Appeal from the Circuit Court of Cook County; the Hon. James
A. Geroulis, Judge, presiding.
JUSTICE O'CONNOR DELIVERED THE OPINION OF THE COURT:
On August 25, 1977, plaintiff, Thomas A. Hamrock, was seriously injured while working for defendant, Consolidated Rail Corporation, on a runaround track in Leetonia, Ohio. He brought suit against the railroad under the Federal Employees' Liability Act (FELA) (45 U.S.C. § 51 through 60 (1976)). After a trial, the jury found in favor of defendant and against plaintiff, who now appeals. He claims that the trial court erred in denying his post-trial motions and in refusing to give his jury instruction on assumption of risk. We reverse and remand for a new trial.
On the day of the accident, plaintiff was working as the head brakeman on the SL 1 and 2 train, which delivers and picks up railroad cars at various plants and facilities between the cities of Salem, Lisbon and Leetonia, Ohio. Plaintiff had been a railroad employee since 1960 and had worked as a brakeman on the SL 1 and 2 prior to his accident. The crew of the SL 1 and 2 consisted of an engineer, a fireman, a conductor named James Schiffhauer, a rear brakeman or flagman named Charles Girts, and plaintiff. The conductor was in charge of the train and received the switching instructions from the railroad clerks or agents. The head brakeman performs switching and coupling operations involving the locomotives at the front end of the train, while the rear brakeman performs the same operations involving the caboose and the rear end of the train.
Trains such as the SL 1 and 2 are equipped with air brakes which can be applied by the engineer in the locomotive. A brakeman on the lead car in a shoving movement can also apply the air brakes by turning a valve or angle cock which is attached to a series of air hoses which are connected from car to car. The angle cocks are located close by the coupling mechanism on the end of the car. The need to manipulate directly the angle cock can be eliminated by using a backup hose, which is basically an extended piece of hose which connects at one end to the air hose on the lead car of a shoving movement. The other end of the backup hose has a valve which allows the brakeman to control the speed of the train movement from a safe position.
On the day in question, the crew had boarded the train in Lisbon and proceeded to Leetonia, where they arrived at approximately noon. During the trip, plaintiff rode in the engine while Schiffhauer and Girts rode in the caboose. The caboose was relatively new, having been used for the first time on the previous night. It contained a toilet, table, bunk and water as well as other train equipment including a checklist listing the equipment on board.
Upon arriving at Leetonia, the conductor and flagman came up to the engine to give instructions on the movements to be made. The crew was to drop off 19 cars from Lisbon and then pick up 21 empty hopper cars for delivery to Lisbon. This task involved at least two coupling maneuvers on the runaround track, which is a section of auxiliary track connected to and running parallel to the main track line. The runaround track in Leetonia was located to the west of the main line, which ran in a north-south direction. On the day in question, because of the ground conditions and poor visibility along the runaround track, the conductor decided to perform the coupling maneuvers using angle cocks on the individual cars rather than by passing hand signals to the engineer. No backup hoses were used. During the coupling maneuver, the train blocked all the railroad crossings in Leetonia. Coupling maneuvers are dangerous and care must be taken to prevent hard coupling which might cause derailment or damage to the contents of a loaded car.
Plaintiff and the engine crew (engineer and fireman) placed the 19 cars from Lisbon on the runaround track. Girts was stationed where the north end of the runaround track joined the main track in order to make another coupling after the first coupling was accomplished by plaintiff. The conductor was in the SL 1 and 2 caboose. Plaintiff and the engine crew coupled the 21 empty cars onto the SL 1 and 2 locomotives and pulled them onto the main line so they could be shoved in a northerly direction and coupled onto the SL 1 and 2 caboose, which was situated on the north end of the runaround track.
Plaintiff walked behind the lead car on the north end of the train and turned the angle cock with his hand to apply the air brake. The angle cock was on the west side of the runaround track. As the train proceeded north, plaintiff boarded the lead car using a side ladder and positioned himself on the small ledge behind the coupling mechanism. He faced away from the car and held onto two upright braces on the front of the hopper. His right foot was on the ledge and his left foot was in position to apply the air brake by manipulating the angle cock. The angle cock was about 12 inches to the left and 6 inches below his right foot. The train had traveled about three car lengths when his right foot slipped on grease that was allegedly covered by coal dust. Although he attempted to regain his balance, he was unable to do so and his right foot was crushed in the coupling.
Conductor Schiffhauer was on the platform of the standing caboose and saw plaintiff on the hopper car. After plaintiff slipped and his right foot was caught, Schiffhauer ran south along the roadway on the east side of the runaround track to the locomotives. He told the engineer to call an ambulance and had the fireman assume a position on the east side of the track so the two of them could relay signals to move the train and free plaintiff. After they did so, plaintiff was taken by ambulance to a hospital. Eventually several of his toes were amputated.
Upon receiving notice of the accident, the railroad dispatched John R. McCarthy and Charles Guveiyan to conduct an investigation. Both men were specifically instructed to determine whether the SL 1 and 2 caboose was equipped with a backup hose. When the two men arrived in Leetonia at approximately 3:30 p.m. on the day of the accident, they spoke briefly with members of the crew. They then entered the caboose and located a backup hose hanging in an equipment locker. Later that day, they also took a joint statement from the crew.
At trial, plaintiff testified that he boarded the empty hopper car because ground conditions made it impossible to walk along the side of the train on which the angle cock was located in order to reach in and manipulate the angle cock from the side. The ground conditions also prevented the passing of hand signals. Although he initially denied knowing what a backup hose was, he later admitted that he did know how a backup hose was used. However, he denied that he had ever used one. At the time of his accident he was not aware of the backup hose in the caboose. He was familiar with the railroad's safety rules but stated that he and other train men customarily rode moving cars and manipulated the angle cock with their feet.
Conductor Schiffhauer testified that he decided to make the movements using the angle cocks on the individual cars rather than passing hand signals. He stated that each individual crew member exercises his own judgment as to how he will perform his part of the move once the conductor informs them of the move to be made. He further stated that there were different ways to make the move made by the plaintiff in that some men positioned themselves with their backs to the coupling they were trying to make and others would face the coupling, depending on whether they could use their right or left foot to their advantage. He did not know that there was a backup hose in the caboose and he had never been furnished with a backup hose prior to plaintiff's accident. He said that even if he had been given a backup hose he would not have used it because it took too long to hook up and to make the air test with the engineer. He previously requested, but never received, radios which would have enabled the coupling maneuvers to be done safely.
Flagman Girts testified that plaintiff had been making the move in the usual and customary manner under the circumstances when he was injured. Both Girts and other trainmen had made the move in a similar manner. On the day in question, he had intended to accomplish his coupling by walking alongside the car and reaching in to manipulate the angle cock. He stated that he was not aware of a backup hose in the caboose. He presumed that hand signals could have been relayed if all three men of the ground crew had been involved in making plaintiff's coupling but that would have left no one to make the second coupling. He also requested radios, but had never received one. He also stated that the Leetonia police and fire departments would put pressure on the crew to open the crossings when the crossings were tied up for more than 8 or 10 minutes.
John McCarthy testified that, as a safety supervisor for the railroad, his responsibilities included implementing the railroad's safety program and investigating employee accidents. Based on his investigation of plaintiff's accident and his past experience, it was his opinion that plaintiff's injury was ...