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06/15/94 ROBERT H. HARRISON v. CHICAGO AND

June 15, 1994

ROBERT H. HARRISON, PLAINTIFF-APPELLANT,
v.
CHICAGO AND NORTHWESTERN TRANSPORTATION COMPANY, A CORPORATION, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County. Honorable Walter B. Bieschke, Judge Presiding.

Greiman, Tully, Cerda

The opinion of the court was delivered by: Greiman

JUSTICE GREIMAN delivered the opinion of the court:

Plaintiff Robert Harrison brought suit under the Federal Employees' Liability Act (45 U.S.C. § 51 et seq. (1988)) (FELA) for injuries sustained while an employee of defendant Chicago and Northwestern Transportation Company. The jury returned a verdict for defendant, and plaintiff appeals on grounds that: (1) the verdict was against the manifest weight of the evidence; (2) the trial court erred by allowing the testimony of a defense witness whose statement had not been revealed to plaintiff until shortly before trial, not requiring defendant to produce the witness' personnel file, and interrupting his cross-examination of the witness with disparaging remarks; and (3) the trial court further erred by permitting defendant's former medical director to give opinion testimony although not disclosed as an expert witness.

We affirm the trial court.

Plaintiff applied for work with defendant in 1979 when he was 25 years old. As part of the application process, plaintiff had to successfully complete a physical examination including an inspection of his legs and knees conducted by Dr. Thomas Cook, director of defendant's medical and rehabilitation programs. Plaintiff testified at trial that, when he began working for defendant, he had no knowledge of any disability regarding his knees which functioned properly during his previous employment where he performed heavy manual labor.

The record shows, however, that plaintiff had a serious degenerative knee condition which probably began during his teenage years. Specifically, plaintiff experienced a condition commonly known as severe tilting of the kneecap which resulted in a chronic partial dislocation of the kneecap. Since plaintiff's condition existed for years before his employment with defendant, the wearing away of the cartilage in his knees progressed to the point where the top and bottom surfaces of the knee joint, as well as the backside of the kneecap, were devoid of any cartilage and rubbed bone against bone. Two of plaintiff's treating physicians as well as defendant's consulting physician testified that plaintiff's knee condition was the type that one would notice and could be expected to cause pain and disability.

When plaintiff began working for defendant, he learned safety rules related to his job as a "trackman" responsible for repairing worn railroad ties. After a few months, plaintiff became an assistant foreman and then a foreman responsible for his and his crew's safe performance of duties.

Defendant commonly employed track laborers to assist in repairing railroad tracks in various areas. It was common practice for defendant and in the industry for laborers to replace worn out railroad ties manually. Groups of laborers engaged in the replacement of ties were called "tie gangs" if they used heavy machinery and "section crews" if they repaired the track by hand. Whereas tie gangs could be expected to repair several hundred ties a day, section crews could repair only 8 to 10 ties per laborer each day.

During the initial years of plaintiff's employment, a section crew generally consisted of a foreman, an assistant foreman and three or four trackmen. As time progressed the number of manual section crews decreased due to cost reduction efforts and track abandonments such that the amount of work or geographical area covered per crew continued to expand. However, the per day work quota for track laborers remained the same.

In 1985 plaintiff started a business as a chimney sweep while he worked as the foreman of a manual section crew with another trackman, Thomas Kneebone.

On November 5, 1985, plaintiff and Kneebone were assigned to Harvard, Illinois to work on a side track known as the Sharon side track. Plaintiff testified that a mechanized tie gang worked in the nearby area, although Kneebone disputed this assertion. Plaintiff also testified that, upon arriving at the train station in Harvard, he telephoned his superior, roadmaster Michael Ellis, for instructions. According to plaintiff, Ellis reported that defendant needed the Sharon track repaired for immediate service. Ellis no longer was employed by defendant at the time of trial and was unavailable to testify.

Plaintiff further testified that upon arriving with Kneebone at the Sharon track, he determined critical deficiencies such as poor tie and ballast conditions and plate disbursal of the rail below track joints. He also determined approximately 200 to 250 ties needed replacement. Plaintiff stated that he did not think he and Kneebone could replace all those ties in one day but planned to replace as many as possible to open the track that day. Plaintiff opined that defendant failed to provide them with a safe place to work that day considering the amount of labor they were expected to complete.

Kneebone testified that he discussed that day's work plans with plaintiff and plaintiff never informed him that the track had to be in service that day or that returning the track to service was an emergency. According to Kneebone, plaintiff did not appear to be in a hurry as he worked. Kneebone stated that plaintiff never told him that they were required to replace approximately 200 ties that day, and characterized the proposition that two men would attempt such a feat as "laughable." He and plaintiff were simply going out to "fix a few bad spots" on the track, and he planned on replacing no more than 20 ties that day, the average quota for two men.

To replace the ties, plaintiff decided that Kneebone would dig the holes in which the ties would rest and he would drag the railroad ties, which weighed over 250 pounds, to the holes before placing them under the track. Plaintiff never asked Kneebone to assist him drag any tie although two men dragging a tie would disburse the weight more evenly. While plaintiff dragged the tie he secured his footing, bent his knees and avoided twisting or jerking positions in accordance with defendant's safety manual. Plaintiff also used tie tongs as he was trained to do for moving ties.

Although plaintiff followed the instructions he had received as part of his training and as contained in the railroad's work rules, while moving a tie he felt a burning sensation in his left knee. Because of the pain, he and Kneebone stopped working on the Sharon track and returned to Harvard where plaintiff consulted with a company doctor who wrapped his knee in bandages and gave him some aspirin.

When the pain persisted, plaintiff sought relief from an emergency room physician who placed his leg in an "immobilizer" and, thereafter, consulted Dr. James Berg who later testified that the bursting of cartilage around plaintiff's kneecap resulted from a preexisting condition brought to a head by the force generated by the weight of his body plus the weight of the railroad tie he was attempting to drag. Dr. Berg performed knee surgery upon plaintiff in November 1985 and, since plaintiff's leg was not healing properly, again in July 1986. Following the second ...


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