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Oltersdorf v. Chesapeake & Ohio R.r. Co.





APPEAL from the Circuit Court of Cook County; the Hon. LAWRENCE P. HICKEY, Judge, presiding.


Rehearing denied April 28, 1980.

David Oltersdorf (plaintiff) brought this action under the Federal Employers' Liability Act, for injuries in the course of duty, against Chesapeake & Ohio Railroad Company (defendant). A jury awarded plaintiff $1 million. Defendant appeals.

In this court, defendant contends the trial court erred in refusing to give defendant's requested special interrogatories relating to the plaintiff's contributory negligence; in refusing to allow evidence of the impact of taxation on plaintiff's projected future lost earnings; in refusing to instruct the jury its award of damages was not subject to taxation; and, finally, the verdict is excessive.

On September 16, 1974, plaintiff was working as a member of a four-man crew employed by the defendant. Their assignment was to switch freight cars in and out of industrial plants at the "Kelsey-Hayes" switching area near Romulus, Michigan.

Kelsey-Hayes is a six-track switching area. The two main tracks there are called the northbound main and the southbound main. At the south end of Kelsey-Hayes, the four other tracks diverge to the west from the main tracks and run adjacent to the main tracks through the switching area. Moving east to west, the third track is known as the "new lead." It is used only for switching cars. The "new lead" ends at the north end of Kelsey-Hayes where it merges into the main tracks. The fourth and fifth tracks are called the "Kelsey lead" and the "environ lead," respectively. These tracks service the Kelsey-Hayes and Eaton Chemical industrial plants located northwest of the switching area. The sixth, westernmost track, is called the "Barrett lead." It services the Buffalo Tank industrial plant, also located northwest of the switching area.

At 10 p.m. on September 16, 1974, the four-man crew, including plaintiff, reported to work at defendant's railroad yard in Wayne, Michigan. Plaintiff was a brakeman, or "fieldman." Paul Laisure was the engineer. Lewis Burghardt was conductor and Alfred Long was the headman.

Burghardt was in charge of the switching operations and of all the movements of the train and crew. Plaintiff described the conductor as the "foreman" of the crew. Laisure operated the engine. Long, the headman, was responsible for relaying signals between the engineer and the rest of the crew and for hooking the engine on and off various cars during switching operations. As fieldman, plaintiff's duties were to ride in the caboose with the conductor. When the crew was conducting switching operations, plaintiff would be stationed on the ground at the rear of the train. He would assist in the switching of cars and operating the hand brakes on cars which were unhooked or "cut" from the train.

Plaintiff testified the crew left the Wayne, Michigan railroad yard with an engine, 17 boxcars and a caboose. Plaintiff was riding in the caboose with Burghardt. The train stopped at the Romulus, Michigan, depot. Plaintiff picked up switching orders assembled by one of defendant's agents from directions given to him by the three plants serviced from Kelsey-Hayes. Plaintiff gave Burghardt the orders, gave a copy of them to Long and kept a copy for himself. The train left Romulus on the southbound main track heading for Kelsey-Hayes. Plaintiff's best recollection was he rode in the caboose with Burghardt and Long rode in the engine with the engineer. Burghardt carried a "walkie-talkie" and there was a radio in the engine. There was no communication between the caboose and the engine during the 5-minute ride from Romulus to Kelsey-Hayes.

Plaintiff stated he discussed the switching work to be done with Burghardt on the way to Kelsey-Hayes. Burghardt told plaintiff he planned to release or "cut" the engine from the remainder of the train and leave the 17 boxcars and the caboose on the southbound main track. Burghardt would then take the engine to the new lead track, the next track to the west. There, he would connect nine cars to the engine. The nine cars were already standing on the new lead as part of a longer train. From front to rear these cars were four boxcars, two tank cars, two more boxcars and a flatcar. Burghardt told plaintiff they would then pull out the nine cars, put the flatcar on the Barrett lead, the farthest track to the west, put the next two boxcars back on the new lead, and then put two tank cars on the Barrett lead. The four boxcars left on the train would be connected to the remaining cars on the new lead and then "doubled up" with the boxcars remaining on the southbound main track which the crew had brought from Wayne. All these cars would then be taken to the Kelsey lead, west of the new lead, and pushed into the Kelsey-Hayes plant.

When the train arrived at Kelsey-Hayes, the engine was detached from the 17 boxcars and caboose. They were left standing on the southbound main as Burghardt had said. Burghardt alighted from the caboose and uncoupled nine cars on the new lead from the other cars there. The engine was then brought to the new lead and attached to these nine cars which Burghardt had just "cut." Plaintiff testified that at this point, Long, the headman, asked Burghardt "what he had in mind". Burghardt repeated to Long, as Burghardt had previously told plaintiff in the caboose, about these nine cars. The crew was to take the flatcar to the Barrett lead, the 2 boxcars back to the new lead, the 2 tank cars to the Barrett lead, and then they would double up the remaining cars with the 17 boxcars which remained on the southbound main track, all to be taken to the Kelsey lead.

Plaintiff's testimony as to what happened up to this point was contradicted by Burghardt and Long. These witnesses testified that on the trip from Romulus to Kelsey-Hayes, plaintiff was not in the caboose with Burghardt but was riding in the engine with Long, the headman, and the engineer. Plaintiff's counsel virtually conceded this fact in his closing argument. Both witnesses also testified that while plaintiff received the switching list at Romulus, he did not give it to Burghardt until the train arrived at Kelsey-Hayes. Burghardt testified he did not communicate by radio with anyone in the engine during the trip from Romulus. However, Long stated plaintiff did converse with Burghardt on the radio. Plaintiff told Burghardt he had received the switching list "and went over a few things on the list." Long could not recall any more of the conversation.

Burghardt testified that after he reviewed the switching list, he told plaintiff and Long they would take the first 9 cars off of the train on the new lead, put the flatcar into the Barrett lead, put the 2 boxcars and 2 tank cars back into the new lead, and then take the remaining 4 boxcars and connect them to the 17 cars they had brought from Wayne. Burghardt specifically denied he ever told plaintiff he was going to put the two tank cars on the Barrett lead. Burghardt stated his intention was to put another flatcar (which he claimed was on the train they brought from Wayne) on the Barrett lead. He testified putting the tank cars on the Barrett lead would be "totally contrary" to his method of switching. This would require him to handle the tank cars at least one more time to get them out from between the flatcars and on to the Kelsey lead where they would be pushed into the Eaton Chemical plant.

Long testified he could only remember Burghardt telling plaintiff and himself that the flatcar at the rear of the nine cars on the new lead had to go to the Barrett lead.

Events which transpired after the conversation between plaintiff, Burghardt and Long at Kelsey-Hayes are basically undisputed. After the engine was coupled to the cut of nine cars on the new lead, it pulled these cars 1000 yards south on the new lead past the switch regulating entry into each track. The switch was then thrown so that the engine could "kick" the flatcar on the north, rear end of the train into the Barret lead, to the extreme west, as planned. The "kick" is a maneuver by which the engine begins to push the cars and the coupler pin is pulled to disconnect the cars from the engine. The engine is then stopped and the released cars continue to roll ahead on their own momentum.

The flatcar was kicked. Plaintiff boarded it and set the hand brake as the car rolled into the Barrett lead. Plaintiff then lined up the coupling mechanism on the flatcar so the next car ...

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