APPEAL from the Circuit Court of Cook County; the Hon. EDWARD
F. HEALY, Judge, presiding.
MR. JUSTICE BROWN*FN1 DELIVERED THE OPINION OF THE COURT: *FN1 THIS OPINION WAS PREPARED BY JUSTICE BROWN WHILE ASSIGNED TO THE ILLINOIS APPELLATE COURT, FIRST DISTRICT.
This appeal arises from an action brought by plaintiffs, Floyd J. Skinner and John E. Guttery, to recover for severe and permanent injuries sustained by Skinner and Guttery when they were struck from behind by a train owned and being operated by defendant, the Baltimore and Ohio Railroad Company (hereinafter "B&O"). Plaintiff's complaint alleged that their injuries were caused by the negligent or wilful and wanton misconduct of B&O.
In a separate action, Skinner and Guttery sued Penn Central Transportation Company (hereinafter "Penn Central"), their employer at the time of the incident, alleging a cause of action under the Federal Employers' Liability Act (hereinafter "F.E.L.A."). The cases were consolidated prior to trial, and were tried under the substantive law of Ohio, where the injuries occurred.
Upon a jury trial, verdicts in favor of plaintiffs and against B&O were returned on the issues of negligence and wilful and wanton conduct. Judgment was entered on the verdicts and B&O appeals. The issues under the F.E.L.A. were found against plaintiffs and in favor of Penn Central, and plaintiffs appeal from this verdict.
The issues before this court are: (1) whether B&O was not guilty, as a matter of law, of wilful and wanton misconduct; (2) whether B&O was not guilty, as a matter of law, of negligence; (3) whether plaintiffs were guilty of contributory negligence as a matter of law; (4) whether the jury was properly instructed as to the legal elements, under Ohio law, of wilful and wanton misconduct; (5) whether the court erred by refusing a circumstantial evidence instruction; (6) whether the court erred by refusing to give an instruction defining the term "trespasser"; (7) whether the court erred by refusing an instruction on the defense of assumption of the risk; (8) whether certain instructions were peremptory; (9) whether the court erred by refusing to give certain special interrogatories; (10) whether plaintiffs' final arguments were improper and inflammatory, and deprived B&O of a fair trial; (11) whether the court erred by submitting new verdict forms to the jury after they had returned one set of forms, and by mandating the jury to return verdicts utilizing the new forms.
A review of the evidence reveals that on the night of July 24-25, 1972, Floyd J. Skinner and John E. Guttery, employees of the Penn Central, were working on the south side of the Penn Central railroad yard near Milepost 16 in Zanesville, Ohio. The train yard in Zanesville ran east-west and was divided into the Penn Central railroad yard, used to designate the Penn Central tracks on the north side of the Zanesville yard, and the B&O railroad yard, used to designate the B&O tracks on the south side of the Zanesville yard. At the point where the injury occurred there were four primary tracks running parallel to each other. From the north they were referred to as the Penn Central siding, the Penn Central main, the B&O siding and the B&O main. The distance between the Penn Central main track and the B&O siding track was minimal. Guttery testified that the distance between the ties of these two tracks was only about two feet, and that if there were cars on both tracks, one could not work between them and it would be necessary to turn sideways to get enough clearance. To the east of this area, there were additional transfer tracks leading off the Penn Central siding which were used in switching cars to make up new trains. There were no artificial lights in the area where the accident occurred, and the only source of illumination available were the lanterns the trainmen generally carried with them.
On the night of the injury, both B&O and Penn Central had crews of railroad men working in the Zanesville yard. The Penn Central crew consisted of five men: the engineer Jacobs; the fireman Phillips; the head brakeman Beaver; the flagman Floyd Skinner; and the conductor John Guttery. All five men testified at trial. The B&O crew consisted of the engineer Laughery, the fireman Ellison, the head brakeman Tipton; the second brakeman Keffer; and the conductor Colling. Only Keffer and Colling testified at trial.
Plaintiffs had reported to work at 10:30 p.m., and had proceeded to the Penn Central transfer tracks and performed some work in that area. While working at that location, they had had a discussion with certain members of the B&O crew. After completing their work at the transfer tracks, the Penn Central crew proceeded westward to the area around Milepost 16, where the accident was to occur. Guttery had a switch list which listed the numbers of certain cars located on the Penn Central siding which were to be uncoupled and sent to the shop for repairs. The Penn Central crew had performed some of the switching in that area before the plaintiffs were struck.
