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05/11/95 JOHN D. LUTHER v. NORFOLK AND WESTERN

May 11, 1995

JOHN D. LUTHER, PLAINTIFF-APPELLEE,
v.
NORFOLK AND WESTERN RAILWAY COMPANY, A CORPORATION, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Madison County. No. 90-L-1354. Honorable George J. Moran, Judge, presiding.

The Honorable Justice Goldenhersh delivered the opinion of the court: Welch, J., concurs. Justice Lewis, dissenting

The opinion of the court was delivered by: Goldenhersh

JUSTICE GOLDENHERSH delivered the opinion of the court:

Defendant, Norfolk and Western Railway Company, appeals from a judgment in favor of plaintiff, John Luther, in an action brought by plaintiff under the Federal Employer's Liability Act (FELA) (45 U.S.C. § 51 et seq. (1986)), for back injuries allegedly sustained while working as a track laborer. The circuit court of Madison County entered judgment on a jury verdict awarding plaintiff $1,572,500. Defendant contends that (1) the trial court erred in directing a verdict against defendant on the issue of plaintiff's contributory negligence; (2) the trial court erred in admitting evidence of inapplicable and irrelevant Occupational Safety and Health Act (OSHA) (29 U.S.C. § 651 et seq. (1985)) regulations; (3) the trial court erred in permitting plaintiff to present evidence of defendant's surveillance tapes of plaintiff; (4) the trial court improperly permitted plaintiff's expert to give previously undisclosed opinions; (5) the trial court erred in permitting plaintiff to file numerous amendments during trial; and (6) the verdict was excessive and a product of passion and prejudice. We affirm.

I

This action arose from an injury plaintiff sustained in the course of his employment for defendant as a track laborer in an extra gang that replaced defective rail. Plaintiff held this position from 1979 until 1988. On August 19, 1988, plaintiff was assigned to work at the Jennings, Missouri, job site. Plaintiff, William Burg, foreman, and Mike James, assistant foreman, comprised the extra gang. Usually, anywhere from three to five additional laborers are part of the gang. On this particular day, plaintiff was the only laborer. The men were assigned to replace defective track on the main line at Jennings, Missouri. The gang was shorthanded and working under track time, meaning the gang had a certain amount of time to complete work on the track so as to not interfere with the train schedule. Plaintiff testified that shortly after arriving at work, plaintiff, Burg, and James took the company truck to Luther Yard to pick up the material they needed for work that morning. The materials plaintiff picked up included bolts, spikes, and 20 pairs of angle bars. Plaintiff stacked the materials alongside the tool boxes in the truck bed. After picking up the material, the gang headed for the mainline tracks to begin replacing the defective rails. To remove defective rail, the rail is cut into a 10-foot-long section. Then, the defective rail is cut into three pieces, which are placed in the truck bed. Each piece of rail weighs about 110 to 132 pounds. Plaintiff testified that at the time of the occurrence, there were about 8 to 10 pieces of defective rail in the back of the truck, along with other tools and materials the gang used that morning.

As the gang was about to move on to the next job site, Burg told plaintiff to put away the rail saw which had been used to cut out the defective rail. The rail saw weighs about 40 pounds. Plaintiff climbed onto the back of the truck bed, and James handed him the saw. Plaintiff grabbed the saw and turned around in the spot where he was standing and looked for a safe place to lay the saw down. Plaintiff observed a clear space near the box where the rail saw is normally stored. The storage box is located in the front of the truck bed near the cab. Plaintiff testified he could not go directly to the saw box due to the pieces of rail and other materials in the truck bed. Further, plaintiff testified that he could not place the rail saw on top of the pieces of old rail, angle bars, and debris because the blades of the rail saw could easily chip, thereby creating a safety hazard - a damaged blade could cause the saw to "explode" while in use. Moreover, to place the rail saw on top of the debris is a violation of company safety rules. Plaintiff navigated his way to the clearing, bent his knees, and reached out to place the saw in the vacant space. As he reached out, plaintiff fell to his knees, dropping the saw. Simultaneously, plaintiff felt a sharp pain in the middle of his back. Burg hopped onto the truck to assist plaintiff. Burg testified that plaintiff appeared to be in a lot of pain. Plaintiff asked to be taken to a hospital as the pain grew worse. Another worker took plaintiff to St. Elizabeth's Hospital in Granite City, where he was hospitalized for about a week. Plaintiff further testified that prior to the accident, he never experienced any back pain. Plaintiff stated that since the accident he experiences constant back pain with associated problems in his extremities.

