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Crabtree v. St. Louis-san Francisco Ry. Co.





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


Mr. JUSTICE KARNS delivered the opinion of the court:

Plaintiff, Frederick Crabtree, brought this action in the Circuit Court of Madison County under the Federal Employers' Liability Act (45 U.S.C. § 51 et seq. (1976)) to recover damages for personal injuries to his lower back sustained as a result of the negligence of defendant, St. Louis-San Francisco Railway Company. The jury returned a verdict for plaintiff in the amount of $315,000 upon which judgment was entered. From this judgment, defendant appeals.

Defendant contends that the trial court committed reversible error in admitting the testimony of Dr. Marshall Alperin and Raymond Stevens, expert witnesses called by plaintiff; that it was error to instruct the jury to determine the present cash value of lost future earnings without any evidence of the mathematical calculation required to assist the jury in performing this function; that counsel for plaintiff was allowed to argue improperly the loss of purchasing power of the dollar based upon inflationary trends; and that the trial court erred in refusing to instruct the jury that any damage award would not be subject to Federal or State income taxation.

On March 26, 1976, plaintiff, then age 39, was employed by defendant as a track laborer. On that day, while attempting to lift a keg of rail spikes by hand onto a rail push cart, plaintiff experienced a sharp pain and a tingling and burning sensation in the lower left side of his back. After plaintiff's injury was diagnosed as a ruptured disc at the L-5, S-1 level of the spine, he underwent surgery for removal of the disc. Plaintiff still experiences numbness and pain in his back and legs and has not worked since his operation.

Dr. Marshall Alperin, a specialist in internal medicine, testified on behalf of plaintiff. He testified that he has conducted pre-employment physical examinations since 1962 and is presently conducting such examinations for approximately 35 industries, including the Illinois Central Gulf Railroad. Over defendant's objection, Alperin was asked whether a man of plaintiff's age who had undergone a low back operation would be hired by any of the corporations for whom Alperin worked. Alperin replied that none of the corporations would hire plaintiff because of the increased risk that the problem might return and become a liability to the company. Also, over objection, Alperin was permitted to testify that for all 35 companies, plaintiff was "industrially unemployable."

• 1 It is defendant's initial contention that the trial court erred in refusing to strike Dr. Alperin's testimony because, in defendant's opinion, plaintiff failed to establish the physician's qualifications as an expert on matters of hiring and employment practices in industry. Defendant's contention is without merit. Expert testimony is admissible when the witness offered as an expert possesses peculiar knowledge or experience not common to the ordinary layman which renders his testimony an aid to the trier of fact. (People ex rel. Scott v. Steelco Chemical Corp. (1974), 22 Ill. App.3d 582, 317 N.E.2d 729; Ocasio-Morales v. Fulton Machine Co. (1973), 10 Ill. App.3d 719, 295 N.E.2d 329.) Thus, to lay a proper foundation for expert evidence, the expert must be shown to have that special knowledge or experience in the area about which he expresses his opinion. (See Craft v. Acord (1974), 20 Ill. App.3d 231, 313 N.E.2d 515; Abramson v. Levinson (1969), 112 Ill. App.2d 42, 250 N.E.2d 796.) What constitutes such requisite expertise rests within the sound discretion of the trial court. Hardware State Bank v. Cotner (1973), 55 Ill.2d 240, 302 N.E.2d 257.

• 2 Applying these principles, the trial court did not abuse its discretion in permitting the testimony of Dr. Alperin concerning the employment practices of the 35 companies for whom he worked. The record demonstrates that for the last 18 years Dr. Alperin has conducted pre-employment physical examinations for a variety of industries, including at least one railroad company. One may reasonably intimate that during the normal course of his employment for these companies Alperin has accumulated much expertise in the area of a worker's qualifications for and ability to perform in various industrial positions which would be beyond the common knowledge of an ordinary layman. It would therefore belie all common sense to hold that on the basis of the present record Alperin did not have sufficient knowledge or experience to know whether a physical injury, such as the one suffered by plaintiff, would seriously affect or preclude employment with one of the 35 companies. Although Alperin did not examine plaintiff and was not a physician for defendant, his medical training and extensive experience in conducting pre-employment physical examinations justified admission of his testimony concerning the availability of employment in certain industries for one in plaintiff's physical condition.