In performing their work, Skinner and Guttery both used a radio to communicate with the engineer and fireman who were located on the yard engine. Beaver, the head brakeman, did not have a radio, but did have a lantern. Both Skinner and Guttery had lanterns and were using the lanterns to read the numbers of the railroad cars on the Penn Central siding.
The B&O crew was also involved in switching activities that night. As has been the practice of the B&O yard crew in the past, new trains would be made up by using the B&O side track adjacent and parallel to the Penn Central main track in the vicinity of Milepost 16.
Shortly before the accident occurred, the B&O yard crew rode their yard engine east on the B&O main track, past Milepost 16, to a location called the B.Z. siding. There, the B&O yard crew picked up 29 hopper cars and one gondola car. The crew intended to place these hopper cars, minus the gondola, on the B&O side track to become part of a new train. Each car was 40 feet long and 10 feet, 8 inches in width, thereby extending a little less than 3 feet out from each rail. The cars were loaded with manganese and weighed approximately 95 tons. Keffer, the B&O brakeman, testified that loaded cars tended to rattle less and to make less noise than unloaded cars.
The B&O engine pulled these cars back west on the B&O main track past Milepost 16 until the east (the gondola) car was approximately 50-feet east of the east crossover to the B&O side track. Keffer uncoupled the gondola car and left it on the B&O main track. After uncoupling the gondola car, Keffer had the B&O cut of cars continue west in order to clear the east crossover. After the switches were aligned for the eastward crossover movement onto the B&O side track, the B&O yard engine pushed the hoppers eastward onto the B&O side track, and towards the plaintiffs.
At this time, Keffer, the B&O brakeman who was at the east crossover, observed the plaintiffs' lanterns on the north side of the Penn Central yard, about 800 feet east of him. Therefore, Keffer waited while the loaded cars were shoved past him and then boarded the engine from the north side. Conductor Colling testified that he did not see the plaintiffs or Brakeman Keffer during the movement. He was on the engine at that time and did not look because the engineer was looking. However, Colling admitted that he was aware the Penn Central men were working in that area, as were all of the B&O crew, because of their previous trips on the B&O main. Furthermore, Colling had talked to Skinner earlier that evening when the Penn Central crew was working on the transfer tracks west of the B&O siding.
Rule 103 A of the B&O operating manual which was admitted into evidence states as follows:
"When shoving tracks or when doubling over, or placing cars on a track, unless it is known the track will accommodate the movement without fouling other tracks, or without shoving over end of track, a man must be stationed on the leading car or at the rear of such track in position to be clearly seen and to give signals, unless the movement is otherwise protected.
When shoving tracks and conditions require, it must be known that all couplings are made or that sufficient hand brakes are applied on cars at other end of track to prevent from rolling out to foul.
It must always be known there is sufficient room on opposite end of tracks to allow for slack action of cars."
The following colloquy took place while Keffer was on the stand in regard to this rule:
"Mr. Harrington: Q. Was there anyone riding on the lead car of your 28 car cut?
Q. Was there a light on the lead car?
Q. Are you required to ride a car when you're shoving it in this instance?
A. I believe the rule says under necessary conditions.
Q. Do you know what rule that is?
Q. Had you on previous occasions rode a car in a cut as you're shoving it?
A. Yes, if there were cars too close that we figured they would tie into, or if there was a B&O train on the main track picking up, sometimes they picked up out of the Brown siding and they would be in that area, and we would ride up there to warn them either to ride them or put a C.Z. onto the car.
Q. And in this instance, you did not feel that you were required by Rule 103 to ride this car, is that correct?
A. That has been common practice. We seen that done hundreds of times around there.
A. Yes. I have been there since 1949, and we would say that the riding had been only occasional.
Q. Why would you only do it occasionally? What is the difference between one occasion and another?
A. Just special occasions that there would be, there would be cars that we thought we might tie into or there would be a crew working along there, along the B&O side.
Q. And yet you saw these men down east of you and you shoved these cars down in that direction, is that correct?
Q. If that was a clear track, would you ...