Burg and James testified that laborers are responsible for keeping the truck bed clean. Burg stated that the foreman determines when, during the day, laborers are to clean up the truck. Burg further testified that, on the day of the occurrence, the gang had only one laborer, plaintiff, and they were working under a time constraint. Burg stated: "[Because of these conditions,] I had no intentions of having anyone clean the back of the truck because we used it as a working platform for the materials we used throughout the day." Additionally, Burg testified that defendant did not have a safety policy requiring work crews to keep the truck beds clean while working.

Plaintiff's physician, Dr. Ravi Shitut, an orthopedic surgeon, testified that plaintiff suffers from degenerative disk disease, which is caused by the normal aging process. According to Dr. Shitut, this condition was aggravated by plaintiff's accident. Dr. Shitut explained that plaintiff's condition is inoperable because it involves three disks. Surgical treatment for degenerative disk disease is, in Dr. Shitut's opinion, limited to two disks at the most. Dr. Shitut stated that plaintiff's symptoms of back pain and degenerative disk disease are permanent and that the only treatment available for plaintiff is exercise, using heat on the affected area, and taking anti-inflammation and nonsteroidal analgesic-type medications. Regarding plaintiff's ability to return to his laborer's job, Dr. Shitut testified that as a result of plaintiff's injuries, he is unable to resume his work as a railroad laborer.

Defendant's company physician also examined plaintiff and determined that plaintiff, due to lower back pain, did not conform to the standard required for the position of laborer. Testifying as a medical expert for defendant, Dr. John Atkinson, a rheumatologist and arthritis specialist, also examined plaintiff. Upon his review of plaintiff's medical record and a physical examination of plaintiff, Dr. Atkinson determined that plaintiff did not have secondary degenerative arthritis but did suffer from degenerative disk disease. Further, Dr. Atkinson testified that he could not find a medical explanation for plaintiff's continuing discomfort and recommended that plaintiff undergo a work-hardening program to increase his muscle tone and strength.

Plaintiff's economic expert, Dr. Leroy Grossman, testified that in the four years between plaintiff's injury and the time of the trial, plaintiff suffered a loss of $77,704 in lost wages. Dr. Grossman opined that plaintiff, age 38 at the time of the trial, would suffer future lost earnings of $536,785 if he retired at age 63 and that this figure would rise to $589,618 if plaintiff retired at age 66.

Jack Strader, plaintiff's rehabilitation counselor and vocational expert, testified that plaintiff was learning disabled and suffered from depression and continuing pain due to his back injury. As a result of these factors, plaintiff was not presently employable. Strader opined that should plaintiff overcome these difficulties, he could probably secure employment in an unskilled, minimum wage job such as custodial/maintenance-type work.

Defendant offered expert testimony from an occupational therapist and a rehabilitation counselor. Douglas Cole, an occupational therapist, was called to testify regarding plaintiff's ability to perform work. After reviewing plaintiff's records, Cole opined that plaintiff could perform work at the sedentary, light-or medium-level categories with restrictions, such as no highly repetitive squatting, kneeling, or bending activities. James England, a rehabilitation counselor, also reviewed plaintiff's records and recommended that plaintiff receive tutoring or on-the-job training in order to enter into a new career. Based on plaintiff's record, England opined that the types of work plaintiff can do, with additional training, include drafting, dental lab technician, cabinet-making, locksmith, small engine repair, and taxidermy.

At the close of all the evidence, plaintiff filed a motion for directed verdict on the issue of contributory negligence, which the trial court granted. The trial court denied defendant's motion for directed verdict on the issue of the affirmative defenses of contributory negligence and failure to mitigate damages.

