APPEAL from the Circuit Court of Cook County; the Hon. IRVING
R. NORMAN, Judge, presiding.
JUSTICE O'CONNOR DELIVERED THE OPINION OF THE COURT:
JUSTICE O'CONNOR delivered the opinion of the court:
This action was instituted by plaintiff, Virginia Mohler, widow of Harold Mohler and administrator of his estate, against defendants, Robert W. Blanchette, Richard C. Bond and John H. McArthur, trustees of Penn Central Transportation Company (Penn Central), to recover damages under the Federal Employers' Liability Act, 45 U.S.C. § 51 et seq. (1970), for a violation of the Safety Appliance Act, 45 U.S.C. § 1 et seq. (1970), which allegedly caused the death of her husband. Plaintiff's complaint was originally filed in 1970. In 1974 the case was dismissed for want of prosecution with leave to refile the action within one year. Plaintiff refiled the case in 1975 and the case was tried in July of 1980. The jury awarded plaintiff $500,000. Penn Central appeals seeking a new trial, contending that (1) evidence that decedent died as a result of a heart attack was improperly excluded from evidence; (2) certain hearsay statements made by decedent were improperly admitted into evidence; and (3) plaintiff's closing argument was improper. We affirm.
On December 28, 1967, decedent Harold Mohler was working as a brakeman in the caboose of Penn Central train No. 791 on its scheduled run from Kankakee, Illinois, to Zearing, Illinois. The train engineer Rene Benoit, the conductor D. Drazy and the brakeman Robert Shearer were riding on the engines. The train was just east of Reddick, Illinois, when it went into a recognized emergency situation called a "break-in-two" when the train broke into two sections. At the time the break occurred, the engineer Benoit was in the process of slowing down the train for a scheduled stop at Reddick. The speed of the train was estimated at between 10 to 15 or 20 to 30 miles per hour where the speed limit was 40 miles per hour. When the train broke in two sections, the train's emergency brakes applied automatically. A "terrific noise" or "loud whoosh sound" was heard throughout the train, in both the engine and the caboose. Shearer testified that at any speed ranging from 10 to 25 miles per hour, the caboose stops "suddenly and you have to hang on because otherwise you're going to get thrown on the floor" despite the fact that a good engineer could bring the engine section of the train to a smooth stop.
After the train stopped, a broken knuckle was discovered and a new one obtained from another train. After approximately a one-hour delay, the train continued on and eventually arrived at Streator, Illinois. At Streator, decedent went to the engine and asked Benoit what had happened at Reddick and was informed by Benoit of the emergency stop. Decedent then informed Benoit that he had been thrown against the wall of the caboose and had hit his head on the caboose wall. At that time, Benoit noted a cut on decedent's ear. Shearer testified to seeing approximately a tablespoon of blood inside decedent's ear.
When the train crew arrived at Zearing, they checked out at Ladd junction and proceeded by automobile to a local Holiday Inn. Shearer testified that Mohler seemed very tired, that he slumped down in the seat of the car and failed to respond to Shearer's repeated attempts to communicate with him. Shearer shared a room with decedent that night. He testified that decedent was not his usual self and seemed unusually tired. On the return trip on the morning of December 29, Shearer noted that decedent seemed unusually tired and not too conscious of what he was doing. At Zearing, decedent prepared an accident report.
Decedent's work assignment book indicates that he did not work all of his scheduled assignments after December 28, 1967. Mrs. Mohler explained the difference between the notations in the time book listed as "laid-in" and "laid-off." The former indicated that decedent was available for work, but that the job was cancelled; the latter indicated that he called in that he would not be working. Although decedent did work on December 29 on the return run from Zearing to Kankakee, he "laid-off" on December 30 and 31. Subsequent to December 28, 1967, and up to January 19, 1968, decedent worked assignments both as conductor and fireman without incident. Shearer worked with decedent on January 11, 1968, and noted nothing unusual.
Mrs. Mohler and her family testified to numerous incidents witnessed by them during the period between December 28, 1967, and January 19, 1968. Kathleen Mohler Tamasiewicz, a daughter, recalled a "very bad headache." Caroline Mohler, another daughter, testified to seeing blood on the side of her father's face and ear the day following the accident. She also related various incidents of unusual behavior: an episode where he abruptly left the room during a conversation with her, sat in a chair holding his head in his hands and did not respond to her questions; another incident of "moaning" and "making incoherent noises" while thrashing about in bed; and "listless" behavior at a New Year's Eve party where he was observed in a trance-like state.
Mrs. Mohler testified to numerous instances of Mr. Mohler's odd behavior: she noted that he was "particularly quiet" at the New Year's Eve party where at one point he "disappeared" and was found lying down in one of the bedrooms; sitting in a chair holding his head and complaining that his head hurt; uncharacteristically striking his daughter over a triviality; and a staring episode on January 17. Decedent's brother-in-law testified to Mohler's "lethargic" behavior at the New Year's Eve party.
