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08/25/97 JOHN M. EDWARDS v. ATCHISON

August 25, 1997

JOHN M. EDWARDS, PLAINTIFF-APPELLEE,
v.
THE ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, A COMPANY, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County. Honorable Cyril J. Watson, Judge Presiding.

Released for Publication October 9, 1997.

The Honorable Justice O'brien delivered the opinion of the court. Buckley, J., and Gallagher, J., concur.

The opinion of the court was delivered by: O'brien

The Honorable Justice O'BRIEN delivered the opinion of the court:

Plaintiff, John Edwards, brought an action pursuant to the Federal Employers' Liability Act (45 U.S.C. § 51 et seq. (1994)) against his employer, the Atchison and Santa Fe railway company (defendant), to recover damages for personal injuries he sustained during the course of his employment. A jury returned a verdict in favor of plaintiff and assessed damages in the total amount of $450,000, including $150,000 for future loss of earnings. The jury found plaintiff was 5% contributorily negligent and reduced the award to $427,500. The court amended the judgment to reflect a set-off and an award of costs in favor of plaintiff, and entered a final judgment of $426,918.72.

Defendant appeals, contending the trial court erred by: (1) barring defendant from introducing evidence regarding plaintiff's alternate employment options; (2) admitting hearsay evidence; (3) allowing plaintiff's medical expert to give opinions not based on a reasonable degree of medical certainty; (4) refusing to allow defendant to introduce into evidence allegedly false statements plaintiff made while under oath in a deposition; (5) allowing evidence of a proposed merger between defendant and Burlington Northern; and (6) allowing plaintiff's economist to testify that tier II railroad retirement taxes paid by defendant were a fringe benefit of plaintiff's employment. We reverse and remand for a new hearing on plaintiff's future loss of earnings.

The resolution of this appeal requires only a brief summary of pertinent trial testimony. As we discuss each issue, we will set forth other facts relevant thereto.

Trial testimony established that plaintiff is a trainman/conductor for defendant. On June 1, 1988, plaintiff was working in defendant's Corwith railway yard when he was struck by a pickup truck operated by William Slama, an agent of defendant.

Plaintiff presented evidence that he injured his right knee in the collision with the pickup truck and, as a result, he will eventually require a total knee replacement. Plaintiff also presented evidence that, following the total knee replacement, he will be unable to continue working as a train conductor.

On appeal, defendant argues the trial court erred by refusing to allow it to present evidence that plaintiff has the option of transferring to engineer service. As an engineer, plaintiff would earn at least as much money as he makes as a conductor and undergo less physical stress on his knee, thereby extending his work life. Defendant contends that if the trial court had admitted said evidence, the jury would have awarded plaintiff less than $150,000 for future loss of earnings.

We find no error. In an offer of proof, plaintiff testified he has 25 years seniority in his present position, as a result of which he can pick and choose the jobs he desires to work. A transfer to engineer service would be like starting over, resulting in an immediate 10% loss of his salary for six months and the loss of his elected position with the United Transportation Union, which pays about $5,500. Further, a transfer could result in relocation, the loss of his wife's job, and additional expenses. Under these circumstances, plaintiff is not required to leave his job as conductor and take the engineering position. See Restatement (Second) of Torts § 9l8, Comment j, at 506 (1979) (plaintiff is not obligated to surrender a right of substantial value in order to minimize loss). Accordingly, the trial court did not err by refusing to allow defendant to present evidence regarding plaintiff's option of transferring from conductor to engineer.

Defendant contends the trial court should have allowed it to present evidence regarding plaintiff's option of transferring to engineer service in the future, after plaintiff has a total knee replacement and can no longer work as a conductor. However, during the offer of proof, the witnesses who would have testified at trial about plaintiff's future option of transferring to engineer service stated that it was difficult to predict how well plaintiff would function as an engineer after knee surgery or how much money he could expect to earn as engineer. The trial court correctly excluded such evidence as too speculative. See Poulakis v. Taylor Rental Center, Inc., 209 Ill. App. 3d 378, 383, 154 Ill. Dec. 196, 568 N.E.2d 196 (1991) (opinion testimony based on guess, surmise or conjecture is inadmissible); Jarke v. Jackson Products, Inc., 282 Ill. App. 3d 292, 299-300, 217 Ill. Dec. 861, 668 N.E.2d 46 (1996) (an expert's opinion cannot be based on mere conjecture or guess).

Next, defendant argues the trial court erred by admitting a written report memorializing a conversation between plaintiff and a supervisor, J.C. Poe, in which plaintiff reported he was off work because of fluid on his knees. Defendant contends the report was irrelevant and hearsay.

We disagree. Poe testified the report was a business record prepared as a routine practice of defendant shortly after his conversation with plaintiff, and, thus, the report was admissible under the business records exception to the hearsay rule. See Birch v. Township of Drummer, 139 Ill. App. 3d 397, 406-07, 94 Ill. Dec. 41, 487 N.E.2d 798 (1985). Moreover, the report was relevant because medical testimony established that fluid on the knees occurs when the anterior cruciate ligament tears, and, as defendant concedes, a "crucial and hotly contested factual issue involved whether or not the June 1, ...


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