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York v. Grand Trunk Western R.r. Co.

OPINION FILED APRIL 30, 1979.

DANIEL P. YORK, PLAINTIFF-APPELLEE,

v.

GRAND TRUNK WESTERN RAILROAD COMPANY, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. DOM J. RIZZI, Judge, presiding.

MR. JUSTICE MCGLOON DELIVERED THE OPINION OF THE COURT:

Plaintiff Daniel P. York filed suit against his employer, defendant Grand Trunk Western Railroad Company for injuries sustained while working for defendant as a brakeman. Count I was a FELA action brought by plaintiff for injuries he received while attempting to release a handbrake on a caboose. Count II was brought pursuant to FELA and the Federal Safety Appliance and Equipment Act for injuries plaintiff sustained while attempting to uncouple railroad cars. A jury subsequently awarded plaintiff $120,000 for count I and $80,000 for count II. Defendant appealed.

On appeal defendant argues that the trial court erred (1) in denying its motion in limine regarding plaintiff's ability to work as a brakeman; (2) in allowing plaintiff to testify concerning certain statements made by an examining physician; (3) in allowing the jury to award damages for future wage losses; (4) in allowing the jury to award damages for future pain and suffering; and (5) that the jury's award of damages was excessive.

We affirm.

On August 7, 1973, plaintiff Daniel P. York filed a complaint against his employer, defendant Grand Trunk Western Railroad Company, for injuries sustained in the course of his employment. The suit was filed pursuant to the Federal Employers' Liability Act (FELA) and alleged that plaintiff, a brakeman, was injured on October 15, 1970, as he attempted to release a handbrake on a caboose. Plaintiff alleged that as he attempted to board the caboose, the train unexpectedly moved, causing him to lose his balance and injure his back.

Plaintiff subsequently amended his complaint and added count II which alleged that on August 4, 1973, plaintiff was injured while attempting to uncouple a cut of cars from the train. Count II was brought pursuant to both the Federal Employers' Liability Act and the Federal Safety Appliance and Equipment Act. According to plaintiff, the uncoupling lever failed to function properly and as a result, he was forced to run alongside the moving cars in an effort to uncouple them. As he did, his feet became entangled in metal banding lying alongside the track, causing him to fall and injure his back.

Prior to trial, defendant filed a motion in limine seeking to bar testimony that plaintiff was physically able to return to work as a brakeman. The motion recited that following treatment for his injury, a railroad physician examined plaintiff and found him physically unfit to work as a railroad brakeman. Plaintiff requested a physical reexamination by a team of doctors pursuant to his union contract with defendant. By a majority decision, the examining physicians found plaintiff physically unfit to work as a brakeman. Defendant's motion in limine reciting these facts was subsequently denied by the trial judge.

During the trial, plaintiff first testified regarding the October 15, 1970, accident. He stated that after the accident, the trainmaster sent him to a nearby hospital where he was given a sleeping pill and was instructed to visit "company Dr. Allen." He further testified that several days later, his wife telephoned Dr. Kingsley, whom plaintiff also referred to as a "company doctor." Defendant objected to plaintiff's reference to Dr. Allen as a "company doctor" and the objection was sustained. Defendant also objected to plaintiff testifying as to any statements made by Drs. Allen and Kingsley on the grounds that any statements would be hearsay. The trial court, however, overruled the objection on the grounds that the physicians were defendant's agents and therefore, their statements were admissible as admissions against interest.

Continuing his testimony concerning the October 15, 1970, accident, plaintiff stated that Dr. Allen instructed him to enter the hospital. Upon his release two weeks later, he was given a back brace. Plaintiff returned to work but ceased working and eventually re-entered the hospital when he encountered back problems a few days later. There, plaintiff was given a myelogram and placed in traction. According to plaintiff, Dr. Allen stated that he was dehydrating and needed intravenous feeding. He also stated that plaintiff would have to exercise for the remainder of his life. The defendant objected that this testimony was hearsay, but the objection was overruled.

Plaintiff returned to work and worked steadily until April 1971, when his back pain became more intense. He attempted to see Dr. Allen, who stated that defendant was "getting nervous" about allowing him to treat plaintiff. Allen further stated that in the future, he would only treat plaintiff as a private patient and only with defendant's permission.

Plaintiff next testified as to the August 4, 1973, accident in which he tripped over the banding wire while attempting to uncouple some train cars. While he continued to work after the accident, he experienced back pain for the next several days. He stated that by August 10, 1973, he was experiencing severe pain in his leg. When he went to see Dr. Allen, office personnel told him that Dr. Allen would not see him without defendant's permission. Plaintiff then went to Chicago where doctors gave him a myelogram. Later that month, plaintiff underwent surgery for the removal of two herniated discs.

In September 1974, plaintiff's physician released him as a patient and stated that he could return to work as a brakeman. Pain in plaintiff's back was diminishing. Defendant, however, refused to re-employ plaintiff as a brakeman, finding him physically unfit for that job. Plaintiff testified that he was rehired as a groundskeeper, a job that was physically more demanding than that of a brakeman. However, plaintiff testified that he was terminated from this job on August 13, 1976, when defendant abolished the position.

Plaintiff further testified that after defendant eliminated the groundskeeper job, defendant offered him other jobs such as fireman. However, plaintiff refused these offers because the jobs would require either moving from his Battle Creek, Michigan, home, a reduction in pay, loss of his 14 1/2 years brakeman's seniority and security, or pass a physical examination.

During the trial, Dr. Gerald Rabin one of plaintiff's physicians, also testified. He stated that it was he who removed the herniated discs from plaintiff's spine and fused the vertebrae surrounding the discs. He further testified that in his opinion, the spinal fusion was ...


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