Defendant also contends that the trial court erred in admitting the expert testimony of Raymond Stevens apparently on the basis that plaintiff had failed to establish Stevens' competency as an expert witness and, in addition, had failed to lay a sufficient foundation of Stevens' knowledge of custom and practice in the industry. We disagree. Mr. Stevens was called by plaintiff to testify about the custom and practice of various railroads in lifting and moving kegs of rail spikes. He had worked as foreman of "maintenance and track" for the Illinois Terminal Railroad from 1934 to 1972. During this time, he was responsible for all maintenance and construction of the railroad tracks and was familiar with his company's custom of moving kegs of spikes. Mr. Stevens also testified that he has observed the workmen of the Terminal Railroad Association of St. Louis and B & O Railroad many times and was familiar with the manner and custom in which they moved and lifted these kegs. On the basis of his experience and observations, he concluded that the customary method of lifting kegs of spikes was to utilize tie tongs, which method was safer than lifting by hand.

• 3 The above testimony demonstrates that Stevens was well qualified as an expert on the operations of railroad maintenance and construction and was familiar with the custom and practice of three railroad companies. Although Stevens was not acquainted with the operations of defendant, it was proper for Stevens to testify as to the custom in the industry. Custom and practice are a proper subject of expert testimony in a tort case (see McClure v. Suter (1978), 63 Ill. App.3d 378, 379 N.E.2d 1376) and may be proven, as in the present case, by testimony of specific conduct or habitual practice of other persons or railroads employing it, demonstrating a fairly regular course of conduct or practice. 2 Wigmore, Evidence §§ 379, 461 (Chadbourn rev. 1979).

• 4 Defendant argues next that the trial court erred in allowing plaintiff's instruction 23a, which listed one element of damages as being "the present cash value of the earnings reasonably certain to be lost in the future" resulting from plaintiff's injury, where plaintiff failed to introduce any specific evidence of how the jury could reduce mathematically future lost wages to present cash value. The simple response to defendant's argument is that there is no requirement in Illinois that plaintiff introduce actuarial or statistical evidence to guide the jury in determining the present cash value of future lost earnings. (See Lawson v. Belt Ry. Co. (1975), 34 Ill. App.3d 7, 339 N.E.2d 381; Wells v. Web Machinery Co. (1974), 20 Ill. App.3d 545, 315 N.E.2d 301; Pennell v. Baltimore & Ohio R.R. Co. (1957), 13 Ill. App.2d 433, 142 N.E.2d 497.) It is the function of the jury to determine the amount of damages arising in the future by computing its present cash value, and in the present case, the jury was so instructed (Illinois Pattern Instructions, Civil, No. 34.04 (2d ed. 1971)). We note that although actuarial testimony is not a prerequisite to the giving of an instruction on present cash value, such evidence is often helpful to juries in reducing damages to monetary figures and could have been presented by defendant had it felt the necessity therefor. Pennell v. Baltimore & Ohio Ry. Co.

Defendant also contends that plaintiff's counsel committed reversible error during his closing argument when he argued, in effect, that the jury should consider future inflationary trends in determining the present cash value of future lost earnings. During closing argument, counsel told the jury that it was their responsibility to reduce future lost wages to present cash value. He indicated that in arriving at this figure the jury must determine what a dollar invested now will get in the future. He added that "the dollar represents only one thing, and that's purchasing power." In explaining the meaning of the dollar's purchasing power, counsel told the jury to consider what the dollar was worth yesterday, what it is worth today and what it will be worth tomorrow.

• 5 In Kapelski v. Alton & Southern R.R. (1976), 36 Ill. App.3d 37, 343 N.E.2d 207, we relied on Raines v. New York Central R.R. Co. (1972), 51 Ill.2d 428, 283 N.E.2d 230, cert. denied (1972), 409 U.S. 983, 34 L.Ed.2d 247, 93 S.Ct. 322, for the proposition that this court will grant a new trial on the issue of damages on the basis of an allegedly inflammatory argument by counsel concerning the effect of future inflationary trends only where the record demonstrates that the verdict was the product of prejudice and not supported by "other proper evidence." A review of the record reveals ample support for the verdict. At the time of the crippling back injury, plaintiff, age 39, was earning $4.88 per hour. Had plaintiff been able to continue working, he would have been making $6.50 per hour at the time of trial as a result of pay increases. Plaintiff has only a high school education; is considered unemployable for many industrial positions; and continues to experience severe pain in his legs and lower back. Considering the elements of damages properly considered by the jury, including the nature, extent and duration of plaintiff's injury; the pain and suffering resulting therefrom; the reasonable medical expenses; the disability; the value of earnings lost; and the present cash value of future earnings, we can only conclude that the $315,000 verdict was supported by the evidence. In addition, we find no evidence that the verdict was influenced by the alleged improper argument. The statements made by plaintiff's counsel during argument simply stated what would appear to be obvious to the average juror and were not so inflammatory as to result in an excessive or inflated verdict. They were brief and merely stated the obvious.

Lastly, defendant complains of the trial court's refusal to give its tendered instruction No. 6 which stated, "You are instructed that any award made to plaintiff as damages in this case, if any award is made, is not subject to Federal or State income taxes and you should not ...

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