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Mikus v. Norfolk and Western Railway Company

February 22, 2000

RONALD S. MIKUS, PLAINTIFF-APPELLEE,
v.
NORFOLK AND WESTERN RAILWAY COMPANY, A CORPORATION, DEFENDANT-APPELLANT.



The opinion of the court was delivered by: Presiding Justice O'mara Frossard

Appeal from the Circuit Court of Cook County

Honorable John V. Virgilio, Judge Presiding.

Plaintiff, Ronald Mikus, brought this suit against his employer, defendant Norfolk and Western Railway Company, seeking damages under the Federal Employers' Liability Act (45 U.S.C. §§ 51 through 60 (1988)) (FELA). Plaintiff was injured during his employment as a railroad conductor, when he was struck by a railroad crossing gate arm, which was broken by a truck going through lowering gates at the crossing. Plaintiff claimed this injury was the result of a malfunction in the crossing signals and the negligence of defendant. As a result of this injury plaintiff eventually had two surgeries on his lower back to remove two herniated discs. The jury returned a verdict for plaintiff in the amount of $1,880,000 reduced by 20% for his contributory negligence, for a net amount of $1,504,000.

Defendant contends that the trial court committed the following errors: (1) failed to grant judgment in favor of defendant because a nonparty was the sole proximate cause of plaintiff's injuries; (2) allowed evidence of other broken crossing gates prior to the date of the accident; (3) refused to instruct the jury on the duties of a nonparty truck driver involved in the accident; (4) excluded evidence of defendant's offers of rehabilitation services and alternative employment made to plaintiff and excluded evidence of disability payments defendant made to plaintiff; (5) failed to instruct the jury on plaintiff's duty to mitigate his damages; (6) allowed plaintiff's treating physician to testify about the casual relationship between plaintiff's second surgery and the accident; and (7) instructed the jury on future medical expenses and future lost wages. Defendant also argues that the amount of the verdict was excessive. For the reasons stated below we affirm in part, reverse in part, and remand for a new trial on the issue of damages only.

I. FACTS

A. The Accident

Defendant hired plaintiff in June of 1970. Plaintiff's job responsibilities as a conductor switchman included breaking down and building trains that entered or left the Calumet yard. This work was largely made up of throwing switches, pulling pins, aligning 300-pound drawbars, carrying 70-pound knuckles, connecting air hoses, and operating hand brakes.

The crossing at 130th Street contained two westbound and two eastbound lanes for vehicular traffic, two main line railroad tracks, and one sliding railroad track that led into the Ford plant. The 130th Street crossing warned vehicular traffic with flashing lights and two long-arm crossing gates for traffic in each direction. On November 23, 1992, plaintiff was working a "Ford" job which required him and his crew to move a train from the Calumet yard to the Ford plant. After the caboose cleared 130th Street, plaintiff and another crew member threw switches to start the crossover of the train from the main track to the side track into the Ford plant. The train then, as typical during this "shove" move, reversed itself onto the side track and slowly moved back toward the 130th Street crossing. Plaintiff's job was to "protect the shove move," or warn traffic of the reversing train coming back across the street. Plaintiff placed himself on the north side of 130th Street and was near the crossing gates that stopped westbound traffic on 130th Street.

As the train reversed itself onto the crossover track and back toward 130th Street, the safety gates and warnings of the 130th Street crossing activated. A truck traveling westbound on 130th Street stopped before the crossing. Plaintiff testified that, after going about halfway down, the crossing gates suddenly stopped and moved upward. When the gates reached their upward position, the flashing lights and other warning devices stopped. The train continued toward the crossing at a slow speed. Plaintiff testified that before the train reached the 130th Street crossing, the warning devices again activated but the long-arm crossing gate for westbound traffic appeared to malfunction. The gate went down and back up two or three times. When the gate went up for the second or third time, the truck began to cross the railroad tracks. Before the truck cleared the crossing, the gate again began to lower. The truck, however, continued through the crossing and struck the lowering crossing gate. The entire gate broke off, hit plaintiff in the back and knocked him to the ground.

William England was seated in his truck at the Ford plant. England testified he watched the 130th Street crossing for a period of 20 seconds. England saw a truck approach, strike a gate, and drive through the crossing without slowing or stopping. England also saw the gate hit plaintiff across the chest, causing plaintiff to fall and appear to be unconscious. England did not see the gates malfunction or go back up and down. England's trial testimony, however, was not completely consistent with two previous statements England had made.

Plaintiff testified that many times before November 23, 1992, the crossing gates would go up and back down during the "shove" move or when the train was reversing back toward the Ford plant. He reported the unusual movement of the gates once, three years before the accident, but noticed no change in the functioning of the gates since that time. Sam Sarcinella and Larry Schimmel, switchmen who worked with plaintiff, testified that they also observed, before the accident, the gates travel up and down during the "shove" move. In fact, Sarcinella and Schimmel observed the erratic movement of the gates regularly during the shove move and reported it to defendant. Sarcinella, however, never saw the gates travel halfway down and then back up again.

B. Evidence of Prior Broken Gates

Defendant moved in limine to bar any evidence that, for a period of two years before the accident, vehicular traffic had routinely struck the crossing gates and broken the gates off at the 130th Street railroad crossing. The trial court granted the motion in part because plaintiff lacked any witness that actually saw vehicles strike the crossing gates. The court, however, allowed England to testify that before November 23, 1992, he witnessed vehicles strike the crossing gates two or three times a month.

