APPEAL from the Circuit Court of Cook County; the Hon. JAMES
A. GEROULIS, Judge, presiding.
MR. JUSTICE JIGANTI DELIVERED THE OPINION OF THE COURT:
Rehearing denied November 20, 1980.
The plaintiff, Charles E. Faircloth, filed a two-count complaint against the defendant, Norfolk & Western Railway Company (Norfolk), under the Federal Employers' Liability Act (45 U.S.C. § 51 et seq. (1976)). He sought to recover for knee injuries allegedly resulting from two accidents which occurred while he was working for Norfolk. The jury found for the defendant on each accident. Faircloth appeals from the judgment entered on the verdicts and seeks a new trial on the ground that the verdicts were contrary to the manifest weight of the evidence. He also appeals from the denial of his post-trial motion for a new trial on the grounds that the court abused its discretion or refused to exercise its discretion.
Faircloth presented two occurrence witnesses on each accident and submitted evidence as to damages. Norfolk denied liability but presented no evidence. Due to our disposition, we find it unnecessary to relate the evidence concerning damages.
The first accident occurred on January 2, 1974, at Norfolk's Front Street yard in Ohio. Faircloth and his supervisor at the time of the accident testified concerning this accident.
Conductor Charles Fuller testified that on January 2, 1974, he was supervising the crew to which Faircloth was assigned. Faircloth reported to work on Fuller's crew about midway through the shift to replace a crew member who had left the job early due to illness.
Fuller instructed Faircloth that the crew was going to attempt a "three car kick." That is, three cars were to be separated from a 15-car train and allowed to roll onto another track. Cars are detached from the rest of the train by lifting a cutting lever which is located between every two cars.
Fuller started the movement after Faircloth stated he was ready. Faircloth took two or three steps alongside the train which was moving at five to seven miles per hour. Fuller saw Faircloth put his hand on the grabhandle of the car. This is done so that the switchman can support himself while lifting the cutting lever. Faircloth reached between the cars as if to pull the cutting lever. He disappeared between the cars then came "shooting out," landing clear of the train.
Fuller testified that the condition of the track was "very poor on high-low joints." When asked to describe or define a high-low joint, Fuller related the following. A rail is 33 1/2 feet long. At the end of each rail is a joint. The joint consists of a ballast, tieplate, and tie. The tieplate is two pieces of metal with a bolt through them. Under the tieplate is a tie. Under the tie is a ballast. A high-low joint occurs when, after years of wear, the ballast and ground are washed away causing the tie to eat into the ground. This may cause a depression of up to 12 inches. The joint appears to be in good condition, but when heavily loaded cars roll over it they sink into the depression at the high-low joint. This causes the cars to swing violently.
According to Fuller, there were two high-low joints within 12 feet of one another in the area of the accident. Prior to the accident there had been 35 derailments in an unspecified 45-day period.
As Faircloth attempted the three-car kick the cars were swinging violently. The cars were empty. Faircloth was right over a high-low joint as he reached between the cars for the cutting lever. Fuller did not see the high-low joint, but he knew where it was located.
After the accident Fuller inspected the rail cars and found nothing the matter with them. There was nothing improper about the speed of the train or the actions of the crew members. At the time of the accident there were six inches of snow on the ground. No salt or other material had been spread on the snow.
On cross-examination Fuller testified that he had not been subpoenaed to testify but had appeared at Faircloth's request. He traveled from Toledo, Ohio, to appear at trial. He no longer worked for Norfolk because he had been "disqualified."
Faircloth testified that he began working for the railroad in April of 1971. On the date of the accident he was employed as a switchman. He stated that he reported to work at approximately 5 p.m. on the date of the accident. Fuller told Faircloth that the crew was going to switch a string of cars and that the first movement would be a three car kick. Faircloth was instructed to lift the cutting lever and to hold it in order to make certain it stayed up. He was told there had been trouble in the past with the lever staying up. He testified that the lever was ...