitled "Switches." It contains performance standards for eight distinct aspects of a switch. Subpart (g) of Standard 213.135 states, "[e]ach switch position indicator must be clearly visible at ...


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