In defendant's case in chief, L.C. Hopson, who works for defendant as a signal maintainer and is responsible for maintaining the warning devices at the 130th Street crossing, testified that he never saw the gates at that crossing go halfway down, stop, go back up and start back down. Hopson stated that the warning devices passed the inspection tests and worked properly. Hopson further explained that, during a "shove" move, the gates would "time out" and not malfunction. A "time out" occurs when the train initially triggers a motion sensor located 150 feet away from the railroad crossing, thus causing the warning bells and lights to activate and causing the crossing gates to lower gradually. However, because the train either stops or travels less than two miles an hour, the warning devices stop and the gates return to an upward position.

Hopson further testified that a "time out" sequence would not cause the gates to go down half way and then back up again. According to Hopson, a "time out" sequence would also not occur if the train was within 50 feet of the crossing because, in this case, additional sensors or circuits would activate the warning device and cause the gates to remain in a downward position. Hopson did not know of any reports that the gates went half-way down and back up again during a "shove" move. If he had received this type of complaint, he would have investigated it and repaired any problems.

The trial court ruled that during Hopson's testimony, defendant opened the door to questions about prior incidents of broken gates at the 130th Street crossing and plaintiff could question Hopson on this issue. Hopson then testified that before November 1992, he routinely examined broken gates at the 130th Street crossing. Hopson stated that he repaired broken gates at least once a week in the months prior to November 1992 and, in some instances, he repaired gates twice a day. Hopson further testified that because of truck traffic at the 130th Street crossing, it was the worst railroad crossing in his territory involving knocked-down or broken gates. Hopson took no steps to prevent further broken or knocked-down gates. Hopson also testified that the railroad changed the material used for the gate from wood to aluminum and fiberglass. With this type of substance, the gates, when struck, did not shatter and were easily reattached to the crossing. The aluminum or fiberglass gate saved the railroad time and money because the gate usually did not need to be replaced. At that crossing, Hopson repaired broken gates over 100 times in a two-year period in 1991 and 1992.

C. Jury Instructions on Duty of NonParty

After hearing all the evidence on liability, the trial court denied defendant's request to instruct the jury on the statutory duty of a motor vehicle operator at a railroad crossing and refused to instruct the jury that it may consider evidence that the alleged violation of the statute proximately caused plaintiff's injuries. See 625 ILCS 5/11-1201 (West 1996). The trial court further refused to instruct the jury on the duty of a driver approaching a railroad crossing. See Illinois Pattern Jury Instruction, Civil, No. 73.01 (3d ed. 1995). The court, however, instructed the jury that if it found that the conduct of a nonparty was the sole proximate cause of plaintiff's injuries, then it should find in favor of defendant.

D. Plaintiff's Damages

Defendant asserted the affirmative defense of plaintiff's failure to mitigate his damages "by failing to engage in vocational rehabilitation programs and failing to seek or resume gainful employment." Prior to trial, plaintiff filed a motion in limine to bar evidence that defendant offered rehabilitation and occupational therapy to plaintiff. Plaintiff also moved to bar all evidence that plaintiff failed to mitigate his damages and moved to exclude evidence concerning "the availability of alternate employment positions with the Norfolk and Western Railway Company." Plaintiff argued that the evidence was not admissible because, following the accident, there was no specific job available for plaintiff at defendant's company.

The trial court granted the motion in part and excluded offers defendant made to plaintiff to participate in defendant's "Accelerated Rehabilitation Program" and other efforts defendant undertook to assist plaintiff to return to work. The court, however, allowed defendant to cross-examine plaintiff about plaintiff's inability to find employment after the accident. During cross-examination, plaintiff admitted that, since the accident, he had not sought any employment but, on redirect examination, testified that he sent a letter to defendant, requesting a list of available jobs. When defense counsel attempted to question plaintiff about correspondence defendant sent to him, including rehabilitation offers, the trial court sustained plaintiff's objection and instructed the jury as follows:

"Ladies and gentlemen of the jury, disregard any of this correspondence that may have come from the plaintiff or from the railroad to the plaintiff, because after the attorneys get involved that's when we start getting this correspondence and we're getting away from the main issue in the case."

The trial court also refused to submit to the jury defendant's proposed instruction on plaintiff's duty to mitigate damages under FELA because the instruction was not an Illinois Pattern Jury Instruction.

After the accident, plaintiff was diagnosed with low back contusion and contusion of the right upper arm and hospitalized for nine days. Plaintiff complained of pain in his back and down his legs. Plaintiff sought treatment from Dr. Schoedinger, a board-certified orthopedic surgeon. Dr. Schoedinger testified he performed a series of diagnostic tests, including an MRI and myelogram and found a disk rupture at levels L5-S1 of plaintiff's spine and a disk protrusion at level L3-L4 of plaintiff's spine. Dr. Schoedinger performed the surgery, removed the disk at the L5-S1 level, and ordered physical therapy.

Dr. Schoedinger testified that to a reasonable degree of medical certainty the accident on November 23, 1992, caused the disk ruptures and protrusions in plaintiff's spine and related symptoms. Dr. Schoedinger further testified that plaintiff could no longer perform his duties as a conductor switchman, but he believed that plaintiff could perform some type of work. Dr. Schoedinger believed that plaintiff should be examined by a vocational counselor; however, he did not make such a referral. In Dr. Schoedinger's opinion plaintiff's injuries were permanent and plaintiff would continue to have pain in the future.

In 1994, plaintiff moved to North Carolina. Plaintiff continued to have problems with his back and stated that the pain eventually became constant. Plaintiff had difficulty moving and could not dress himself. Plaintiff went to the emergency room and was referred to Dr. Randall Sherman, a board-certified neurosurgeon. Dr. Sherman began to treat plaintiff on March 1, 1996, and diagnosed plaintiff with a disk herniation at the L3-L4 level of his spine. Dr. Sherman then performed surgery at the L3-L4 level of plaintiff's lumbar spine and removed the herniated disk. Although Dr. Sherman believed that the disk herniation was recent, based on his ...


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