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11/03/89 Sadie A. Carter, Adm'r of v. Harbor Belt Railroad

November 3, 1989





547 N.E.2d 488, 190 Ill. App. 3d 1052, 138 Ill. Dec. 321 1989.IL.1743

Appeal from the Circuit Court of Cook County; the Hon. James Traina, Judge, presiding.


JUSTICE McNAMARA delivered the opinion of the court. QUINLAN and LaPORTA, JJ., concur.


Plaintiff Sadie A. Carter, administrator of the estate of decedent Robert E. Carter, and plaintiff Rickey Carter filed suit against defendant Indiana Harbor Belt Railroad Company (the railroad), Transportation Displays, Inc. , a subsidiary of Winston Network, Inc., and WCTU Railway Company, after Robert and his son Rickey were struck by a passing train while painting a viaduct. Robert died as a result of his injuries. A jury awarded damages to Rickey in the sum of $60,000 and to the estate in the sum of $2,357,800 against the railroad and TDI, and the court entered judgment on the verdicts. The railroad and TDI appeal, and the appeals were consolidated. The trial court directed a verdict in favor of WCTU Railway, and plaintiffs do not appeal from that decision. No third-party actions or cross-claims were filed.

On appeal, the railroad makes the following contentions: that the jury's verdicts are against the manifest weight of the evidence because TDI's conduct in permitting plaintiffs to work on a viaduct without notifying the railroad was an unforeseeable intervening act; that the trial court erred by precluding it from introducing into evidence a provision contained in the contract between TDI and an advertiser, establishing TDI's control over plaintiffs; that a mistrial should have been granted following emotional outbursts by plaintiffs' witnesses; and that the damages awarded were excessive as a matter of law.

TDI's contentions are as follows: that it is entitled to judgment notwithstanding the verdict because it owed no duty to plaintiffs and because its conduct was not the proximate cause of the injuries; that it was error to introduce evidence of a post-occurrence notification procedure which TDI adopted; and that the court erred in admitting into evidence the contract between TDI and an advertiser for the lease of the viaduct.

On June 30, 1981, a railroad employee discovered a door on a boxcar had bulged outward due to an unsecured load of newspaper rolls which were each 20 feet high and 5 feet in diameter, and weighed 8,000 pounds. The goods were reloaded and the bulge was repaired, but there was no protection for the doorway if the paper shifted again, and there was nothing to prevent the shifting. On June 30, the car was placed back onto a 70-car train. The load shifted, and the door bulged once again.

The train, moving at five miles per hour, passed a viaduct owned by the railroad and being painted by decedent and Rickey. Two other trains had already passed the painters with no problems. Charles Davis, a switchman for the railroad, sat in the engine at the head of the train and he observed the scaffold and the men working on it, but could see no problem as he looked back to see the train moving past the painters. Rickey looked back from where he stood on the scaffold and saw that one boxcar had a bulge. He heard a loud screeching sound as the train struck the scaffold, and the door of the boxcar snagged the hooks of the scaffold, pulling it down. Rickey was injured, and decedent died from his injuries on August 27, 1981.

The trainmen were not aware of the accident. When the train arrived in the yard, the 16th car forward from the caboose had a door handle torn off, a bulge in the door, and fresh scrape and burn marks on the door. The door bulged out 8 to 10 inches. An investigation report indicated there was a large roll of paper loaded against the door, causing a 12-inch bulge.

TDI's contract with the railroad gave TDI exclusive rights to sell advertising on the viaduct in question. The railroad and TDI shared the advertising revenue.

In 1975, TDI rented advertising space on the same viaduct and informed the railroad. In 1978, TDI again rented the same advertising space, and again informed the railroad.

In 1981, TDI entered into an agreement with Pal Construction for an advertisement on the viaduct. The contract between TDI and Pal provided that the railroad must be notified "prior to start of any work or painting at this location." The railroad received no notification that decedent and Rickey would be painting the viaduct in June 1981. Decedent owned a painting company, B & G Quality Signs, and was hired by TDI to do the painting.

Evan Gollrad, TDI's account executive in Chicago for 25 years, testified that neither Pal nor B & G was responsible for informing the railroad of the painting. Gollrad stated that even if he had known the painting was to take place ...

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