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Demarie v. B. & O. Chicago Terminal R.r. Co.





APPEAL from the Circuit Court of Cook County; the Hon. JEROME LERNER, Judge, presiding.


Defendant Baltimore and Ohio Chicago Terminal Railroad Company appeals from a jury verdict awarding plaintiff August DeMarie $125,000 for injuries he received when the truck he was driving was struck by one of defendant's switch trains. Prior to trial, defendant filed a motion to dismiss on the grounds that plaintiff had previously signed a release acknowledging receipt of $7500 "in full settlement and satisfaction of all his claims arising out of the accident." The motion was denied and the cause proceeded to trial. At the close of plaintiff's case and again at the close of all the evidence, defendant moved for a directed verdict. Believing that the validity of the release was an issue of fact to be determined by the jury, the trial court denied the motion and submitted the issue to the jury, along with plaintiff's negligence claim. Defendant appeals.

On appeal, defendant argues that the trial court committed reversible error (1) by denying its motion for a directed verdict and (2) by allowing plaintiff to introduce evidence of his adverse family and financial circumstances to the jury.

We reverse.

On July 25, 1972, plaintiff August DeMarie was hauling a load of stones on the premises of his employer, The Edmier Industrial Company. The stones were to be dumped into a storage bin adjacent to a switch track operated by defendant. Plaintiff had been employed by Edmier for 12 years and knew that defendant's switch trains operated on the tracks throughout the day. He admitted knowing that one had to watch for trains and proceed with caution whenever entering the premises. He further admitted that on this particular day, however, he failed to do so.

As plaintiff began dumping the load into one of the bins near the tracks, one of defendant's trains struck the bumper and fender of plaintiff's truck. Though the train was travelling at slow speed, plaintiff testified that the impact threw him to the passenger side of the truck cab and twisted his upper and lower back, causing a sharp pain.

The engineer testified that although he was looking down the track at all times, he was unable to see plaintiff's truck until he was 20 feet away, due to a curve in the tracks. Though the engine bell was ringing from the time the train began moving, plaintiff was unable to hear it because he was revving the truck engine as he raised the dump bed.

Immediately after the accident, plaintiff was taken to a clinic for examination. After an hour, he was given some pain pills and sent home. He later went to an ear specialist who told him that he had lost some hearing in his right ear.

During the next five weeks, plaintiff remained home from work and visited the clinic almost every day. Two weeks after the accident he began complaining of back pain. Dr. Larsen testified that X rays taken at that time revealed some intervertebral disc narrowing between the L4-L5 lumbar region of the spine. Such narrowing does not necessarily indicate a slipped disc and for this reason, Dr. Larsen did not inform plaintiff of the possibility of a slipped disc. It was Dr. Larsen's opinion that plaintiff had merely strained his back.

At the end of the five-week period, plaintiff was referred to another doctor who examined him and advised him to return to work. He returned to work but continued to experience back pain. Finally, at the insistence of his employer, he consulted a physical therapist who administered vibration and massage treatments. Plaintiff also continued taking whirlpool baths and alcohol rubs at home.

The evening of the July 25, 1972, accident, one of defendant's claim agents called plaintiff at home to inquire about his condition. The conversation was general. Several days later, the agent personally visited plaintiff at home to further discuss the accident. Again, the conversation was general; the possibility of settling any claims was not discussed.

The agent maintained regular contact with plaintiff until he returned to work in September of 1972. At about that time, defendant received plaintiff's medical reports. Thereafter, the agent began calling plaintiff every other day to discuss the possibility of a settlement.

At first, plaintiff and his wife were not interested in settling. Though plaintiff had returned to work, he continued to have pain. Both plaintiff and his family noted that his back had become crooked and also that he had begun dragging his leg when he walked. Nevertheless, in late October of 1972, plaintiff called defendant's claim agent and expressed his willingness to settle his claim.

On November 2, 1972, two of defendant's claim agents met with plaintiff and his wife at their home. Plaintiff informed the agents that he was still having problems and undergoing treatment. Defendant's agents first offered $4,000 or $5,000 and then $6,000. When plaintiff suggested that he wanted to see a lawyer, one of the agents allegedly stated that a lawyer was not necessary and added further that "all the lawyer would do is take one-third." ...

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