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Escher v. Norfolk & Western Ry. Co.

OPINION FILED SEPTEMBER 28, 1979.

RAYMOND R. ESCHER, PLAINTIFF-APPELLEE,

v.

NORFOLK AND WESTERN RAILWAY COMPANY, DEFENDANT-APPELLANT.



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

MR. JUSTICE KARNS DELIVERED THE OPINION OF THE COURT:

Rehearing denied November 29, 1979.

Defendant, Norfolk and Western Railway Company, appeals from the judgment of the Circuit Court of Madison County entered upon a jury verdict in favor of plaintiff Raymond R. Escher in an action to recover damages for personal injury under the Federal Employers' Liability Act (45 U.S.C. § 51 et seq. (1976)).

The incident out of which this action arose occurred on defendant's property at its Luther yard in St. Louis, Missouri. Plaintiff, a carman for defendant, was transferred to the Luther yard in January of 1974. At approximately 3 p.m. on March 26, 1974, plaintiff was standing in the company's locker room located in the roundhouse waiting for a buzzer to signal the end of his day at work. As soon as the buzzer sounded, plaintiff followed a fellow employee, Stanley Schneider, to the exterior door of the building. Plaintiff testified that he was following Schneider by approximately 2 1/2 feet and was looking straight into his back as they approached the door. He further testified that Schneider opened the door but that it did not open "like it normally should have." Plaintiff then bumped into Schneider and stepped on the back of his heel. Neither man fell and both continued through the door and out to the parking lot.

Plaintiff noticed some swelling around his left ankle when he got home and believed he had sprained it. Four months after the accident, he went to see the company doctor who took X rays and administered heat treatments. Thereafter, at the request of his attorney, plaintiff went to see a Dr. Heidke, a chiropractor, in January of 1976 who referred him to a Dr. Koenig. Koenig examined plaintiff in February of 1977 and testified at trial that plaintiff had broken three or four bone segments in his left ankle.

Stanley Schneider, the co-worker of plaintiff, testified on behalf of defendant. On direct examination, he testified that he did not have difficulty with the door on March 26, 1974, and added that he merely stopped to open it. He believed the door was operating "okay" from January of 1974 up to the time of the accident. On cross-examination, however, Schneider admitted that he did not remember exactly what happened and added that the door might or might not have been defective in the way it opened. On redirect examination, he attempted to clarify his testimony on cross-examination by stating that he had no trouble opening the door although there may have been a defective part. He concluded on re-cross-examination and on redirect that he did not know whether the door handle was working properly but he could not recall having any difficulty with it.

Joseph Whitley, plaintiff's supervisor, testified that he prepared a company report after plaintiff told him on March 27, 1974, about the incident the previous afternoon. Whitley stated that he tried the door to see if it would function properly and found that it opened without any problem.

Richard Bain, a general contractor, testified as an expert witness for plaintiff. He stated that he examined the door in question in December of 1977. He found the door to be of a light commercial variety which should be used only in warehouses where there is light traffic. He further discovered that a brass screw, which served to hold the door knob and latch in place, was worn out by rubbing against a steel rod, apparently causing the latch to slip. Lastly, he found that the top strip of the door, which was not welded down, was "pried up and strung loose" and could therefore cause the door to jam. On cross-examination, he admitted that he had no idea what the condition of the door was in 1974. During the course of Mr. Bain's testimony, defendant's counsel objected on numerous occasions because there was no evidence that the expert was familiar with the door at the time of the accident.

The jury returned a verdict of $30,000 in favor of plaintiff upon which judgment was entered.

• 1, 2 On appeal, defendant contends that the trial court erred in not directing a verdict in its favor because there was no evidence that it was negligent. Generally, under the Federal Employers' Liability Act a common carrier by railroad is liable in damages for injury to its employees resulting in whole or in part from the negligence of that carrier. As Congress intended the Act to be remedial legislation (Urie v. Thompson (1949), 337 U.S. 163, 93 L.Ed. 1282, 69 S.Ct. 1018), its provisions have been interpreted as imposing a greater duty on the carrier for paying damages for injury than under the common law. (Rogers v. Missouri Pacific R.R. Co. (1957), 352 U.S. 500, 1 L.Ed.2d 493, 77 S.Ct. 443.) The critical feature of this legislation is that the jury has been afforded greater leeway in determining whether liability exists. Eggert v. Norfolk & Western Ry. Co. (2d Cir. 1976), 538 F.2d 509.

• 3-5 As stated in the landmark case of Rogers v. Missouri Pacific R.R. Co.:

"Under this statute the test of a jury case is simply whether the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought. It does not matter that, from the evidence, the jury may also with reason, on grounds of probability, attribute the result to other causes, including the employee's contributory negligence. Judicial appraisal of the proofs to determine whether a jury question is presented is narrowly limited to the single inquiry whether, with reason, the conclusion may be drawn that negligence of the employer played any part at all in the injury or death." (352 U.S. 500, 506-07, 1 L.Ed.2d 493, 499, 77 S.Ct. 443, 448-49.)

(See also Gallick v. Baltimore & Ohio R.R. Co. (1963), 372 U.S. 108, 9 L.Ed.2d 618, 83 S.Ct. 659.) We note, however, that this legislation is not a workmen's compensation or insurance act (Barrett v. Toledo, Peoria & Western R.R. Co. (7th Cir. 1964), 334 F.2d 803); nor does it impose absolute liability. (Foote v. Erie Lackawana Ry. Co. (1976), 142 N.J. Super. 195, 361 A.2d 62.) As indicated by our supreme court in Finley v. New York Central R.R. Co. (1960), 19 Ill.2d 428, 167 N.E.2d 212:

"While it is the jury's function to decide the factual questions whether the defendant was negligent and whether such negligence was a proximate cause of the injury, the decision must be supported by something more than mere speculation. [Citation.] Unless there is evidence from which the inference may reasonably be drawn that the injury was caused by some negligent act of the ...


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