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08/25/94 ALVA R. THOMAS v. NORFOLK AND WESTERN

August 25, 1994

ALVA R. THOMAS, PLAINTIFF-APPELLEE,
v.
NORFOLK AND WESTERN RAILWAY COMPANY, A CORPORATION, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Madison County. No. 91-L-1641. Honorable A. A. Matoesian, Judge Presiding.

Petition for Leave to Appeal Denied December 6, 1994.

Welch, Maag, Lewis

The opinion of the court was delivered by: Welch

JUSTICE WELCH delivered the opinion of the court:

On December 30, 1991, Alva R. Thomas (plaintiff) filed in the circuit court of Madison County a one-count complaint against his employer, the Norfolk & Western Railway Company (defendant), alleging a violation of the Federal Safety Appliance Act ("Safety Appliance Act") (45 U.S.C.S. § 11 (Law. Co-op 1981 & Supp. 1994)). Specifically, plaintiff alleged that on August 23, 1991:

"[He] was working as a member of a switching crew located at Defendant's Coapman Yard, at or near East St. Louis, Illinois, when he was injured in whole or in part due to [defendant's] violation of the * * * [Federal] Safety Appliance Act by failing to provide him with safe and suitable steps on one of Defendant's cabooses."

On February 18, 1992, defendant filed its answer. Following discovery, the case was tried from March 8, 1993, to March 11, 1993. First to testify in plaintiff's case-in-chief was Neal Hammack, defendant's claim agent, who investigated the accident. Hammack testified that defendant's inspection report concerning plaintiff's accident and, in addition, a report sent to management both noted the presence of oil on the caboose step involved.

Lance Johnston, conductor of the train on the night plaintiff was injured, testified, inter alia, that: after pulling into Coapman Yard in East St. Louis, he observed defendant sitting on the step of the caboose; defendant stated that he had injured his knee when he slipped off the caboose step; defendant was unable to walk; he observed oil on the bottom of plaintiff's boot; he and Ron Johnson, a train master from Granite City who arrived on the scene about 40 minutes after the accident, inspected the caboose; he observed footprints from one end of the caboose to the other where plaintiff had apparently been walking in oil; the footprints originated from the restroom; on the restroom floor was a spilled bottle of oil and some paper towels that had been placed on top of the spill; he did not know exactly how much spilled oil was on the restroom floor; and although he did not personally find any oil on the steps leading to the caboose, he would not disagree with the report stating that there was oil on the step in question.

Ron Johnson, a train master working for defendant, testified, inter alia, that: he investigated plaintiff's accident; while questioning plaintiff about the accident, he observed oil on the bottom of plaintiff's boot; when he asked plaintiff about the oil, plaintiff stated that he was unaware that he had oil on his boot; he saw oil footprints on the floor of the caboose; he found a puddle of oil on the restroom floor; the bottle containing the oil, which was clear and similar to a shampoo bottle, held approximately 12 ounces and was used to holdsamples of engine oil; there was no reason for such a bottle to be in a caboose; based on the investigation, he determined that plaintiff slipped on the step; and it was an unsafe and hazardous condition with oil on the floor and on the step.

In a video evidentiary deposition, Doctor Forbes McMullin, a board-certified orthopedic surgeon specializing in the knee and hip, testified, inter alia, that: he treated plaintiff; on January 9, 1992, he performed a second arthroscopic surgery on plaintiff's knee; on October 2, 1992, he performed reconstructive surgery on plaintiff's knee; he advised plaintiff not to return to work with the railroad but instead to find some work that would be less stressful on his knee; plaintiff's injury is permanent and disabling; plaintiff should refrain from activities that would place increased forces on his knee such as squatting, climbing, bending, walking on uneven terrain, or "any type of forceful activity in regard to his knee"; as to future medical treatment, plaintiff may require another arthroscopy or may need to have his kneecap removed or may require some type of prosthetic replacement; and plaintiff's injury is painful and will continue to be painful.