Decedent's mother, Mildred Mohler, testified to a conversation between decedent and herself. This testimony is subsequently set forth herein.
On January 17-18, 1968, decedent worked as a conductor on the regular run from Kankakee, Illinois, to Elkhart, Indiana. Norman Phillips worked as the rear brakeman and noted nothing unusual about Mohler on that trip. On January 18 they stayed together at the Elkhart Y.M.C.A. and during the 22 hour and 50 minute layover he noted nothing that would make him think Mr. Mohler was in ill health or suffering from chest pains. On January 19, 1968, Mohler, Phillips and the rest of the train crew returned for work at the Robert Young railroad yard in Elkhart, Indiana, at approximately 3 a.m. Phillips went to the caboose, while Mohler went to the railroad tower to review instructions for the train. Approximately an hour later, Mohler came back to the rear of the train and climbed up into the caboose. Phillips testified that Mohler had just entered the caboose and did not respond to a question Phillips asked. Mohler had put his grip down when he suddenly collapsed to the floor, gasping for breath. Phillips told the railroad car inspector to call for an ambulance and a doctor. After three to five minutes later, Mohler's eyes rolled back into his head, he stopped breathing and his pulse and heartbeat disappeared.
Dr. Deland Burns, plaintiff's first medical witness, testified that at the request of Mohler's brother-in-law, Dan Hequet, he performed an autopsy on Mohler's body after it had been embalmed. Dr. Burns testified that it would have been much better to have performed the autopsy before embalming. The trocar, a pipe-like instrument used to insert embalming fluid, had totally penetrated Mohler's heart and Dr. Burns attributed all the heart damage he found to that fact. He noted that Mohler's heart was of normal size. Dr. Burns was unable to determine a cause of death. He testified to an abnormal accumulation of mucoid secretions in the lungs which obstructed some of the ramifications of the respiratory system, particularly the secondary bronchus to the right lower lobe and the tracheal bronchial tree. He stated that primary lung disease was not the cause of death and that the cause of death was not coronary related. While he was not able to determine an apparent cause, a focal central nervous system disturbance could be a primary initiating cause of death and could manifest itself in an occlusion of the tracheo-bronchial tree. Dr. Burns testified that head trauma can cause brain damage without being manifested in a skull fracture or even be perceivable to a person performing an autopsy three weeks later, and that he very well could have missed evidence for trauma. Dr. Burns agreed that if heart occlusions or arrhythmia occurred suddenly there might be no palpable change in the heart itself. He also testified that the trocar could have dislodged a pre-existing heart occlusion so that it would not be observable.
Dr. Joseph Segarra, the plaintiff's second medical witness, concluded that the cause of death was of primary central nervous system origin, in that the trauma to the brain resulted in a series of minor epileptic episodes manifested in the bizarre behavior witnessed by his family, leading to a disturbance in the respiratory mechanism which produced a constriction of the windpipes, leading to lack of oxygen and ultimately death. The minor epileptic episodes led to a laryngospasm which was indicated by the choking sounds heard by Phillips. He further testified that the lesions that lead to epileptic attacks can be very subtle and are only revealed upon sophisticated microscopic examination which involves the use of special stains to pick up the lesions. Dr. Segarra also observed that the decedent's work assignment time book appeared to be a very well-organized book which, on the date following the date of the accident, became disorganized and jumbled, indicating further evidence of a change in Mohler's behavior or cognitive abilities.
The Elkhart County Coroner, Dr. Westfall, was permitted to testify that he had no recollection of inquiring into the death of Harold Mohler on January 19, 1968, and that the summary and inquest of the death of Harold Mohler bore his signature, was made in the ordinary course of his business as coroner of Elkhart County on January 19, 1968, and states Mohler's time of death as 5:45 a.m. Dr. Westfall was permitted to read from the report as follows:
"This 36-year-old man collapsed and died suddenly at the Robert Young Railroad Yard in Elkhart. I pronounced the victim dead shortly after, beside the tracks near the caboose in the railroad yard. There was no evidence of violence or foul play. I ordered the body moved to the funeral home pending further arrangements. The said deceased being a male of the age of 36 years, six feet and one inches in height, black hair, gray eyes, medium complexion, nativity white."
Defendant submitted an offer of proof regarding the facts Dr. Westfall would have testified to if permitted: Pursuant to his official statutory duties as county coroner, Dr. Westfall interviewed witnesses and otherwise made an investigation into the facts surrounding Mohler's death in an attempt to determine the cause of death. On January 30, 1968, Dr. Westfall embodied his findings in his official report which in pertinent part stated as follows:
"This 36 year old man collapsed and died suddenly after suffering severe chest pains shortly after he reported for work at the Robt. Young R.R. Yard in Elkhart. The victim was in apparent good health but slumped over from a seat in the caboose of train #L53 with severe chest pain and died within minutes. Artificial resuscitation was attempted by witnesses but was unsuccessful. I pronounced the victim dead shortly after beside the tracks near the caboose in the R.R. yards. ...