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Bean v. Norfolk & Western Ry. Co.





APPEAL from the Circuit Court of Madison County; the Hon. WILLIAM L. BEATTY, Judge, presiding.


Mr. JUSTICE HARRISON delivered the opinion of the court:

Third-party defendant, Union Tank Car Company (hereinafter UTLX), appeals from judgments entered in favor of plaintiff, Harold Bean, against defendant, Norfolk & Western Railway Company (hereinafter Norfolk & Western), and in favor of third-party plaintiff, Norfolk & Western, against UTLX in the amount of $350,000. The issues on appeal are (1) whether the trial court erred in denying the motions of UTLX and Norfolk & Western for a medical examination of the plaintiff and for reconsideration and continuance in reference thereto; (2) whether the trial court erred in denying the motions of UTLX to continue the entire case or to sever and continue the third-party claim due to the unavailability of certain witnesses; (3) whether the motions of UTLX for a directed verdict were erroneously denied; (4) whether the trial court erred in failing to limit the contractual indemnity liability of UTLX to Norfolk & Western to 50%; (5) whether evidence of custom and usage was properly excluded; (6) whether the trial court erred in giving and refusing certain jury instructions; and (7) whether the amount of the verdict was excessive. We affirm the judgment of the circuit court.

Plaintiff, Harold Bean, was employed by Norfolk & Western as an operator-telegrapher at its Edwardsville office on May 5, 1976. Plaintiff had received a telephone call from UTLX that its tank car No. 25838 was to be taken to Nashville, Tennessee, although the date of this call was unclear. Plaintiff telephoned a supervisor to have a carman inspect the journal boxes on the car and prepare a switch list. A journal box is a brass fitting on both sides of the axle containing oil which lubricates the axle and prevents it from shearing off and derailing the train. A switch list is prepared in order to facilitate the switching crews in the assemblage and moving of trains. However, no carman was available and plaintiff was instructed to check the car himself.

Plaintiff drove to the area where the car was located. On the date in question, a lease or "siding" agreement was in effect by which UTLX leased certain sections of track and the surrounding land for the storage of its cars. Car No. 25838 was owned by UTLX and located on the "Old Passing" track, a portion of track covered by the lease agreement. The car was not moving at the time plaintiff engaged in his inspection during which he discovered sections of railroad ties on the car. Plaintiff climbed on top of the car and threw them off. As he was descending a ladder on the south side of the car, his foot slipped from the bottom rung, also called the "sill step" or "stirrup," and he fell to the ground. While on the ground plaintiff noticed a dirty, yellow-green grease on the sole of his shoe and approximately one-quarter inch thick spread evenly across the stirrup. Following his fall he experienced pain in his lower back, buttocks and right leg. After lying on the ground a short time, plaintiff got to his feet and wiped the grease off the stirrup with a rag. He testified that he did not want a switchman to jump on the car while it was moving and fall because of the grease. He placed a rock in the rag and threw it away from the tracks.

Plaintiff was treated initially by a Norfolk & Western physician, who diagnosed his injury as a bruised hip. Plaintiff returned to work in June and July, but saw his family doctor because his back, hips and legs were causing him pain. In August 1976, plaintiff went to Dr. Heidke at the suggestion of his attorneys. Dr. Heidke diagnosed cervical and lumbar vertebrae injury and began treatment. However, with the pain still continuing, Dr. Heidke referred plaintiff to Dr. David Schreiber, who testified at trial. Dr. Schreiber diagnosed plaintiff's injuries as rediculopathies or four pinched nerves in the cervical and lumbar vertebrae area caused either by a herniated disc or the stretching of the nerves during the fall. It was Dr. Schreiber's opinion that plaintiff was totally and permanently disabled, being precluded from doing anything that could be considered work. Dr. Schreiber also opined that the fall was the cause of plaintiff's medical condition. This testimony was uncontradicted.

