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Kottmeyer v. Consolidated Rail Corp.





APPEAL from the Circuit Court of St. Clair County; the Hon. PATRICK FLEMING, Judge, presiding.


Plaintiff, Eugene Kottmeyer, filed a two-count complaint in the circuit court of St. Clair County against the defendant, Consolidated Rail Corporation, seeking recovery for injuries alleged to have been sustained in a fall on August 29, 1976. Count I asserted negligence under the Federal Employers' Liability Act (45 U.S.C. §§ 51-60 (1976)); and it was there alleged that at the time of his injury, plaintiff was employed by the defendant for purposes of the Federal Employers' Liability Act (hereinafter FELA). Count II charged common law negligence based on the duty of a landowner to persons on or about its property.

Following a jury trial, a verdict was returned in favor of plaintiff, and damages were awarded in the amount of $175,000. In answer to a special interrogatory, the jury found that the plaintiff had been employed by the defendant at the time of his injury. Judgment was entered on the verdict, and defendant has perfected this appeal.

On appeal, defendant asserts that the trial court erred in refusing to direct a verdict in its favor on count I of the complaint on the grounds that insufficient evidence was submitted to establish that plaintiff was employed by defendant at the time of his injury, as required for recovery under the FELA. The defendant also urges that the trial court erred in its ruling on various evidentiary matters and that the damages awarded by the jury were excessive.

The record reveals that on August 29, 1976, the plaintiff was employed by Pennsylvania Truck Lines, Inc. (hereinafter PTL), which was a wholly owned subsidiary of the defendant, Consolidated Rail Corporation (Conrail). PTL performed two basic services for Conrail. One such service was "ramp" or "yard" work, which consisted chiefly of the loading and unloading of trailers onto and off of railroad flat cars in connection with Conrail's "piggyback" operation. In loading and unloading trailers, PTL employees were required to raise and lower stanchions, climb up and down the flat cars and carry and use various tools. Ramp or yard work also included the performance of minor repairs on stanchions, hand brakes, and railroad cars. It also included the "jockeying" of trailers from one part of the yard to another with yard trucks, which were not permitted to operate on the highways. At the Roselake yard in Fairmont City, Illinois, where plaintiff's alleged injury occurred, only PTL employees performed ramp or yard work. In addition to the ramp or yard work, PTL also performed "street" work, which consisted of the hauling of trailers by truck over the road from one railroad yard to another. There was evidence that, in addition to PTL, 30 to 50 other drayage companies performed street work at the Roselake yard.

Evidence admitted at trial in the form of admissions of fact indicated, among other things, that PTL was a wholly owned subsidiary of Conrail; that the Roselake yards were owned and operated by Conrail; that all of the piggyback cars loaded and unloaded at the Roselake yards arrive and depart on trains owned or operated by Conrail; that PTL was not operating as an independent common-carrier under ICC authority; that under the Regional Rail Reorganization Act of 1973, until title V, section 505, Conrail notified the plaintiff on February 26, 1976, that as an employee of Conrail he was to continue working in the same position, the same location, and the same work that he held as of April 1, 1976 [sic]; that Conrail is the only railroad for which PTL performs terminal services, such as loading and unloading trailers on flat cars; and that Conrail and PTL filed a consolidated income tax return for the years 1977 and 1978.

At trial, Terry Abernathy was called by plaintiff as a witness under section 60 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 60). Abernathy testified that he was employed by Conrail as terminal manager at the Roselake yard. He further stated that his job entailed supervision of the loading and unloading of railroad flat cars and that he was also in charge of maintenance in the area of the yard where the piggyback operation was conducted.

Abernathy related that his office at the Roselake yard (designated as a "trailvan" office) was located on property owned by the defendant and that the PTL truck garage was also located on the same property. PTL leased the garage from Conrail as well as the property surrounding the garage, according to Abernathy. He estimated that the distance from the "trailvan" office to the PTL truck garage was 100 feet, and he stated that a 40-foot storage trailer was located between those buildings.

The witness further testified that at the time of the plaintiff's injury, a line of timber, consisting of two or three timbers abutting each other, extended from a concrete curbing on one end of the property to a point about four feet from the PTL truck garage. The timbers were 8 to 10 inches high and 8 to 12 inches wide. They were referred to as "bridge timbers"; and, according to Abernathy, they were procured by him from the track department at the request of the PTL manager. Abernathy stated that the timbers were anchored into place with bridge plate rods, which were driven into the ground and bent over the tops of the timbers. Nails were then driven into the top of the timbers and bent over the bridge plate rods.

