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Barton v. Chicago and North Western Transportation Company

September 14, 2001


The opinion of the court was delivered by: Presiding Justice Campbell



Plaintiff Rachel Barton filed suit against defendants Chicago & North Western Transportation Company, n/k/a the Union Pacific Railroad Company (CNW) *fn1 , and the Northeast Illinois Regional Commuter Railroad Corporation (NIRCRC), alleging that she was dragged by a train because defendants did not have a proper procedure to determine whether a passenger was caught in the train's doors before leaving a station. *fn2 Following a jury trial in the circuit court of Cook County, defendants were found liable to plaintiff on the claims brought against each of them. The trial court denied defendants' post-trial motions. Defendants timely filed a Notice of Appeal to this court.

The record on appeal discloses the following facts. NIRCRC is a corporation maintained, supervised and directed by the Commuter Rail Board (CRB), the governing body of the Commuter Rail Division (CRD) of the Regional Transportation Agency (RTA) under the RTA Act. See 70 ILCS 3615/2.20(a)(xii), 3B.01, 3B.02 (West 2000). Defendants' brief states that "[t]he CRD/NIRCRC are known to the public through the service mark 'Metra.'" *fn3

The CRB may provide public transportation by operating facilities or through purchase of service agreements (PSAs) with other transportation agencies. See 70 ILCS 3615/2.01, 2.03 (West 2000). The CRD and CNW entered into a PSA. Article II, Section 2.04 of the PSA states in part that the CRD may, at any time, direct changes in Contract Standards. Article I of the PSA defines "Standards" as "the standards specified in Exhibit 2-C." Exhibit 2-C states in part as follows:


The Contract Services shall be operated or provided by [CNW] in accordance with the applicable standards of safety established by any agency of the Federal Government or the State of Illinois, and any other standards established by the [RTA] pursuant to Section 2.04 of this Agreement. [CNW] shall maintain its existing practices and procedures *** for the safety of its passengers, employees and property used in providing the Contract Services ***."

Article IV, section 4.01 of the PSA states in part that CNW is an independent contractor for the CRD, and shall have managerial control with respect to the Contract Services. The PSA was in effect through December 31, 1998.

Plaintiff Rachel Barton, born in October 1974, began playing the violin when she was three and a half years old. By the time she was 11 years old, Barton was practicing eight hours daily and had joined the Civic Orchestra in Chicago, which trained people to be concert masters in professional orchestras. When Barton was a teenager, she would go dancing on Friday and Saturday nights; she began dating at age 14. Barton engaged in local, national and international violin competitions. Barton paid her living and musical expenses and would travel alone. When Barton's instruction ended at age 17, she spent more time with friends and family. She hoped eventually to get married and have children.

At age 18, Barton had left the Civic Orchestra and was playing with the Grant Park Symphony and the Lyric Opera Orchestra, as well as substituting for ill members of the Chicago Symphony Orchestra. Barton began giving violin lessons at the Music Center of the North Shore in Winnetka (MCNS). Barton's compact disc of Spanish classical music was released at the end of 1994.

On January 16, 1995, at 10:30 a.m., Barton boarded the last car of CNW northbound train No. 317 at the Ravenswood stop in Chicago. She was going to teach at MCNS. Barton was wearing jeans, a T-shirt, possibly a flannel shirt, a bulky sweater with shoulder pads, a puffy down coat with fashion shoulder pads, gym shoes, earmuffs and thin leather gloves.

Barton was carrying a book bag, her purse and a food bag. Barton also was carrying a violin in a "cushy case" that insulated it from the cold. The violin was loaned to Barton by her patron and insured in the amount of $500,000. *fn4 Barton testified that she was carrying these items on her shoulder. According to Barton, these items would not slip down her shoulder, due to the puffiness of her coat. Barton stated that she routinely carried her items in the following order: purse, violin, book bag, food bag.

During the trip, Barton removed her gloves and worked on student reports. Barton testified that she noticed that the Winnetka stop was coming up, based on her knowledge of the prior stops. Barton stated that the train was still moving when she loaded up her belongings, but had stopped by the time she reached the vestibule of the car. Dr. Caroline Clements, who was riding in the same car, heard Barton ask whether the stop was Winnetka. Dr. Clements thought that Barton would not be able to exit the train in time, but stated that the train had not stopped when she entered the vestibule.

Barton testified that her purse, violin case, briefcase and food bag were all on her left shoulder. As she tried to descend the stairs, the violin case became caught on one or two poles in the vestibule. According to Barton, while she tried to keep her belongings at her side, the violin case had "jostled sort of in back of" her. Barton stated that she took a step back, reorganized her belongings, descended the stairs and stepped off the train.