A UTLX manager, Steve Babick, testified that car No. 25838 arrived in Edwardsville on March 31, 1976, according to his records. He further stated that it was UTLX's decision to move the car to Nashville on May 5, 1976, but it was not custom or practice for any UTLX employee to inspect a car before it was removed from Edwardsville because no company employee was stationed there. James Settle, a Norfolk & Western assistant car foreman, also testified that he made an inspection of car No. 25838 on May 6, 1976, in Madison, Illinois, where the car had been moved. Mr. Settle stated that he found no grease or foreign matter on the sill step or other portions of the car.

The siding agreement was introduced into evidence, and the pertinent clauses read as follows:

"14. The Industry will indemnify and hold harmless the Railway for loss, damage or injury from any act or omission of the Industry, its employees, or agents, to the person or property of the parties hereto and their employees, and to the person or property of any other person or corporation, while on or about said track; and if any claim or liability other than from fire arises from the joint or concurring negligence of both parties hereto it shall be borne by them equally.

15. (a) The Railway shall not be liable as common carrier or as bailee for any property loaded into any car on said side track until said car is attached or coupled to the engine or train by which it is to be moved from said side track toward its destination, and until said car is so attached or coupled up, said car and its contents shall be deemed and held to be in possession of the Industry so far as liability for the safety and care thereof is concerned."

Following argument and instructions, the jury returned a verdict in favor of plaintiff and against Norfolk & Western in the amount of $350,000 on the Federal Employers' Liability Act claim against the railroad. The jury also found in favor of Norfolk & Western and against UTLX on the third-party indemnity claim in the full amount of said verdict. Post-trial motions of both Norfolk & Western and UTLX were denied. UTLX now appeals.

• 1 We note at the outset a jurisdictional matter with respect to Norfolk & Western. While it filed a post-trial motion, it did not file a notice of appeal or cross-appeal; yet its brief before this court contains assertions of error which it argues call for reversal of the judgment in favor of plaintiff and against Norfolk & Western. It is clear that our Supreme Court Rules call for the filing of a notice of appeal as a fundamental jurisdictional matter. (Ill. Rev. Stat. 1977, ch. 110A, pars. 301, 303(a).) No other step is jurisdictional in the appellate process, but the filing of said notice within the requisite time period is mandatory. (Danaher v. Knightsbridge Co. (1978), 56 Ill. App.3d 977, 979, 372 N.E.2d 862; Case International Co. v. American National Bank & Trust Co. (1974), 18 Ill. App.3d 297, 300, 309 N.E.2d 750.) Thus, before we consider the merits of Norfolk & Western's contentions, we are duty bound to determine whether the appeal has been properly taken so as to invoke this court's jurisdiction. (Artoe v. Illinois Bell Telephone Co. (1975), 26 Ill. App.3d 483, 484, 325 N.E.2d 698.) Having failed to file a notice of appeal, we are confined to the issues properly raised by appellant UTLX, and those attempted to be raised by Norfolk & Western are not before this court. National Football League Properties, Inc. v. Dallas Cap & Emblem Manufacturing, Inc. (1975), 26 Ill. App.3d 820, 821, 327 N.E.2d 247; Mid-West National Bank v. Metcoff (1974), 23 Ill. App.3d 607, 610-11, 319 N.E.2d 336.