Plaintiff testified, inter alia, that: he began working for the defendant as a switchman at the beginning of 1991; as a switchman, he was required to walk on ballast (i.e., the rock placed around the rails), climb to the top of railroad cars, kneel in order to connect air hoses under the cars, adjust draw bars (i.e., steel bars used to couple cars together), and throw switches, which required one to bend down at the legs, grab the switch, and stand it up with one's legs; on August 23, 1991, he was working as a member of a night crew on a job to transfer a train from the A.O. Smith Yard located in Granite City to the Coapman Yard located in East St. Louis; sometime around 4:00 to 4:30 a.m., he boarded the caboose section of a train destined for Coapman Yard while the other members of his crew (i.e., the conductor and engineer) rode in the engine; once on the caboose, he noticed the lights were not working; he proceeded to turn on his lantern, sit down at a table, and have a cup of coffee; during the approximately two-hour trip, he sat, "kind of watched and drank coffee," used the bathroom on the caboose two or three times, and also moved around in the caboose; when the train arrived at Coapman Yard just before daylight, he went to dismount the caboose to throw a switch; he dismounted the caboose, after it stopped, by backing down the steps while holding the railing on either side with his hands; when he put his right foot on the second step, it just slipped off "straight down to the ground," and when the foot hit, the knee twisted to the right; because he had a secure hold, he did not fall butinstead managed to pull himself up; when he slipped, he heard a pop and noticed that his knee started hurting "real bad"; when he looked at his knee, he saw that it was swollen and turning red; after seeking initial medical attention at Christian Northwest Hospital, he went and saw a specialist, Doctor Herbert Haupt, who performed an examination of the knee and took some X rays and some MRIs; Dr. Haupt later performed arthroscopic surgery; plaintiff was told not to work by all three doctors that he had seen (i.e., the doctor he saw at Christian Northwest Hospital, Doctor Haupt, and Doctor McMullin); he was a "sports nut" who engaged in many physical activities before the accident, such as softball, baseball, basketball, tennis, running, weight lifting, and water skiing; he used to bicycle and walk with his wife; defendant had offered him a choice of a janitorial position or a yard clerk position, but both jobs would require him to do things that his knee would not allow him to do (e.g., bend, kneel, or walk on ballast); he would start with zero seniority if he took either job, and there was no guarantee that the jobs would remain in St. Louis; his family and his wife's family lived in the St. Louis area; and his wife worked in St. Louis.

Finally, plaintiff testified in detail concerning: (1) the course of his treatment with both Doctors Haupt and McMullin; (2) his recovery and physical therapy; and (3) the pain he suffered as a result of the injury and the operations.

Doctor Leroy Grossman, a professor of economics at St. Louis University, provided testimony on plaintiff's damages. According to Doctor Grossman, plaintiff's past lost wages totaled $55,500.00, and his future lost wages, reduced to present value, totaled $932,602.00 if plaintiff worked until age 63. Thus, plaintiff's total damages for past and future wages were $988,102.00. If, however, plaintiff worked until age 67, his future lost wages would be $1,021,295.00. In that case, plaintiff's total damages, including the $55,500.00 past lost wages, were $1,076,795.00. These future lost-wage figures did not take into account plaintiff working a minimum wage job. If plaintiff worked a minimum wage job until age 63, his damages, including past lost wages of $55,500.00, totaled $765,286.00; but if he worked until age 67, his damages, including past lost wages, totaled $832,788.00. These damage calculations pertained only to plaintiff's economic losses and did not consider any noneconomic losses such as pain and suffering.

Doctor Samuel Bernstein, a licensed psychologist, vocational expert, and the chief executive officer of the Metropolitan Employment and Rehabilitation Service (a rehabilitation agency), testified that: he evaluated plaintiff's medical, educational, and employment background; he evaluated plaintiff's psychological condition andadministered some tests; based on his examination, he concluded that while plaintiff could not return to work for the railroad, he could perhaps get back into the security field; plaintiff, with his disability, and without training or skills, would be "very limited" in the labor market; plaintiff could, with some difficulty, obtain an associate degree in the corrections or security field; it was unlikely that plaintiff could go beyond the associate degree level; and with such a degree, plaintiff would earn about $4.50 to $6.00 an hour.

At the close of plaintiff's case-in-chief, defendant moved for a directed verdict. The trial court denied defendant's motion. Defendant then proceeded with its case-in-chief.

James M. England, Jr., a rehabilitation counsellor, testified that: plaintiff would be able work in the mail sorting, copying, or security fields, which he had done in the past; based on his conversations with the railroad, plaintiff could work as a clerk with physical restrictions; and if plaintiff earned an associate degree in a field such as security, medical terminology, medical lab technician, drafting, or data processing, he could earn $10.00 an hour as a starting wage.

Also testifying for defendant were Richard S. Hayth, defendant's assistant manager for disability and support services; Charles Wagoner, a terminal control agent for defendant in St. Louis; and Fred Williams, superintendent of terminals for defendant in St. Louis. Both Hayth and Wagoner testified about the possibility of plaintiff working, in some capacity, for defendant. Williams' testimony concerned the earning potential of plaintiff and other similarly situated railroad employees. Lastly, the evidentiary deposition of Doctor Herbert Haupt was read into evidence. Essentially, this testimony concerned the possibility that plaintiff may have had some preexisting knee injury.

At the close of all the evidence, the trial court took judicial notice of 49 C.F.R. section 231.10(i) (1991), which governs caboose-platform steps. This regulation provides: "Safe and suitable box steps leading to caboose platforms shall be provided at each corner of caboose. Lower tread of step shall not be more than 24 inches above top of rail." (49 C.F.R. § 231.10(i) (1991).) Plaintiff then moved for a directed verdict on the issue of liability, which the trial court granted. The jury returned a verdict in favor of plaintiff in the amount of $1,255,500.00, itemized as follows:

(1) aggravation of preexisting ailment/condition $0

(2) disability and disfigurement $250,000

(3) past and future pain and suffering ...


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