Appeal from the Appellate Court for the Fifth District; heard in that court on appeal from the Circuit Court of Madison County, the Hon. P.J. O'Neill, Judge, presiding.
The Honorable Justice Heiple delivered the opinion of the court: Justice Harrison, dissenting: Chief Justice Bilandic and Justice Freeman join in this dissent.
The opinion of the court was delivered by: Heiple
The Honorable Justice HEIPLE delivered the opinion of the court:
Plaintiff, Charles Wilson, filed a two-count complaint under the Federal Employers' Liability Act (FELA) (45 U.S.C. § 51 et seq. (1988)), alleging that defendant, Missouri Pacific Railroad Company, was negligent and caused the injuries he sustained in two accidents. The first accident occurred in 1989 and was the basis for count I of the complaint. Count II concerned a 1990 accident. The jury returned a verdict in favor of plaintiff on count I and in favor of defendant on count II. Plaintiff appealed the count II jury verdict and a divided appellate court granted plaintiff a new trial. (No. 5-92-0615 (unpublished order under Supreme Court Rule 23).) We allowed defendant's petition for leave to appeal (145 Ill. 2d R. 315) and the sole issue before us is whether the appellate court erred in granting plaintiff a new trial as to count II.
Plaintiff testified at trial that in April of 1990 he was assigned to take a train of empty cars to the Gads Hill Rock Quarry in Missouri. On April 9, the train arrived at Gads Hill and the train crew set the band brakes on the cars. Plaintiff returned on April 10 to pick up the cars after they had been filled. Plaintiff was the conductor of the train that day and as conductor he was responsible for releasing the hand brakes on the cars before the train left Gads Hill.
To release the hand brakes, plaintiff climbed up a ladder to the top of a car while the train was moving at one to two miles an hour. After releasing a hand brake, plaintiff would climb back down a ladder, step to the ground and wait for the next car to approach before repeating the same procedure. The train was still moving as plaintiff stepped off the cars.
At the time of the accident, plaintiff was climbing down a ladder on the east side of the train. Plaintiff stated that this was the first time that he had been on the east side of the train that day. Before stepping off the train, plaintiff looked down to the ground for any boulders he might trip over. Plaintiff saw only ballast rock with water on it, as it had been raining for about 24 hours. He did not see anything which would not normally be present. Plaintiff then put his left foot to the ground without incident. As he put his right foot to the ground and let go of the ladder, he started sinking in mud. Plaintiff sank down to his chest before he reached a boulder and pulled himself out. Plaintiff claimed that he was injured as he tried to extricate himself from the mud hole. Plaintiff testified that he had never before seen anything like the mudhole at Gads Hill and that the mud hole was not distinguishable from the surrounding terrain. There were no other witnesses to the accident.
Defense counsel questioned plaintiff and a co-worker, William Knott, about company safety rules which involve the procedures to be used when an employee gets on and off equipment. The rules require employees "before getting on or off equipment, [to] *** guard against injury by looking out for unsafe footing, obstructions or equipment moving on other tracks" and to "observe ground conditions to assure safe footing." Plaintiff stated that he had knowledge of the rules, had been trained in accordance with the rules, and had followed the rules on the day of the accident. The safety rules were admitted into evidence.
At the close of the trial, plaintiff's counsel moved for a directed verdict as to defendant's liability and as to the issue of contributory negligence. The trial court denied both motions and the trial court instructed the jury on the issue of contributory negligence. The jury was given three verdict forms: verdict form A provided for a finding solely in favor of plaintiff; verdict form B provided for a finding in favor of plaintiff, but allowed for plaintiff's damage award to be offset by plaintiff's contributory negligence; and verdict form C provided for a finding solely in favor of defendant. The jury ultimately returned verdict form C.
Before the appellate court, plaintiff claimed that the trial court erred in not granting his motion for a directed verdict and in instructing the jury on the issue of contributory negligence. A divided appellate court affirmed the trial court's refusal to grant a directed verdict as to defendant's liability, but concluded that the issue of contributory negligence should not have been submitted to the jury. The court found reversible error and granted plaintiff a new trial. In dissent, Justice Lewis stated that the jury was correctly instructed on contributory negligence.
Before this court, defendant argues that the issue of contributory negligence was properly submitted to the jury in light of this court's decision in Uhrhan v. Union Pacific R.R. Co. (1993), 155 Ill. 2d 537, 187 Ill. Dec. 461, 617 N.E.2d 1182. Defendant also contends that it was the jury's responsibility to determine whether the plaintiff was contributorily negligent for failing to take additional precautions to avoid unsafe footing as he stepped down off the train. Finally, defendant asserts that the jury never even reached the issue of contributory negligence, as the jury returned a verdict solely in favor of defendant, and thus plaintiff is not entitled to a new trial.
In FELA actions, the plaintiff's contributory negligence does not act as a complete bar to recovery. (45 U.S.C. § 53 (1988).) Rather, the plaintiff's contributory negligence merely reduces the amount of damages the plaintiff is entitled to recover in apportion to the amount of the plaintiff's contributory negligence. (45 U.S.C. § 53 (1988).) A defendant is entitled to have the jury instructed on contributory negligence if there is any evidence to support the theory. ( Uhrhan, 155 Ill. 2d at 547; see also O'Ryan v. CSX Transportation, Inc. (1993), 255 Ill. App. 3d 214, 193 Ill. Dec. 341, 626 N.E.2d 374, vacated (1994), 155 Ill. 2d 565 (wherein this court via a supervisory order vacated the appellate court judgment which held ...