Appeal from the United States District Court for the Northern District of Illinois, Eastern Division.
No. 95 C 6780--Elaine E. Bucklo, Judge.
Before POSNER, Chief Judge, and RIPPLE and EVANS, Circuit Judges.
Joyce Robinson, a brakeman for the Burlington Northern Railroad Company ("Burlington" or "the railroad"), was injured while she was directing the switching movement of seventeen railroad cars from one track to another. She brought this action against Burlington under the Federal Employers' Liability Act, 45 U.S.C. secs. 51-60 ("FELA"), alleging that the railroad's negligence caused her injury. Ms. Robinson appeals from the jury's verdict for the railroad and the district court's denial of her motion for a new trial. For the following reasons, we affirm the judgment of the district court.
On a sub-zero January morning in 1994, Ms. Robinson was assigned to a yard switching job in the Cicero departure yard. As the foreperson of the switch crew, she was to oversee the movement of railroad cars from one track to another. Working with engineer Grant Hinton and brakeman Mike Aguirre as her crew, Ms. Robinson boarded the lead car, positioned herself on the ladder and directed the switching movement using a hand-held radio. Her crew, in the engine cab seventeen cars away, was approximately 900 feet from Ms. Robinson and could not see her. The engine was traveling at the normal switching speed of about 4 miles per hour as it shoved the string of rail cars slightly uphill on number 6 track for a quarter mile. The engineer testified that there was no evidence of defects in the equipment or operation of the train that day.
Each train car was coupled to another and to the engine by a connector called a knuckle that attaches to the drawbar of the next railroad car. Because of the design of the couplers, there is movement or "play" between the cars. The jerking movement associated with train starts and stops, caused by the extension and retraction of the couplers and drawbars between the cars, is called "slack" action. *fn1 The amount of slack action varies according to the train's speed, the distance available for the train to stop, the terrain and grade of the track, the type of brakes on the engine and the speed with which the brakes are applied. Engineer Hinton testified that severe slack action could occur, "depending on speed and other variables," if the independent brake is applied too quickly. R.48-3 at 207-08. However, he also testified that the slack action that occurs during a switch, when the train is going only 4 miles an hour, should not be great enough to knock someone off a car. Nevertheless, it is this slack action that Ms. Robinson claims caused her to fall from the ladder of the lead car. We therefore focus on the events leading to Ms. Robinson's fall.
Once the train made the switch onto number 6 track, Ms. Robinson gave the engineer the stop signal; she testified that she had to give a second signal before the train actually stopped. After the train came to a stop, Ms. Robinson testified, she felt a normal slack action and began to dismount from the rail car. At that point, however, she testified that an abnormal, rough slack action occurred. As a result, she lost her balance; when she fell to the ground, her right ankle was injured. Ms. Robinson asserted that normal slack action would not be sufficient to cause someone to lose her grip. According to Ms. Robinson, the cause of the rough slack action was that "[e]ither the equipment wasn't working properly or the engineer stopped the train too fast." R.48-2 at 69.
Engineer Hinton's report of the circumstances at the time of Ms. Robinson's injury differed from hers. He testified that, as he was shoving the cars further up number 6 track, he lost radio communication with Ms. Robinson. Following normal procedures, therefore, Hinton coasted to a stop as he was required to do until he received further instructions. Perhaps seconds or a minute or so after the train came to a stop, he testified, Ms. Robinson told him, "Okay: Shove them my way." R.43-3 at 197. Hinton described what he did next: "And then we shoved just a very few feet, maybe a boxcar length or half a boxcar, and she said, 'That'll do.' And then at that time she called Mr. Aguirre down to finish up [the job]." Id. The engineer was asked to describe his stop; he testified:
The initial stop was made basically by coasting down to a stop, because we had no communication, so I had to bring the movement to a stop. And then when we started up again, the engine only moved very, very small, very short distance, and then we stopped again. So both times would have been with the independent brake. Id. at 197-98. Hinton expressed the opinion that the slack would not have been severe under those circumstances. Id. at 199.
Kenneth Hamlet, a switchman/brakeman and conductor with the railroad, reported that he was in an engine several tracks away from track number 6 on the morning in question. He testified that he heard, on his radio, the communication between Ms. Robinson and her crew. His testimony indicated that, after she had ordered the engineer to move the train 5 car lengths, she stated, "That'll" and then "it's like she got cut off in the middle of sentence or something." R.48-4 at 393. Hamlet testified that he "heard the crew calling her saying, 'Did you say "that will do," Joyce?'" but she did not respond on the radio. *fn2 Id. at 394.
Hamlet also described the view he had of the rail cars on track 6; he stated that he briefly saw Ms. Robinson as the car on which she was riding passed him on that adjacent track. Hamlet testified that Ms. Robinson was positioned on the back of the car rather than on the side ladder. He also testified that he had noticed that, when the train stopped, the stop appeared smooth and nothing indicated that there was a rough slack action. When he did not hear Ms. Robinson's response on the radio, however, Hamlet got off the engine ...