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Manninger v. Chicago & Northwestern Transp.

OPINION FILED OCTOBER 12, 1978.

PHILLIP MANNINGER, PLAINTIFF-APPELLEE,

v.

CHICAGO AND NORTHWESTERN TRANSPORTATION COMPANY, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Madison County; the Hon. HORACE L. CALVO, Judge, presiding.

MR. JUSTICE KUNCE DELIVERED THE OPINION OF THE COURT:

The defendant, Chicago and Northwestern Transportation Company, appeals from a judgment entered on a jury verdict awarding plaintiff $1,500,000.

This is an action in negligence commenced on October 30, 1974, against the Illinois Terminal Railroad, Victor Terrando, and American Hoist and Derrick Company. The Chicago and Northwestern Transportation Company (C & NW) was added as a defendant approximately 14 months after plaintiff was injured. After the close of plaintiff's evidence, the court granted motions for a directed verdict for all defendants except C & NW. C & NW alleged that the trial court erred in failing to grant its motion for judgment n.o.v. and that certain actions by plaintiff's counsel deprived it of a fair trial.

At the time of the accident, January 7, 1974, plaintiff was 28 years of age, married and employed by Moss-American, a subsidiary of Kerr-McGee.

C & NW's answer to co-defendant Illinois Terminal's interrogatories listed T. Bridges, F. Chrome, C. Hughes and R. Noah as the train crew which delivered the 17 railroad cars to Kerr-McGee's railroad yard on January 6, 1974. In an amended answer to plaintiff's interrogatories, C & NW listed J.A. Ray, C.L. Voyles, D.C. Voyles, and Charles Hootsil as the crew which delivered the 17 railroad cars.

Kerr-McGee treats railroad ties, which are brought to its Madison, Illinois, plant for processing with creosote. At the time of the accident, plaintiff had been employed by Moss-American for approximately three weeks, the first two of which were spent in the creosoting plant while the last week was spent working in the railyard. Untreated railroad ties are brought to the plant in gondola cars. The untreated ties are unloaded from the gondola car by means of a movable crane which can also function as a train engine and move up to four cars along the tracks. The ties are stacked in the yard for grading. When the ties are to be treated, they are loaded on small railroad cars, called dinkeys, by an immovable crane. These cranes are also called cherry pickers. When working in the yard, plaintiff's duties were to place cables around the treated ties in order to put them on the gondola cars and to move the loaded cars onto the dowell track to be picked up by the railroads. The dowell track curves in a semicircular manner from the main track at a point near the wash house and back to the main track at a point near Kerr-McGee's north end gate. The untreated ties usually enter Kerr-McGee's yard through the south gate, and cars containing the treated ties are usually picked up at the north end. When the creosoting process has been completed, a railroad is asked to bring the desired number of empty cars so that the treated ties can be placed in them. These empty cars are usually brought into Kerr-McGee's yard through the north gate. Sometimes the railroads are instructed to put the empty gondola cars on a certain track. At other times, the empty cars are placed inside the entrance of Kerr-McGee's yard, and Kerr-McGee moves or spots the cars where it wants them.

The main track between the two switches of the dowell track is approximately 1000 feet. The size of railroad cars varies between 41 feet 6 inches to 52 feet 6 inches. The south end of the main track is crossed by a road built for trucks hauling processing material. Approximately 20 of the small-sized railroad cars could be placed on the main track without fouling or blocking the switch at the north end or the construction road at the south end. A chock must be placed under the cars at the north end of the main track as cars at that point have a tendency to roll north toward the main gate if a chock is not properly placed under the wheels. C & NW was a signer of the Consolidated Code of Operating Rules in 1967. Rule 808e of said rules provides that when switching and placing railroad cars, they must be left where they will fully clear passing tracks or adjacent tracks and where they will not cause injury to employees riding on the side of cars.

On January 7, 1974, plaintiff commenced work by 10 a.m. Many workers did not come to work at the Kerr-McGee plant because of a heavy snowfall the previous night which made streets and roads in the area slick. The dinkey cars kept derailing, and plaintiff's crew, consisting of himself, the crane operator Brandt, and another man, Brown, rerailed the dinkeys. Plaintiff testified that no cars had been moved on either the main track or the dowell track while he was present on the day of his injury. At approximately 3:30 p.m., the crew was using the movable crane to move two loaded gondola cars from a spur track onto the dowell track, which was covered with snow, so that the cars could be picked up by the railroad that night. Plaintiff did not check the switch between the main and dowell tracks at the north end to determine if it were clear before the cars were moved. In order to signal the crane operator to spot the cars, he positioned himself on the front left-hand side of the car farthest from the crane. At that position, there is a stirrup and an iron ladder on which to position oneself. As the train consisting of the movable crane and the Illinois Terminal cars was moving along the dowell track, plaintiff realized that his train could not clear the cars on the main track and signaled the crane operator to stop. The train did not stop, and plaintiff attempted to crawl into the car on which he was riding. Before plaintiff could get completely clear, the train collided with the cars on the main track which resulted in serious injuries to plaintiff, including the loss of both legs.

