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05/21/96 ROGER FICKEN v. ALTON & SOUTHERN RAILWAY

May 21, 1996

ROGER FICKEN, PLAINTIFF-APPELLEE,
v.
ALTON & SOUTHERN RAILWAY COMPANY, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Madison County. No. 89-L-630. Honorable Nicholas G. Byron, Judge, presiding.

The Honorable Justice Chapman delivered the opinion of the court: Kuehn, J., and Maag, J., concur.

The opinion of the court was delivered by: Chapman

The Honorable Justice CHAPMAN delivered the opinion of the court:

Plaintiff, Roger Ficken, brought this action under the Federal Employers' Liability Act (45 U.S.C.A. ยง 51 (West 1986)) (FELA) to recover damages allegedly caused by defendant Alton & Southern Railway Company's negligence in failing to provide a reasonably safe place to work. The jury returned a verdict for Ficken. We affirm.

Alton & Southern operates a switching railroad. Freight railroads bring their trains to the Alton & Southern yard where the trains are broken up into individual cars. The individual cars are switched to different tracks according to destination and then compiled into new trains. When a train is broken up into individual cars, the cars roll by their own momentum to the proper track. Gaps between cars on a track are created if one car rolls further down the track than the car behind it or when cars hit one another but do not couple. It is necessary to close the gaps between cars so that all the cars that should be on that track can fit. The closing of the gaps between cars to make room for more cars is called trimming.

Ficken worked for Alton & Southern as a switchman. His job was to direct the movement of the train engine, which moved the cars to the appropriate tracks, by giving the engineer hand signals on when and how to move the engine and when to stop. Once it is determined that all the gaps between cars are closed, the switchman directs the engineer to speed up.

On March 8, 1989, an accident occurred while Ficken was working as a switchman on track 62. Ficken had looked down the track to see how many gaps between cars had to be closed. It was important to know the number of gaps so that the men on the engine would know how many jolts to anticipate when the cars were being shoved into contact with other cars. Ficken testified that on March 8, 1989, he saw three gaps in the 15 car lengths he could see. After Ficken felt the third gap close, he directed the engineer to accelerate to a faster speed. The engine traveled about one car length at the faster speed and ran into an unexpected cut of cars. The collision brought the engine to an abrupt stop, and Ficken was swung around and hit his right side against a metal plate on the engine.

Ficken's accident occurred at approximately 11:15 p.m. At 5 a.m., Ficken complained of a sharp pain in his ribs and was taken to the emergency room, where he was given pain medication. About three weeks later, on March 29, 1989, Ficken sought medical attention from chiropractor Dr. Timothy Hackney for lower back pain. Dr. Hackney diagnosed a lumbar sprain injury with a radicular component involving the right hip and thigh area, and he treated Ficken for four visits. Ficken's supervisor suggested that Ficken consult a company doctor. Dr. Cynthia Byler, the company doctor, examined Ficken and referred him to Dr. Sayed Ali, a neurologist. Dr. Ali ordered an MRI and diagnosed acute and chronic low back pain. Dr. Ali treated Ficken with physical therapy and pain medication and kept him off work.

On May 30, 1989, Ficken saw Dr. George R. Schoedinger III, aphysician Ficken was referred to by his attorney. Dr. Schoedinger ordered a myelogram, which showed a ruptured disk at the L4-L5 level. Dr. Schoedinger left the decision on whether to have surgery up to Ficken. On October 10, 1990, Ficken was admitted to the hospital for surgery. On March 1, 1991, Dr. Schoedinger released Ficken to work with no restrictions.

This case was first heard on appeal in Ficken v. Alton & Southern Ry. Co., 255 Ill. App. 3d 1047, 625 N.E.2d 1172, 193 Ill. Dec. 51 (1993) ("Ficken I"). Ficken I remanded the case for a new trial because the cumulative effect of several errors by the trial court denied Ficken a fair trial on the first trial.

At the conclusion of the second trial, judgment was entered on the jury verdict finding for Ficken against Alton & Southern for $483,440. Alton & Southern appeals from the November 18, 1994, judgment, arguing: (1) the court erred in denying Alton & Southern's motion for judgment notwithstanding the verdict, and (2) defendant was denied a fair trial.

Judgment Notwithstanding the Verdict

Alton & Southern first argues that the court erred in not granting its motion for judgment notwithstanding the verdict (judgment n.o.v.). Pedrick v. Peoria & Eastern R.R. Co., 37 Ill. 2d 494, 510, 229 N.E.2d 504, 513-14 (1967), sets out the standard for entering a judgment n.o.v. :

"In our judgment verdicts ought to be directed and judgments n.o.v. entered only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors the movant that no contrary verdict based on that evidence could ever stand."