UTLX first contends that the trial court erroneously denied its motions for a medical examination of plaintiff and continuance to accomplish same. It argues that it was in the case only a short time before it was tried, exercised due diligence in seeking medical information and was prejudiced by the court's ruling. The record shows that the initial complaint was filed on August 20, 1976, and the third-party complaint by Norfolk & Western against UTLX was filed on July 11, 1977. On March 9, 1978, UTLX filed supplemental interrogatories requesting plaintiff to bring his earlier interrogatory answers up to date, which was done on April 21, 1978. UTLX argues that it learned of plaintiff's one-week hospitalization in January 1978 for the first time in these answers. In mid-March 1978, this case was set on the April jury docket. UTLX filed notices of depositions of Dr. Heidke and Dr. Schreiber on March 21, 1978, said depositions to be taken on May 3 and May 17, respectively. UTLX argues that it was only at Dr. Schreiber's May 17 deposition that it learned of the total and permanent disability diagnosis of plaintiff. The motion for a physical examination, scheduled for June 13, was filed on May 23, 1978, by Norfolk & Western and joined in by UTLX, the examining physician being one of their choosing. On June 8, the trial court denied the motion. On June 9, a motion to reconsider and for continuance was filed by Norfolk & Western, and on June 16 a motion to continue was filed by UTLX. Both motions were denied by the trial court on June 16. The trial of this case began on June 19, with UTLX arguing that numerous cases ahead of this one on the docket were bypassed in order to try this case. Plaintiff responds that not until after the case was set on the jury docket did UTLX engage in the discovery of the treating physicians, even though plaintiff had listed both Doctors Heidke and Schreiber in answers to interrogatories on October 6, 1977. Thus, plaintiff argues, UTLX was not diligent in pursuing the medical information.

• 2 The Supreme Court Rules regarding such medical examinations of a party read in pertinent part as follows:

"(a) Notice; Motion; Order. In any action in which the physical or mental condition of a party or of a person in his custody or legal control is in controversy, the court upon notice and for good cause shown on motion made within a reasonable time before the trial, may order the party to submit to a physical or mental examination by a physician suggested by the party requesting the examination, or to produce for such examination the person in custody or under legal control who is to be examined.

(c) Physician's Report. Within 21 days after the completion of the examination, and in no event later than 14 days before trial, the examining physician shall prepare duplicate originals of a written report of the examination, setting out his findings, results of all tests made, his diagnosis and conclusions, and deliver or mail an original of his report and of all corrections, supplements, or additions thereto, to the attorney for the party requesting the examination and a duplicate original thereof to the attorney for the party examined or for the party who produced the person who was examined. The court may enforce compliance with this requirement." (Emphasis added.) (Ill. Rev. Stat. 1977, ch. 110A, par. 215.)

It is clear that under these rules, the trial court has wide discretion in determining what is good cause and what is a reasonable time before trial. (In re Conservatorship of the Estate of Stevenson (1970), 44 Ill.2d 525, 529, 256 N.E.2d 766, cert. denied (1970), 400 U.S. 850, 27 L.Ed.2d 87, 91 S.Ct. 50; Crown v. Village of Elmwood Park (1969), 118 Ill. App.2d 278, 282-83, 255 N.E.2d 47.) Dr. Schreiber's deposition was not taken until approximately seven months after he was initially listed as a treating physician in answers to interrogatories. This case had been set for trial in April and again was set on the June docket. The motion for a physical examination was filed on May 23, and the motion was denied on June 8. The trial began on June 19. Given these circumstances, we do not believe the trial court abused its discretion in denying the motion for a physical examination.

UTLX next contends that the trial court erred in failing to grant its motion to continue the entire case, or, in the alternative, to sever and continue the third-party claim due to the unavailability of certain witnesses. UTLX refers to one of its employees who was familiar with the lease agreement, the custom and practices between UTLX and Norfolk & Western, and the inspection of car No. 25838 prior to its coming to Edwardsville, but who had gone to Florida apparently on vacation the week of trial after he knew the case was on the trial docket. An ex-employee of UTLX, who was also knowledgeable regarding the inspection of the car, had not yet been located. The trial court felt that UTLX had made no concerted effort to have the former present at trial, even though he was a company official, and felt that further delays to find the latter would put the case "into July, where, you know, you're not going to have jurors, witnesses, lawyers or anybody else then. I have cases set but I don't anticipate any will be tried."

• 3 After being docketed in April, trial of this case was tentatively scheduled for June 12, 1978. These motions were first made on June 16, 1978, and denied the same day. Trial began on June 19. Section 59 of the ...

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