Abernathy related that the bridge plate rods sometimes came loose when tractors or the wrecker bumped against them. He stated that he had seen the rods loose and protruding above the top surface of the timbers on previous occasions. He also had been informed of loose rods by others and had been asked to get them repaired. On those occasions he informed PTL of the condition, and the rods were repaired two or three times.

Abernathy testified that the PTL employees at the Roselake yard did both ramp work and street work. He stated that PTL put up a starting list every day, designating who was to do ramp work and who was to do street work. Abernathy denied that he had anything to do with these assignments and specifically denied that he assigned the plaintiff to the work he was doing when he was injured.

The witness stated that in his capacity as supervisor for Conrail's piggyback operation it was his responsibility to see that the trains were loaded and left the yard on schedule. This responsibility included seeing that the PTL ramp workers did their work within a reasonable length of time. Abernathy observed that he sometimes requested that the men speed up their work and that they almost always complied with his requests. Abernathy was on the ramp only "once in awhile," but Conrail did have a full-time programmer. Abernathy further testified that he had given orders to ramp workers and PTL dispatchers but not to the PTL manager.

Abernathy also testified that on one occasion he left the terminal and went to the scene of an accident when a trailer capsized while being hauled by a PTL employee. Abernathy stated that he returned to the terminal and instructed a PTL driver to haul an empty trailer to the scene of the accident. Once the capsized trailer was upright, Abernathy instructed another PTL driver to haul it away from the scene. This was the only occasion Abernathy could recall in which he gave instructions to PTL employees doing street work. It is noteworthy that there is no evidence that it was necessary, or that Abernathy deemed it necessary, for the consent or approval of PTL to be sought before taking charge at the scene of the wrecked trailer.

The plaintiff next called Jack Hopkins, who testified that he had been employed by PTL for 18 years. He stated that he had done both ramp and street work. He noted that the number of men assigned to work a certain shift was determined by the railroad schedule on a day-to-day basis and that the workers were selected according to seniority. Hopkins related that the railroad would tell the PTL dispatcher if extra men were needed on a shift or if some of the men were to report to work earlier than usual.

Hopkins stated that he saw Terry Abernathy in the yards once in awhile and that Abernathy would occasionally ask the men to speed up the work and they usually complied. Conrail employees also informed ramp workers about changes in the trailers to be loaded, and Hopkins was sometimes told by railroad personnel that certain trucks had priority over others for loading purposes.

The testimony of two other long-time PTL employees closely followed that of Jack Hopkins. Additionally, they noted that PTL employees would break and replace the seals of trailers at the request of and in the presence of Conrail employees. Furthermore, occasionally when doing street work, the PTL employees would be given a delivery dispatch by the railroad clerks in the railroad office.

The plaintiff, Eugene Kottmeyer, testified that in August of 1976, his regular job assignment was yard work, a position for which he had "bid" for a period of 30 days. On the Friday before his injury, the plaintiff "signed up" for yard work on Saturday and street work on Sunday.

According to plaintiff, on Sunday, the day of his injury, he reported for work at the Roselake yard at 10 a.m. Plaintiff related that at 3 or 3:30 in the afternoon he drove his tractor back to the Roselake yard after delivering a trailer and that he pulled in on the right side of the road next to a line of timbers in front of two or three other tractors. Plaintiff stated that after parking, he got out and walked around the front of the tractor on his way to the PTL truck garage and that when he reached the passenger side of his tractor, he stepped up onto one of the timbers with his left foot. He testified that he made a pivot to his right, came across with his right foot, and then tripped and fell forward on his right knee and both hands. He related that after he got up he saw a rod sticking up about 2 1/2 inches above the timber. Plaintiff recalled that there were nails driven into the timber but that they were not securing the rod.

Plaintiff further testified that after his fall, he obtained another dispatch and left to deliver another trailer. He said that his leg hurt at this time but that he did not worry because he had fallen before. Plaintiff stated that the pain continued, however, and that after delivering the second trailer, he punched the time clock and went home.

Plaintiff stated that on the following day he reported to the yard but was unable to work because of the condition of his leg. The same morning Dr. Goldenberg, the company doctor, X rayed the leg, treated it with ultrasound and had it wrapped. He ...

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