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Garcia v. Chicago & North Western Ry. Co.

OPINION FILED DECEMBER 26, 1979.

RAMON GARCIA, PLAINTIFF-APPELLEE,

v.

CHICAGO AND NORTH WESTERN RAILWAY CO., DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. JAMES CROSSON, Judge, presiding.

MR. PRESIDING JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT:

Plaintiff, Ramon Garcia, brought this action pursuant to the Federal Employers' Liability Act (FELA) (45 U.S.C. § 51 et seq. (1970)) against his employer, defendant Chicago and North Western Railway Company. Plaintiff alleged that he injured his lower back while engaged in track repair when he backed into a railroad car standing on an adjacent track. Plaintiff contended that defendant was negligent in not providing a reasonably safe place to work and in failing to provide automatic equipment to do the work.

The cause proceeded to a jury trial which focused on the issues of defendant's alleged negligence, plaintiff's alleged contributory negligence, and the nature and extent of plaintiff's damages. The jury awarded plaintiff $37,000 in damages. On appeal, defendant does not contend that the evidence was insufficient to prove it was negligent. Rather, defendant claims that it is entitled to a new trial based on the trial court's alleged errors in (1) excluding certain of defendant's work records; (2) permitting plaintiff to introduce unrelated medical expenses; (3) permitting plaintiff to introduce medical expenses defendant had previously paid; (4) excluding statements contained in a consulting physician's report mentioned by a physician who testified on plaintiff's behalf; (5) admitting hearsay testimony as to a previous description of the incident by plaintiff; and (6) giving and refusing certain jury instructions relating to proximate cause and contributory negligence.

The following pertinent testimony was adduced at trial. Plaintiff was employed as a track laborer to assist in the maintenance of defendant's track, ties, and road bed. Plaintiff normally worked in a section gang along with Vincente Guzman, another laborer, and Gerardo Reyna, an assistant foreman. He was assigned to defendant's Proviso Yards, where the tracks are laid down with 13.6-foot centers between them.

The specific task plaintiff was performing when he was injured was removing and replacing the wooden ties on which the steel rails rest. Defendant offered testimony that such maintenance work was always performed by small section gangs with hand tools, rather than the large production gangs who employ automatic equipment. The hand tools used include crow bars, to pull the spikes that join the rail to the wooden ties; jacks, to lift the rails from ties that are to be replaced; and tie tongs, to withdraw the ties. Tie tongs are scissor-like devices used to clamp onto the tie. They may be one-man or two-man in operation. If one man is doing the job, as is generally the case, he straddles the tie to be removed, leans forward, and closes the tongs onto the tie. He then pulls the tongs and the attached tie toward his body and along the ground, releases the tie, and repeats the process until the tie is withdrawn. This process permits the worker to remove the tie without moving backward. However, if a tie is particularly difficult to extract, employees may use two-man tongs. In that procedure neither man can straddle the tie, but rather the employees move with the tie as it is withdrawn, and thus additional space for the employees' movement is required.

As to the incident at bar, plaintiff testified that he was injured on the morning of May 5, 1972, while working on Track 19. He stated that he was working with Vincente Guzman under the direction of two foremen, Gerardo Reyna and Nicholas Cano. Plaintiff testified that upon arriving at the work site, he saw that there were freight cars standing on an adjacent track. Plaintiff asked that the cars be moved to create adequate room to work; similar requests had been granted in the past. In this instance, however, plaintiff testified that he was told that the cars would not be moved and he could either work or go home.

Plaintiff and Guzman set about removing ties. Plaintiff testified that a particular tie was wet and heavy, so Guzman joined him on a set of two-man tongs and together they began to pull very hard. Plaintiff testified that while so attempting to remove the tie, he backed into one of the freight cars he had requested be removed.

Plaintiff felt a pain in his back and told Reyna and Cano that he wanted to see a doctor. After reporting the accident to a clerk in defendant's office, plaintiff was taken to Westgate Medical Center. The doctor who examined him sent him back to work. Plaintiff continued working, returning to Westgate Medical Center a number of times, but the pain in his back persisted and increased. Finally, on December 19, 1972, the pain in his back became so intense that he felt he could not continue to work, and that weekend he checked into Wesley Memorial Hospital. He stayed there 11 days, but the doctors could find nothing. Plaintiff never worked for defendant after December 19 because the pain recurs every time he tries to work.

Edward Gonzalez was the clerk to whom plaintiff reported his injury. Gonzalez testified that although plaintiff did report to him at about 11:30 a.m. on May 5, 1972, plaintiff at that time told him the incident had actually occurred on May 4, and he had not reported it because his back did not bother him that much then.

Nicholas Cano testified that in May of 1972, he was assistant foreman of a different section gang than the one to which plaintiff belonged. However, he recalled an occasion in May of 1972 when plaintiff came from the other section gang to assist Cano and his group in replacing railroad ties, but the site was Track 4, rather than Track 19. On that day, plaintiff told Cano that plaintiff had hurt his back by backing into a gondola car, but plaintiff worked the remainder of the day and did not visit the doctor until the next day. Cano could not remember whether Vincente Guzman was present either day, but he thought that the laborers were only using one-man tongs that day because the ties were easy to remove. Cano also testified that there was only one gondola car anywhere near the work area, that it was not necessary that the car be moved, and that no one requested that it be moved.

Gerardo Reyna, who plaintiff also placed at the scene of the accident on May 5, 1972, confirmed that he was assistant foreman of plaintiff's section gang in May of 1972, but Reyna could not recall whether he himself was at work on May 4 or May 5. Reyna also did not remember whether he heard about the accident from plaintiff or someone else, or when he heard about it.

Dr. Hockman, defendant's company physician, testified that he first examined plaintiff on May 5, 1972. He returned plaintiff to work after diagnosing muscle strain. Dr. Olivella, whom plaintiff mentioned during his testimony, testified that he treated plaintiff for skin conditions on plaintiff's legs, and he did not examine plaintiff's back.

Dr. Cinta saw plaintiff periodically between April of 1973 through 1978 and treated him for his continuing back complaint. Although plaintiff's X rays and reflexes appeared normal, Cinta stated that plaintiff could have been suffering from one of several types of lower back injury that would cause pain and weakness in his right leg. Dr. Huang also examined plaintiff for complaints of low back pain and right leg weakness and came to the same basic conclusion, noting that X rays do not always show back conditions. Huang scheduled a spinal test in order to determine whether plaintiff had a pinched nerve or was a malingerer, but plaintiff did not appear for the test. However, Huang did believe that plaintiff had some pathology in his lower back.

Dr. Hirschtick, who examined plaintiff for purposes of testifying, gave his opinion that plaintiff was suffering from lumbar disc syndrome because of a damaged disc. Other testimony by physicians and others will be discussed as pertinent to the issues raised on appeal. Indeed, in view of the fact that defendant does not explicitly argue that the evidence was insufficient to show that plaintiff was injured or that defendant was negligent, we might well have dispensed with most of the above testimony. However, defendant argues that the fact that proof of plaintiff's injury depended largely on his own subjective complaints, and the fact that ...


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