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12/29/94 WILLIAM J. HILES v. NORFOLK AND WESTERN

December 29, 1994

WILLIAM J. HILES, PLAINTIFF-APPELLEE,
v.
NORFOLK AND WESTERN RAILWAY, COMPANY, A CORPORATION, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Madison County. No. 91-L-1605. Honorable Phillip J. Kardis, Judge, presiding.

The Honorable Justice Welch delivered the opinion of the court: Goldenhersh and Lewis, JJ., concur.

The opinion of the court was delivered by: Welch

JUSTICE WELCH delivered the opinion of the court:

On December 26, 1991, William J. Hiles (plaintiff), filed a one-count complaint against the Norfolk & Western Railway Company (defendant) in the circuit court of Madison County. Plaintiff brought his action under the Federal Safety Appliance Act (Safety Appliance Act) (45 U.S.C.S. sec. 1 et seq. (Law. Co-op 1981 & Supp. 1994)). In relevant part, it was alleged:

"3. That on July 18, 1990, the plaintiff *** was working as amember of a switching crew located at Defendant's St. Louis Yard, at or near St. Louis, Missouri. At that time, in the course and scope of his duties, he was required to go between two railroad cars to straighten a misaligned draw bar and was injured attempting to "straighten" said drawbar, all in violation in whole or in part of the aforesaid Safety Appliance Act."

On May 20, 1993, defendant filed an amended answer raising, inter alia, the affirmative defense that "plaintiff's claim that the drawbar or coupler was not aligned was a result of simple misalignment and not the result of defective equipment." Also on May 20, 1993, defendant filed a motion for summary judgment and a supporting memorandum of law. In pertinent part, defendant's memorandum states:

"Plaintiff has filed a cause of action for injuries allegedly resulting from realigning a drawbar between rail cars. Plaintiff *** has not presented any evidence of a defective drawbar or coupler system. Plaintiff claims per se liability under the Federal Safety Appliance Act based on a slewed drawbar.

[Defendant] has clearly established, through the Affidavit of General Foreman Walter A. Miller, Jr., the drawbar and coupler involved in the subject occurrence were not defective at the time of plaintiff's alleged injury. This evidence is uncontested.

If [defendant] can prove the slewed drawbar was cause [sic] by something other than defective equipment, it will avoid liability under the Safety Appliance Act."

The trial court denied defendant's motion for summary judgment. Relying on Buskirk v. Burlington Northern, Inc. (1982), 103 Ill. App. 3d 414, 431 N.E.2d 410, 59 Ill. Dec. 125 (railroad held liable as a matter of law under the Safety Appliance Act where employee went between railcars and injured his back while struggling to realign a drawbar that had failed to automatically couple), plaintiff filed a motion for directed verdict on May 20, 1993. According to plaintiff, the evidence was uncontradicted that "he went between two cars which failed to couple automatically and *** while aligning a misaligned drawbar, he was injured." As a result, plaintiff concluded that he was entitled to a directed verdict based upon this court's Buskirk decision.

The trial court agreed and granted plaintiff's motion for a directed verdict on the issue of liability. Defendant made an offer of proof that consisted of the testimony of two employees. Walter Miller, a general foreman, stated that his inspection did not reveal any kind of mechanical defect in the drawbar on the car involved in plaintiff's injury. Larry Fauver, a switchman who was working with plaintiff at the time of the injury, stated that the drawbar was slued. Defendant also submitted plaintiff's discovery deposition and certified questions and answers in support of the offer of proof.

On May 21, 1993, defendant filed a motion for a directed verdict at the conclusion of all the evidence. The trial court denied the motion, and the jury returned a verdict in favor of plaintiff. Defendant's posttrial motion was denied on October 21, 1993.

On appeal, defendant argues that the trial court erred: (1) by allowing plaintiff to present evidence of a per se violation of the Safety Appliance Act without requiring a showing of a defect in the drawbar or coupler and further erred by directing a verdict in favor of the plaintiff on the issue of liability; and (2) when it improperly excluded evidence that the misaligned drawbar was not caused by defective equipment or that it was caused by something other than defective equipment and further erred by denying the defendant's motions for directed verdict on the issue of its liability under the Safety Appliance Act. We disagree.

The operative section of the Safety Appliance Act upon which this case was tried makes it "unlawful for any such railroad [engaged in interstate commerce by railroad] to haul or permit to be hauled or used on its line any car not equipped with couplers coupling automatically by impact, and which can be uncoupled without the necessity of men going between the ends of the cars." (45 U.S.C.S. sec. 2 (Law. Co-op Supp. 1994).) The purpose of section two is "to obviate the risks to employees by reason of their going between railroad cars to ...


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