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02/19/88 Darrell Patrick Jolley, v. Consolidated Rail

February 19, 1988

DARRELL PATRICK JOLLEY, PLAINTIFF-APPELLEE

v.

CONSOLIDATED RAIL CORPORATION, DEFENDANT-APPELLANT

APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY; THE HON. JOHN

v.

VIRGILIO, JUDGE, PRESIDING. APPELLATE JUDGES:



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION

522 N.E.2d 109, 167 Ill. App. 3d 1002, 118 Ill. Dec. 654 1988.IL.229

JUSTICE MURRAY delivered the opinion of the court. LORENZ, P.J., and SULLIVAN, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MURRAY

Defendant, Consolidated Rail Corporation, appeals from a judgment awarding plaintiff, Darrell Patrick Jolley, $1,050,000 in a personal injury action brought by plaintiff under the Federal Employers' Liability Act (45 U.S.C. § 51 (1982)) and the Federal Safety Appliance Act (45 U.S.C. § 1 (1982)). On appeal, defendant contends: (1) the trial court erred in submitting plaintiff's Safety Appliance Act claim to the jury, thereby eliminating its contributory negligence defense; (2) the award of $1,050,000 is excessive for the injury claimed; and (3) newly discovered evidence illustrating the falsity of plaintiff's conduct and injury testimony mandates a new trial. For the reasons set forth below, we affirm.

The pertinent facts are as follows. Plaintiff was employed as a conductor by defendant railroad. On February 3, 1983, during a trip to Chicago from Pennsylvania, plaintiff was injured while riding in the caboose of defendant's train when a "run-in" of 100 freight cars occurred after the train's engineer applied the automatic brake to stop the train at defendant's Westwood, Ohio, station. *fn1 Plaintiff testified at trial that the run-in occurred as a result of defective brakes on the train, as well as the negligence of defendant's engineer in failing to recharge the air brake system (i.e., to pump sufficient air into the system) before leaving the railroad's Toledo station immediately preceding the Westwood station where the run-in occurred. According to railroad procedure, in order to determine if there is sufficient air in the air brake system, a "set-up and release" test must be performed. A set-up and release consists of a test of the brakes by the engineer in which the air brakes are applied just enough so that they can be observed visually and then released. Once proper pressure is reached, here 75 pounds, the conductor gives the engineer a "highball sign" to release the brakes and to move the train out of the station to its next destination.

The foregoing procedure was followed without incident at defendant's Fairlane station, the station immediately preceding the Toledo station, which in turn preceded the Westwood station. The procedure was not followed, however, before leaving the Toledo station. Instead, as plaintiff testified at trial, while he was on the rear platform of the caboose and his flagman, Leo Rogers, was on the ground nearby, he heard the air being pumped back into the air brake system and was waiting for the full recharge and the set-up and release test when the engineer, Barry Walker, suddenly and unexpectedly began to pull the train out of the Toledo station before the air brakes had been pumped up to the required 75-pound level, without doing a set-up and release, and without waiting for a go-ahead signal from plaintiff. Rogers reacted by immediately jumping onto the caboose and plaintiff went to get his radio from inside the caboose. Plaintiff then asked Rogers to look at the air gauge to see what the air pressure was, and Rogers responded that it read 45 pounds of air. Plaintiff also heard the wheels on the caboose "sliding" (i.e., the wheels were not turning), which indicated that there was insufficient air pressure in the brakes to cause a release. Thereafter, plaintiff attempted to call Walker three times but received no answer. Although there was an emergency brake in the caboose to stop the train, plaintiff believed to use it was unsafe, i.e., "about 20 different [damaging] things" could have happened to the train from tearing the train in half to derailment. As a result, plaintiff told Rogers to sit down at a table bolted to the floor and wall in the caboose and to brace himself, and plaintiff did the same. The train subsequently reached a speed of 20 to 25 miles per hour and, upon reaching the Westwood station, the engineer applied the air brakes to stop the train, but, because of the low pressure in the system, the rear of the train came to a slower stop than the front of the train, causing a run-in. The force of the stop tore the table off the wall; Rogers was propelled over the table into plaintiff; and plaintiff was hit in the upper body by the table which jammed down on his hands and arms, his shoulders hit the top of the seat, and his head hit the steel bulkhead.

Leo Rogers, plaintiff's flagman, testified similarly concerning the events leading up to the run-in of the railroad cars at the Westwood station.

