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Wilson v. Norfolk & Western Ry. Co.





Appeal from the Circuit Court of Madison County; the Hon. William E. Johnson, Judge, presiding.


On October 27, 1977, the plaintiff, Robert Wilson, was employed as a road electrician for the Norfolk and Western Railway, and had been so employed for approximately a year. The position of road electrician was, in railroad terminology, equivalent to that of a lineman for a power company, and Wilson had over 30 years' experience as a journeyman lineman. That day, he was performing work in Norfolk and Western's Fort Wayne, Indiana, yard while 25 or 30 feet above ground level in the fiberglass bucket of a piece of machinery known as the Baker B — 10 digger-derrick. During this work, he came in contact with high-voltage wires and suffered severe burns on his chest and left hand.

The plaintiff instituted the present action against his employer in the circuit court of Madison County. He alleged that his employer was liable to him under the Federal Employers' Liability Act (45 U.S.C. § 51 through 60 (1976)), specifically because it had failed to provide him with a safe place to work, because it had not given him a stable bucket in which to do elevated work, and because it had not furnished him with sufficient assistance to enable him to work in reasonable safety. Norfolk and Western, in turn, filed a third-party complaint against Baker Equipment Engineering Co., Inc., claiming that any injury sustained by the plaintiff was caused by the failure of Baker to design and manufacture a safe bucket truck. The case was tried before a jury, which found for the plaintiff in the amount of $618,750, and which found against Norfolk and Western in its third-party action. Norfolk and Western appeals from the trial court's entry of judgment on both of these verdicts, and argues that several errors acted to deprive it of a fair trial.

The appellant's first group of arguments relates to a prior inconsistent statement given by the plaintiff. At trial, one of the plaintiff's theories of recovery, as corroborated by his own testimony, was that the fiberglass bucket had tipped while he was working in it, forcing him into contact with the energized wires. After his injury, the plaintiff had dealings with Norfolk and Western claim agent Maurice Woods, who directed that a statement be taken from the plaintiff on January 4, 1978, and transcribed. In the course of that statement, the plaintiff gave his opinion that the bucket did not tip.

Norfolk and Western's attorneys took a deposition of the plaintiff on September 12, 1978. When the plaintiff was asked about the earlier statement, his counsel responded:

"I have read the statement, and I believe the circumstances under which it was obtained by a railroad claim agent, and I find nowhere that the railroad that he was not required to talk to the railroad claim agent or have benefit of counsel at that time. [Sic.] So, under those circumstances, I expect this statement would be held to be non-usable by the defense counsel, so I won't let the witness answer any questions regarding that statement."

On November 3, 1978, Norfolk and Western filed a motion to compel the plaintiff to answer questions pertaining to the previous statement, as well as certain other questions not pertinent to this appeal. That portion of the motion dealing with the statement to claim agent Woods was denied.

At trial, counsel for the railroad cross-examined the plaintiff about the contents of the statement. Counsel asked if the plaintiff had told Woods that the bucket had not tipped, and the plaintiff replied in the affirmative. The plaintiff was also asked why he had said that, and the plaintiff stated that "that's what he [Woods] wanted me to say."

On redirect examination, plaintiff's counsel inquired into the circumstances surrounding the giving of the statement. Counsel for the railroad objected to this line of inquiry because, among other grounds, the plaintiff had not been required to provide information about the statement when his deposition was taken. These objections were overruled.

The plaintiff recalled that Woods had picked him up at the hospital in Springfield, Illinois, when he was discharged from it on December 7, 1977. During the ride home, Woods told the plaintiff that he had a $500 check available at his office to cover the plaintiff's personal expenses. The plaintiff picked up that check a week later. About the first of January 1978, the plaintiff requested $1,000 more for personal expenses, and Woods allegedly told him that "the people in Roanoke [Va.]" first wanted a statement from him, since he had not filed an accident report. An appointment with a court reporter was later scheduled for January 4.