As Barton stepped onto the platform, she could hear "ambient train noise." Barton testified that she did not see or hear the train doors close, but felt and heard a bump. Barton attempted to take another step, but was unable to complete it. Barton thought that her violin case had become caught again. Barton testified that it was as if her left shoulder was pinned to the train. Barton could not turn to the right, so she began to turn to the left. Barton stated that she was bowed backwards because her feet were on the edge of the platform. As she turned her head, Barton could not see her violin case and deduced that it must have been inside the train.

Barton testified that based on her experience riding on CTA trains, she tried to spring open the train doors. Barton stated that it was difficult to get her right hand into the rubber where the doors met, given her body position. Barton could not see a door handle. Barton got a palm on the right door, but her hand slid down the door. Meanwhile, Barton was saying, "Hey, wait. Hey, open up the doors," thinking someone would hear her. Theresa Croghan, who was jogging on the opposite side of the train at the time, heard a very annoyed voice say, "Wait. Wait. Wait a minute. Wait a minute." Barton stated she had no sense of danger at this time, believing that a conductor would put his head out, see her and open the doors. Ten seconds elapsed before the train began to move.

Barton testified that she could not have removed the strap from her shoulder with a flick of the wrist. Barton stated that she would have had several factors working against her, including: her gloved hand, her awkward angle, the weight of her belongings hanging from her left shoulder; and the puffiness of her coat.

Barton testified that the train suddenly began to move northward while she was facing southward. Barton testified that she immediately stumbled and fell as the train pulled and she was pulled to the ground. Croghan testified that as the train started to move, she heard Barton saying, "No. Stop. No. Stop. No," in a very intense voice. Croghan testified that she knew this was not, as she had thought, someone who had missed a train, but that Barton was attached to the train or that there was a violent crime occurring on the platform.

As the jogging path was roughly three feet lower than the train tracks, Croghan began to look under the wheels of the train. Croghan kept hearing Barton say, "Oh, God." Croghan described it as the most bloodcurdling thing she had ever heard. Croghan testified that she then saw a brown coat in a horizontal position between wheels, which then flashed underneath and disappeared. Croghan began running and screaming to nearby people, "Stop the train. She is being dragged. Call 9-1-1."

Barton testified that she was dragged in a half-sitting position, bumping along gravelly ground next to the wheels. Barton screamed at the top of her lungs. Barton thought she was probably going to die and had to choose between continuing to be dragged, or trying to release herself from her straps. Barton stated that she thought either choice was likely to kill her; if she freed herself by pushing the bags off, she could flip herself under the wheels of the train.

Barton testified that she decided to try to free herself. According to Barton, this was difficult, due to her gloved hand and the force pulling on her and her belongings. Barton testified that the violin strap was the third down, so she got her hand under the straps as a bunch, gave a push to get them over the lump of her coat, and flipped away from the train.

Barton found herself in the gravelly area between the train tracks and the platform. Barton continued screaming because she wanted someone to hear her. Barton testified that she did not know so much pain could exist. Barton stated that all she could see "was like blood and [her] left leg was gone." Checking herself, Barton concluded that her internal organs and upper extremities were intact, at which point she thought she might live. Barton felt cold. Barton wanted to lie down and close her eyes, but thought that if she did, she would never awake. Barton decided she had to try to distract herself from thinking about her legs. At this point, people were coming toward her, one of whom was carrying something.

Brian McCarthy, another passenger on train No. 317, testified that he was walking to the vestibule of the train to exit at the next stop when he heard loud, bloodcurdling screams. McCarthy entered the vestibule from the south; a lady entering from the north said something about a young lady and a violin. McCarthy saw a violin at an angle, near the bottom of the steps.

McCarthy pushed a signal button in the vestibule until the train began to slow down. When the train stopped, McCarthy used a pen to trigger the train doors to open, as he had seen conductors do. The violin tumbled out of the car onto the railroad ties. McCarthy looked behind the train, where he saw Barton in the gravelly area between the tracks and the platform.

McCarthy left the train, carrying the violin as he went toward Barton. McCarthy was the first person to reach Barton. McCarthy put the violin on the platform, approximately six to eight feet away. McCarthy could see that one of Barton's legs had been amputated, that the other leg was mutilated, and that blood was spurting out with her every heartbeat. McCarthy removed his belt and began to apply it as a tourniquet on her left leg.

McCarthy testified that Jim Tuck, one of his friends and neighbors, arrived shortly thereafter. Tuck's belt was applied as a tourniquet to Barton's other leg. According to McCarthy, Barton was alert and calm. McCarthy testified that Barton asked him something about the violin; McCarthy told her the violin was "right here." McCarthy also obtained Barton's name and her mother's telephone number. McCarthy and Tuck held onto the tourniquets until paramedics relieved them.