The jury returned a verdict in favor of plaintiff and awarded $1,572,500 in damages. The trial court denied defendant's posttrial motion for judgment notwithstanding the verdict and for a new trial. Defendant now appeals.

II

Defendant first argues that the trial court erred in directing a verdict for plaintiff on the issue of contributory negligence. Defendant contends that, at trial, sufficient evidence was adduced of plaintiff's knowledge of the allegedly dangerous condition and of plaintiff's fault in creating the unsafe condition by failing to clean the truck bed. Defendant argues that because there was evidence of plaintiff's contributory negligence, the trial court should not have directed a verdict for plaintiff but, rather, it should have submitted the issue of plaintiff's contributory negligence to the jury. We disagree.

It is well established that in a FELA case, the defendant is entitled to a contributory negligence instruction if there is any evidence to support the theory. ( Pruett v. Norfolk & Western Ry. Co. (1994), 261 Ill. App. 3d 29, 33, 632 N.E.2d 652, 655, 198 Ill. Dec. 322; Uhrhan v. Union Pacific R.R. Co. (1993), 155 Ill. 2d 537, 547, 617 N.E.2d 1182, 1187, 187 Ill. Dec. 461.) Nonetheless, the burden of proving plaintiff's contributory negligence is on the defendant. ( Uhrhan, 155 Ill. 2d at 547, 617 N.E.2d at 1187.) Our supreme court defined contributory negligence as "a careless act or omission on the plaintiff's part tending to add new dangers to conditions that the employer negligently created or permitted to exist." (Emphasis added.) ( Uhrhan, 155 Ill. 2d at 548, 617 N.E.2d at 1187 (citing Taylor v. Burlington Northern R.R. Co. (9th Cir. 1986), 787 F.2d 1309, 1316).) Directed verdicts should be granted only when all the evidence, viewed in the light most favorable to the opponent, so overwhelmingly favors the movant that no contrary verdict based on that evidence could ever stand. Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 229 N.E.2d 504.

Defendant maintains that plaintiff acted negligently and that the jury could have disbelieved plaintiff's testimony and inferred that, based merely on the fact that the accident occurred, plaintiff failed to exercise due care. To support its contention, defendant relies on Uhrhan v. Union Pacific R.R. Co. (1993), 155 Ill. 2d 537, 617 N.E.2d 1182, 187 Ill. Dec. 461.

In Uhrhan, the plaintiff, working at night as a switchman, was injured when he tripped over a piece of wire while walking alongside the tracks. There was no light in the area where the plaintiff was working. However, the plaintiff had a lantern with him. The lanterns were used to signal other switchmen and to illuminate the area while walking through the yard. Plaintiff was aware of the possibility of debris alongside the track. Also, the railroad had a safety rule requiring workers to be on the lookout for tripping hazards. At trial, the jury found in favor of the plaintiff and awarded him $17,000. The jury further determined that the plaintiff had been 40% contributorily negligent and reduced his recovery accordingly. Judgment was entered in favor of the plaintiff in the amount of $10,200. The appellate court reversed the jury's finding of contributory negligence, finding no evidence warranting the submission of contributory negligence instructions to the jury. Our supreme court reversed the appellate court, holding that a defendant in a FELA case is entitled to have a jury instructed on contributory negligence if there is any evidence to support the theory. Further, the supreme court found that evidence of a safety rule violation raises a question of fact as to contributory negligence. Thus, the supreme court concluded that a jury could have reasonably determined that the plaintiff's actions added additional dangers to the situation.

Defendant's reliance on Uhrhan is misplaced. According to Uhrhan, we review the record to determine if there is any evidence that plaintiff's omissions or actions added additional dangers to the situation. If plaintiff's actions or omissions increased the danger to himself, defendant is entitled to raise the issue of contributory negligence. However, defendant is not entitled to reach the jury on the issue of contributory negligence, for which defendant bears the burden of proof, on nothing more than defendant's disbelief of plaintiff's testimony. ( Dixon ...


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