Barry Walker, defendant's engineer, testified that according to the air flow gauge located in the engine, there was sufficient air in the air brakes to smoothly stop the train at Westwood. Specifically, Walker stated that prior to departing the Toldeo station he did not "get any response from the rear end, no radio response," so he used the same procedure he normally did in preparing to pull out of the station. He watched the air flow gauge and, based on the fact that he had less cars in the train than he had at the Fairlane station, which immediately preceded Westwood and where he had performed a set-up and release test without incident, he "figured when [he] got to the same place on the . . . gauge [number 4] . . ., which indicated that he should have a release on the rear end," it was all right to leave. Walker further stated that he applied the automatic brake all the way [to counteract any slack action] until he reached an "approach signal" before Westwood and then "pulled it on up to Westwood Avenue, just gradually . . . decreasing the brake" until he stopped, which he considered to be a good stop, until the run-in.

After the stop at Westwood, the conductor of a new crew did a set-up and release test of the air brakes, the test was satisfactory, and the train proceeded on its route without further incident with the same equipment. Plaintiff and his crew were driven back to the Toledo station in a company car. Plaintiff, at his request, was then taken to a hospital emergency room where he was treated for a cut on a finger of his left hand and examined with respect to a pain in his neck area. During the next week, plaintiff visited his family doctor, complaining of numbness and pain in various parts of his body. A week later, he complained to his doctor that he was experiencing numbness and throbbing in his right hand. His doctor referred him to Dr. William Fischer, an orthopedic surgeon. After examining plaintiff, Dr. Fischer concluded that plaintiff might be suffering from "carpel tunnel syndrome," a condition whereby the median nerve leading to all the fingers except the little finger and half of the ring finger becomes compressed by tendon and bone in the wrist space (carpel tunnel) leading to the hand. Dr. Fischer referred plaintiff to Dr. William Stromberg, an orthopedic surgeon specializing in hand injuries. He concurred in Dr. Fischer's diagnosis and subsequently performed a 45-minute out-patient surgery upon plaintiff's hand, removing excess tissue surrounding the nerve to relieve the pressure thereon.

The condition of plaintiff's hand seemed to improve for approximately a week following the surgery. Thereafter, however, plaintiff complained that the pain, numbness, stiffness, and lack of grip strength that he had had prior to the surgery returned. Subsequently, plaintiff gave up his employment with the railroad and became a real estate salesman. At trial, plaintiff testified that due to his complained-of injury he could not push open a door without experiencing a severe shooting pain; he could not grasp anything heavy without experiencing shooting pains; his loss of grip strength and numbness made it difficult for him to pick up small objects, button a shirt, hold a fork, or pick up his glasses; the stiffness in his wrist made it difficult to bend his wrist; he could not use his right hand to drive since it would become numb on the steering wheel; he could no longer play golf or toss a ball with his children; and he could not, in his opinion, throw a switch or set a hand brake as required in performance of his railroad employment. He also complained of various pains and numbness in his left hand, right elbow, and neck.

Based on plaintiff's continuing complaints and various tests, Dr. Stromberg subsequently concluded, and Dr. Fischer concurred, that plaintiff had suffered a 40% permanent disability to his right hand, rendering him unable to return to railroad work; plaintiff's grip strength in his right hand was 60 pounds per square inch, 40 pounds less than his grip strength in his left, nondominant hand, notwithstanding that plaintiff's right hand grip strength should have been at least 10 to 20 pounds greater than that in his left hand.

Plaintiff was also examined by three of defendant's orthopedic surgeons. They could not find any injury sufficient to preclude plaintiff from returning to his railroad work; they testified that all X rays of the right wrist were normal, grip strength was good, and there was no atrophy of the right arm, hand, or wrist.

With respect to plaintiff's damages, Charles Linke, an economist, calculated plaintiff's economic loss based upon what an average railroad worker plaintiff's age could be expected to earn from the time of plaintiff's injury until his expected retirement. Dr. Linke assumed that an average worker would retire at 58.4 years of age and that plaintiff's loss would amount to: $139,000 lost earnings prior to trial; $30,745 in fringe benefits lost prior to trial; $834,877 lost in future earnings; and $183,676 lost in future fringe benefits (or a total loss of $1,096,417). Linke's sums were arrived at by reducing the amounts by an average income tax rate which was 20% to 25% higher than plaintiff's actual tax rate. Linke also stated that assuming plaintiff could earn $20,000 per year as a real estate salesman and/or appraiser, his future lost earnings as a railroad worker could be reduced by 37% or $310,000.

At the Conclusion of the trial, defendant moved for a directed finding in its favor on plaintiff's Safety Appliance Act claim, contending that plaintiff had failed to prove that there was anything defective or wrong with the train's brakes. Defendant's motion was denied and, over defendant's objections, the court gave the jury instructions on the Safety Appliance Act issue, as well as instructions pertaining to plaintiff's Federal Employers' Liability Act negligence claim. Thereafter, in answer to two special interrogatories, also given to the jury over defendant's objections, the jury expressly found against defendant on the Safety Appliance Act violation and, having been instructed that contributory negligence was not a damage-reducing factor under the Act, made no reduction in the $1,050,000 damages which it awarded to plaintiff. Although the jury was instructed not to use the negligence verdict ...


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