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10/03/95 JEROLD EDWARDS v. ALTON & SOUTHERN RAILWAY

October 3, 1995

JEROLD EDWARDS, PLAINTIFF-APPELLEE,
v.
ALTON & SOUTHERN RAILWAY COMPANY, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Madison County. No. 91-L-201. Honorable George J. Moran, Judge, presiding.

Petition for Leave to Appeal Denied January 31, 1996. Certiorari Denied May 28, 1996,

Presiding Justice Maag delivered the opinion of the court: Goldenhersh, J., and Rarick, J., concur.

The opinion of the court was delivered by: Maag

PRESIDING JUSTICE MAAG delivered the opinion of the court:

The defendant, Alton & Southern Railway Company, appeals from a judgment in favor of the plaintiff, Jerold Edwards, in an action brought by the plaintiff under the Boiler Inspection Act (45 U.S.C.A. ยง 23 (West 1986)), for neck and back injuries allegedly sustained while working as a machinist. The circuit court of Madison County entered judgment on the jury verdict awarding the plaintiff $1,454,000. The defendant appeals. We affirm.

This action arose from an injury the plaintiff suffered during the course of his employment as a machinist for the defendant. Plaintiff's job was to inspect locomotives at the "pit", which is that portion of the E Track, the service and inspection track, that is alongside the "roundhouse." Generally speaking, inspections, fueling, sanding, and small repairs are done on locomotives at the pit. Major repairs to the locomotives are performed inside of the roundhouse.

On the day of the accident, July 15, 1988, the plaintiff was splitting a four-engine group into a two-engine group. The first and third units were to be coupled together, as were the second and fourth units. This job is ordinarily performed by a machinist. Before the engines were separated, the plaintiff performed his inspection. When an inspection is made by a machinist, he walks around the locomotive to look for anything that might be wrong. It is mandatory that the track upon which the equipment is located be locked out or "blue-flagged" if the machinist determines that it is necessary to work on a piece of equipment.

The plaintiff did not know if the locomotives had been checked for fuel and sand before the accident. It is the hostler helper's job to check for sand and fuel and, if necessary, fill them up. It is important to note that the plaintiff testified that they only fuel and sand engines if they need it. The plaintiff also testified that at the time of his accident, the inspection was complete and the engines were ready to go. The plaintiff's testimony in this regard was uncontradicted.

The plaintiff testified that at the time of the accident, he had completed his inspection, and the track was not blue-flagged. The third and fourth units were separated from the first and second units and driven from E Track to F Track. While units three and four were being driven to F Track, the plaintiff noticed that the drawbar on the second unit, locomotive 3347, was misaligned. The plaintiff had not noticed this during his inspection of the locomotives, and he did not know the reason that the drawbar came out of alignment. Due to the fact that the misaligned drawbar might cause a problem in coupling unit four with unit two, the plaintiff attempted to move the drawbar. The plaintiff placed one foot inside of the rail and the other foot outside of the rail and pushed on the drawbar. It did not move. The plaintiff pushed harder the second time, and it "took off" and moved beyond the center. When the drawbar moved, the plaintiff's body twisted around and he fell, hitting his hand and shoulders on the rail. The plaintiff was able to get up and push the drawbar back to the center. The drawbar was then able to move freely. The plaintiff waited for the hostler to bring unit four back to hook up with unit two. The plaintiff then made the necessary connections between units two and four. There were no witnesses to the accident.

When the plaintiff returned from lunch at approximately 12:20 p.m., he still needed to disconnect unit two from unit one, and connect units one and three together. The plaintiff testified that he could not remember what he did between 12:20 p.m. and 1 p.m. At 1 p.m., the plaintiff filled out an accident report with foreman Gary Stephens and listed 11 a.m. as the time of the accident. The plaintiff also testified that his accident occurred at 11 a.m. At approximately 1:30 p.m., Stephens performed an inspection of the locomotive, including the drawbar that the plaintiff reported had previously stuck. Stephens testified that he did not discover any defects during his inspection; however, if a drawbar can be moved back to center, even if it sticks or is hard to manually push, it is not required that it be reported as defective. In fact, Stephens stated that an actual defect would include a crack in the drawbar, a broken pin, a worn bushing, or anything that might be missing from the equipment. Stephens testified that if he needed to push a drawbar while on E Track, he would "get good footing", attempt to make a positive lift, and move it over. If that did not work, he would get a forklift or some other type of equipment.

Dennis Korando, locomotive foreman, testified that if one is initially unsuccessful in attempting to lift and move a drawbar, he would either need to use a long bar alongside the drawbar and again try to move it, or use a forklift with a chain. Korando also testified that if a drawbar sticks, something is wrong with it.

Floyd Cooper, superintendent of defendant's transportation department, stated that if a drawbar cannot be moved with reasonable force, one should obtain assistance.

The plaintiff testified that he had received a manual of safety rules on July 1, 1986. Plaintiff stated, however, that he did not use unreasonable force when he pushed the drawbar the second time. He also claimed that he did not injure himself by lifting beyond normal capacity or by applying too much force.

After the plaintiff filled out an accident report, Cooper took him to see Dr. Cynthia Byler at the Granite City Industrial Clinic. Dr. Byler stated that the plaintiff told her that he was pushing a drawbar and felt a sharp pain in the left neck area. Plaintiff apparently told Dr. Byler that he did not fall and he was able to continue working, but the pain had radiated into his left shoulder area. Dr. Byler testified that the plaintiff had a full range of motion of the left upper extremity. He had muscle spasm in "both the left paraspinal muscles in the cervical region and also in the left trapezius." The plaintiff's range of motion was restricted for rotation of cervical spine motion on both the left and right sides. Dr. Byler's diagnosis of the plaintiff's condition was a cervical strain. She prescribed a muscle relaxant and an anti-inflammatory agent and recommended that the plaintiff go to physical therapy three times a week for one week. The plaintiff had a 10-pound lifting limit and was to return on July 22, 1988, for a follow-up examination. Dr. Byler stated that depending on the degree of severity of the injury, the general recovery period for a cervical strain is four to eight weeks. Three days later, on July 18, 1988, the plaintiff returned for a follow-up examination. The plaintiff had undergone his first physical therapy treatment that morning and stated that his neck felt better, but his left shoulder was still sore. He also complained that the medication was making him nervous and causing him to experience blurred vision. He also told Dr. Byler about a bulge in the left groin area, and she referred him to Dr. Mayda for that particular problem. Dr. Byler's diagnosis was resolving cervical strain. She recommended that the plaintiff continue light duty and physical therapy, stop the medication, and return for a follow-up examination on July 22, 1988. Dr. Byler's final examination of the plaintiff was on July 22, 1988. Dr. Byler stated that the range was the same as it was on July 18 and improved from the examination on July 15. Plaintiff was experiencing muscle spasm and had tenderness in the left trapezius area with a complaint of pain down to the left mid-deltoid, or the mid-portion of the upper arm. Dr. Byler's treatment plan was that the plaintiff should continue light duty and take Flexeril at bedtime. Plaintiff was given a prescription for Tylenol III to take as needed for pain every four to six hours, and he was to continue physical therapy.

Dr. Mayda diagnosed the plaintiff with a hernia on August 1, 1988, and repaired it. Plaintiff testified that he has experienced no ...


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