James Morey, superintendent at Moss-American on January 7, 1974, testified that he did not see any railroad cars on the dowell track during the hours he worked, 7 a.m. to 3:30 p.m.; however, he did see 17 cars on the main track. When Morey left work on January 6, 1974, he did not see any cars on the main track. Two Illinois Terminal cars were on the dowell track which were subsequently taken to the south end of the plant and loaded with treated ties. These cars were to be returned to the dowell track and became part of plaintiff's train. The two Illinois Terminal cars in plaintiff's train had not been part of the 17 cars on the main track, and plaintiff's crew did not move any of those 17 cars. Kerr-McGee does not conduct switching operations after 3:30 p.m., and the Pinkerton security agency would prevent any unauthorized person from switching cars. When Mr. Morey arrived at the accident scene, the Illinois Terminal car had rebounded approximately one car length from the point of impact, and plaintiff was on the ground approximately five to six feet from the end of the Illinois Terminal car.

Charles E. Hootsil, a switchman for the defendant, testified that he had no independent recollection of delivering 17 railroad cars to the Kerr-McGee plant prior to plaintiff's injuries. At the time of the accident, Mr. Hootsil was a student assigned to defendant's train crew which consisted of Dwight Voyles, Charles Voyles, and James Ray.

Charles Noah, trainman for the defendant, testified that his crew put together the 17-car train in defendant's Madison Yard which is located a short distance from Kerr-McGee. Mr. Noah's crew did not participate in delivering the cars to Kerr-McGee. When delivering cars after Kerr-McGee closed for the day, the usual procedure was to push the cars through the north gate and leave.

Freddy Chrome, conductor for defendant, testified that most of his 21 years of employment with the defendant were spent at the Madison Yard. Mr. Chrome stated that safety procedures did not allow a switch to be fouled; however, the rule was different in an industrial setting. A switch in an industrial setting could be fouled if the train crew had been directed by the industrial user to place the cars at a certain place which would, in effect, foul a switch.

Dwight Voyles, a crewman who delivered the 17 cars to Kerr-McGee, testified that he received no instructions as to where the cars were to be spotted. Ten cars were placed on the dowell track, and seven were put on the main track. The chocks of wood were placed to prevent each of the two sections from moving. Mr. Voyles did not remember if he set the hand brakes on the cars. He was aware of the safety rule that switches should remain clear, and he was confident that the rule had been obeyed. Mr. Voyles' testimony was corroborated by that of James Ray and Charles Voyles, his father. They did not remember how many cars were delivered or what actions they took on various other days in 1974. They heard about Mr. Manninger's injuries two days after the accident occurred at which time they discussed their work in delivering the 17 cars and concluded that their actions were proper.

William Lomanski, Kerr-McGee plant manager on January 7, 1974, testified that when he arrived at work on January 7, 1974, at 7 p.m., he was aware that 17 cars had been delivered the previous night, but he did not check to determine where they were spotted. Immediately after the accident, he counted 14 cars on the main track. Those cars extended beyond Kerr-McGee's gate. There were three cars on the dowell track. He had seen the three cars moved off the main line and back up to the dowell track, but these cars had been removed from the dowell track prior to the accident. He never did see 10 cars sitting on the dowell track. An examination of the dowell track after the accident indicated that there had been four to five cars on the dowell track at the time of the snow as evidenced by the lack of snow on the tracks. Mr. Lomanski's report of the accident shortly after it occurred did not mention that he had observed movement of C & NW's cars on the day of the accident.

Blondell Brandt, crane operator on plaintiff's train, testified that he had moved many cars prior to the accident and did not remember if he had moved any cars on either the main or dowell track. Mr. Brandt did not know from where the cars had come on which plaintiff was riding at the time of the accident. John Brown switched the train onto the dowell track. Plaintiff then got on the lead railroad car and was clearly visible to Mr. Brandt. Mr. Brandt could not see that the cars on the main track were across the switch until he got close to the end of the dowell track. No one had told him that the cars were across the switch, and he had no knowledge as to how long they had been there. About half-way down the dowell track when Mr. Brandt realized that the cars on the main line were across the switch, he applied the crane's brakes. The crane was moving approximately four to five miles per hour. The brakes were working, but the crane and the two cars that the crane was pushing started to slide due to the slick rails. Mr. Brandt placed the crane in reverse, ...


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