On that day, the plaintiff remembered, he came to Woods' office about an hour and a half before the reporter arrived. The plaintiff testified that he told Woods that he was injured when the fiberglass bucket moved. According to the plaintiff, Woods informed him that "the people in Roanoke" would not want the equipment criticized in the statement. The statement was taken, beginning at 10 that morning and concluding before lunch. The plaintiff received the requested $1,000 check after lunch.

Continuing the redirect examination, plaintiff's counsel asked whether the plaintiff had sought another advance from Woods after the statement was taken. He testified that, several weeks after January 4, he asked Woods for $925 for car insurance premiums. Woods told him that this would have to be approved by his superiors in Roanoke. A few days later, the plaintiff telephoned Woods to inquire about the advance, and Woods allegedly informed the plaintiff that he had already drawn advances which were "too near what the actual settlement would be," and therefore no more advances could be given.

The railroad called Maurice Woods to testify in its case in chief. Woods testified that, during the ride home from the hospital on December 7, 1977, he did not discuss money or settlement with the plaintiff. He also stated that, on January 4, 1978, the plaintiff arrived at his office only "a few minutes" before the statement was taken. Woods denied telling the plaintiff either that the railroad officials would not want to hear their equipment criticized or that any further advances were contingent upon the plaintiff's giving of a statement. He did recall that the plaintiff received an advance of $1,000 on the afternoon of January 4.

In February 1978, according to Woods, the plaintiff requested $3,500 to buy a new camper. Woods called Jack Ward, his superior, who told him that an advance could not be made for that particular purchase although further advances could be made to assist the plaintiff in obtaining necessities. Also in February 1978, the plaintiff requested that Woods send him a check for $950 for living expenses, including insurance premiums. Woods forwarded the request to Roanoke, but heard nothing more about it until the plaintiff called him to find out about the advance some time in March. Woods called his superiors, who informed him that the plaintiff was currently represented by an attorney and that therefore the requested advance should be denied.

Robert Hansen, who was a claim agent who had worked with Maurice Woods, also testified for the railroad. He had accompanied Woods to pick the plaintiff up at the hospital on December 7, 1977. Hansen testified that neither money nor settlement was discussed with the plaintiff at that time.

In rebuttal, the plaintiff called Thomas Dailey, who had formerly worked as a claim agent with Woods. Dailey testified that he had some knowledge of the plaintiff's claim, but he had not personally given the plaintiff any advances. According to Dailey, the plaintiff was in Maurice Woods' office at 8 a.m. on January 4, 1978, and the plaintiff was heard to tell Woods, before the reporter arrived, how the accident occurred. Dailey said that it was standard procedure for Norfolk and Western claim agents to review the facts with a claimant before a statement was made of record. Finally, Dailey alleged that Woods had told him, before the plaintiff's statement was taken, that he had the plaintiff "in the palms of his hands." Jack Ward, assistant chief claim agent for Norfolk and Western, testified as a surrebuttal witness that Dailey had been dismissed from the service of the railroad because he would not accept a transfer from Decatur, Illinois, to Fort Wayne, Indiana. In Ward's opinion, the decision to transfer Dailey was made because of Dailey's unsatisfactory work, because of a personality conflict with Maurice Woods and because of complications due to Dailey's outside business interests in Decatur.

The railroad objects to the exchange, as set forth in detail above, for four reasons. First, it argues that the failure of the court to allow it to examine the plaintiff about the statement during discovery resulted in unfair surprise when the plaintiff testified about the statement on redirect examination. Second, it is claimed that the plaintiff's explanation of the giving of the statement went far beyond the scope of cross-examination, in that he testified about events which occurred as early as a month before the statement was given and as late as a month after that date. Third, the rebuttal testimony of Thomas Dailey is characterized as improper impeachment by extrinsic evidence on collateral matters. Finally, throughout the course of the evidence on the plaintiff's dealings with the claim agents, the railroad contends that numerous impermissible references to settlement negotiations were made. We only need address the first of these arguments.