When reviewing a court's denial of a motion for judgment n.o.v., the reviewing court should apply the same standard that was applied at the trial level, and not reweigh the evidence. Johnson v. National Super Markets, Inc., 257 Ill. App. 3d 1011, 1015, 630 N.E.2d 934, 937, 196 Ill. Dec. 769 (1994). In FELA cases, a jury verdict will be set aside only where there is a complete absence of probative facts to support the conclusion reached. Duffield v. Marra, Inc., 166 Ill. App. 3d 754, 762, 520 N.E.2d 938, 944, 117 Ill. Dec. 587 (1988). The reviewing court is limited to the inquiry of whether the conclusion may be drawn that the negligence of the employer played any part whatsoever in the plaintiff's injury. Harrison v. Chicago & Northwestern Transportation Co., 264 Ill. App. 3d 857, 863, 637 N.E.2d 454, 459, 201 Ill. Dec. 865 (1994). We conclude that the trial court properly denied the motion for judgment n.o.v.

The FELA imposes upon an employer railroad a nondelegable duty to provide its employees with a safe place to work. Duffield, 166Ill. App. 3d at 760, 520 N.E.2d at 942. In order to recover under the FELA, a railroad employee must show that he was injured as a proximate result of an accident which occurred in the course of his employment by the railroad and due to the railroad's negligence. Duffield, 166 Ill. App. 3d at 759-60, 520 N.E.2d at 942. The evidence necessary to establish liability in a FELA case is much less than in an ordinary negligence case. Duffield, 166 Ill. App. 3d at 760, 520 N.E.2d at 942. Under the statute, a plaintiff need only show that defendant's negligence played a part, even the slightest part, in producing plaintiff's injury. Duffield, 166 Ill. App. 3d at 760, 520 N.E.2d at 942.

In this case, the jury was instructed that Alton & Southern was negligent in that it:

"(a) Failed to provide a safe place to work;

(b) Failed to provide safe conditions for work;

(c) Required crews to move cars without first coupling them together, in violation of the company's own rules;

(d) Required crews on the trim job to shove in the blind;

(e) Eliminated the job of "bull ring man" when the company knew or should have known that this absence created an increased hazard to crews and equipment;

(f) Failed to establish clear safe procedures for performing the trimming maneuver;

(g) The engineer operated the locomotive at a speed in excess of four (4) miles per hour."

The jury found that Ficken should be awarded $638,204 in damages not taking into account any fault. The jury found Ficken 24.25% negligent and the total damage award was reduced to $483,440. The evidence presented at trial supports the judgment entered on the verdict in favor of Ficken and against Alton & Southern. The verdict was supported by probative facts, and the court did not err in denying Alton & Southern's motion for judgment n.o.v. Duffield, 166 Ill. App. 3d at 754, 520 N.E.2d at 938.

Use of the Harcros Deposition

Alton & Southern's second argument is that several errors occurred during trial which denied Alton & Southern a fair trial. We will first address Alton & Southern's argument that the court erred in excluding the use of a deposition Ficken gave in another case.

In May of 1992, Ficken gave a deposition in a lawsuit brought by his union against Ficken's former employer (the "Harcros deposition"). Ficken was represented by counsel during the deposition, but not by the counsel who represented him in this case. Alton & Southern wanted to use portions of the Harcros deposition in this case toimpeach Ficken. Alton & Southern argued that the Harcros deposition revealed that a doctor had suggested back surgery to Ficken before the accident that is the basis for this case. After the first trial in this case, Ficken sent Alton & Southern supplemental interrogatories, which requested Alton & Southern to "supplement and bring up to date all of your answers to prior interrogatories filed in this case and directed to you."

Prior interrogatory number three was disputed by the parties:

"State whether you or anyone acting in your behalf has obtained from the Plaintiff, any witness, or from any person, any oral or written statement, account, report, memorandum or testimony concerning the accident involved in this cause of action, including the events leading up to and/or following the accident, and if so:

(a) state the name and last known address of each of said persons;

(b) state when, where and by whom each statement, account, report, memorandum, or testimony was made;

(c) state whether oral or written;

(d) state whether it was signed or witnessed; and if so, by whom was it signed or witnessed? Give the names and addresses of all persons present;

(e) state the name and address of the custodian of each

statement, account, report, memorandum or testimony." (Emphasis added.)

Related to this interrogatory was Ficken's motion in limine number 12, which sought to preclude "any statements or comments that surgery was suggested to ...


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