The Illinois Supreme Court Rules pertaining to discovery (87 Ill.2d Rules 201-219) have been broadly construed in order to encourage extensive pretrial disclosure. (Buehler v. Whalen (1977), 70 Ill.2d 51, 374 N.E.2d 460; Monier v. Chamberlain (1966), 35 Ill.2d 351, 221 N.E.2d 410.) The parties to litigation are entitled to inquire into matters which will be admissible at trial, as well as information which only leads to matters admissible at trial. (Elliot v. Board of Education (1975), 31 Ill. App.3d 355, 335 N.E.2d 33; City of Bloomington v. Quinn (1969), 114 Ill. App.2d 145, 252 N.E.2d 10.) Control of the discovery process is vested in the discretion of the trial court, and any orders made concerning discovery will not be modified on appeal unless the appellant makes an "affirmative showing of abuse." Stocker Hinge Manufacturing Co. v. Darnel Industries, Inc. (1978), 61 Ill. App.3d 636, 377 N.E.2d 1125.

The railroad argues that the trial court erred in denying its motion to compel the plaintiff to answer questions pertaining to the circumstances under which his statement was taken by claim agent Woods. Counsel for the railroad and for the plaintiff correctly note that Schusler v. Fletcher (1966), 74 Ill. App.2d 249, 219 N.E.2d 588, holds that a witness' explanation of his reasons for giving contradictory statements is admissible at trial. Therefore, since there is no doubt of the admissibility of the information sought by the railroad's counsel at the plaintiff's discovery deposition, and since none of the parties suggests the existence of any privilege or other facts which would render the information exempt from discovery, we agree that the court abused its discretion in not compelling the plaintiff to answer questions about his statement to claim agent Woods.

But, this type of error does not automatically compel the reversal of a judgment. Admission at trial of evidence which should have been disclosed during the discovery process but was not is not reversible error absent proof that prejudice resulted from the erroneous restriction of discovery. (See Schranz v. I.L. Grossman, Inc. (1980), 90 Ill. App.3d 507, 412 N.E.2d 1378; Smith v. Realcoa Construction Co. (1973), 13 Ill. App.3d 254, 300 N.E.2d 855.) Here, the railroad contends, as it did at trial, that it was surprised by the plaintiff's version of the events under which his statement was taken. It is claimed that, had the railroad known of the damaging nature of the accusations which the plaintiff would make against its claims employees on redirect examination, it would not have attempted to impeach him on cross-examination by referring to his prior inconsistent statement to claim agent Woods.

• 1 We believe that these allegations constitute a showing of prejudice to the railroad sufficient to require reversal. The trial court's denial of the railroad's motion to compel answers about the prior statement forced the railroad to proceed to trial with less than adequate preparation. Without knowing the substance of the plaintiff's potential testimony concerning the statement, the railroad could not have been able to make an informed decision whether or not to impeach him with it. And, it cannot be said that the railroad had constructive knowledge of the taking of the statement due to the presence of its claims employees at that proceeding, because the plaintiff's version of that event, which is what the railroad claims to have been surprised by, was entirely different from the version given by agent Woods.

The plaintiff argues that the overwhelming nature of the evidence against the railroad renders the discovery violation harmless at most. We do agree that substantial evidence has been introduced to prove the railroad's liability to the plaintiff, but given the size of the verdict rendered in favor of the plaintiff, we are not convinced that the judgment was unaffected by the testimony concerning the railroad's claims practices. The railroad was certainly at a disadvantage in not knowing how the plaintiff would explain his earlier statement, and compelling the railroad to proceed without that knowledge deprived it of a fair trial and mandates a new one. (Cox v. Yellow Cab Co. (1973), 16 Ill. App.3d 665, 306 N.E.2d 738, aff'd (1975), 61 Ill.2d 416, 337 N.E.2d 15.) A contrary holding would neutralize the beneficial effects of the discovery rules.

Baker Equipment Engineering Co. requests this court to affirm the third-party judgment in its favor, regardless of the disposition made of the plaintiff's action against the railroad. Baker asserts that "the evidence relevant to the third party action was presented in a straight forward manner, the jury was properly instructed on that aspect of the case, and returned a consistent verdict supported by the evidence." The railroad's theory in its third-party action was that, if it failed to comply with the Federal Employers' Liability Act, its failure was due to the fact that the Baker B-10 digger-derrick was not reasonably safe. Baker denied these ...

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