Barton testified that she kept talking while McCarthy was working, telling him her name, trying to remember her telephone number, and asking him to call her mother. Barton asked McCarthy what he was carrying, because she thought it might have been her violin. Barton stated that she kept repeating these sorts of statements, even after she was put into an ambulance, also asking about her purse and asking to have someone call her workplace, because she thought that if she stopped, she would have been "freaking out again." Barton recalled that her leg had been put next to her on the stretcher, like a jigsaw puzzle, or a broken Barbie doll.

Dr. Glen Reinhart, a board-certified orthopedic surgeon, testified that he was called to Evanston Hospital to treat Barton, who was already under anesthesia when he arrived. The lower part of Barton's left leg was attached only by a bridge of skin behind the knee. The front of Barton's right leg was missing most of the skin and soft tissue from mid-thigh to mid-leg. There was a large gap in the bone just below the right knee. The skin over the front half of Barton's right foot was torn away, exposing the bones over her toes.

Dr. Reinhart spent approximately eight hours operating on Barton that day. Barton's left leg below the knee was removed. Some of the removed tissue and bone was placed in the tissue bank for later reconstructive surgery. The toes on Barton's right foot had to be removed. Dr. Reinhart was deeply concerned as to whether Barton's right leg could be saved, in part because he knew that Barton ultimately was going to have an amputation of the left leg above the knee, which would require a bigger prosthesis that would require more energy to use. There was no muscle remaining around Barton's right knee, the lower part of which was smashed into small pieces.

According to Dr. Reinhart, the surgeons could only close the wound on Barton's right thigh, as the skin on her shin was missing. Dr. Reinhart stated that open fractures such as this present a risk of infection. Dr. Reinhardt knew that he was going to have to remove unhealthy or contaminated skin every 24 to 48 hours for the next 10 days.

On January 23, 1995, Barton's left leg was amputated above the knee. Dr. Reinhart testified that this surgery left enough skin to cover the bone. During this surgery, doctors also filled the gap below Barton's right knee with beads made from bone cement containing antibiotic powder. Later in January, Dr. Gerald Harris removed a strip of muscle from the front of Barton's abdomen, transplanted it to her leg, and transplanted skin grafts from Barton's thigh to cover the muscle.

On March 14, 1995, Dr. Reinhart and his colleagues began to try to rebuild the bone in Barton's right leg, using the bone graft harvested during the initial surgery. In May 1995, Barton's leg was placed in an external device, similar to a cage, to support walking; Barton wore this device for 1 ½ years. The medical team had intended to add more bone graft in May 1995, but discovered Barton's bone was infected. Dr. Reinhart was concerned that if the infection was severe, Barton's right leg could have to be amputated. Infection also makes later surgeries, such as a total knee replacement, riskier. On October 23, 1995, Barton had more infected material removed.

The infection reoccurred in January 1996, requiring surgery to remove the infected material. Due to the recurring infection, Barton's leg was left open to heal naturally, aided by the periodic addition of bone chips and bone substitute. The wound required daily care, including the use of cleansing solutions and antibiotics. The wound was open in varying degrees until December 1996.

Dr. David Stulberg, an orthopedic surgeon and a board member of the Rehabilitation Institute of Chicago (RIC), helped found a program for performing artists at RIC in the 1980's. When Dr. Stulberg began seeing Barton in late 1996 or early 1997, Barton had no flexion in her right knee. Dr. Stulberg worked to improve the strength and motion in Barton's right knee through physical therapy and injections of synthetic joint lubricant.

Dr. Stulberg also recommended plastic surgery that could make her knee more pliable and prepare it for probable future procedures. Dr. Gregory Dumanian, a board-certified plastic surgeon, testified that Dr. Stulberg referred Barton to him for procedures (apparently in 1998) to expand the tissue on her right leg. The tissue expansion involved the surgical insertion of a balloon under the skin on Barton's right leg, which was periodically inflated with injections of a saline solution.

Dr. Alice G. Brandfonbrener, the founding director of the program for performing artists at RIC, examined Barton's left wrist when a problem arose as a result of having an intravenous feeding tube inserted there. This problem was resolved. *fn5 Dr. Brandfonbrener also testified that a violinist does not use just her arms and fingers, but also uses her back and leg muscles.

Barton testified that during the period of 1995-98, she had 25 surgeries, 223 medical appointments, 122 prosthetics appointments and 170 physical rehabilitation sessions. Her medical bills totaled $672,570.97.

Dr. Reinhart testified that except for a few steps, Barton would always need the assistance of crutches or a walker to walk. Barton cannot climb or descend stairs. According to Dr. Reinhart, Barton may be able to eat and dress, but for things involving a lot of movement or lifting or carrying, she needs help or to stay in her wheelchair. Dr. Reinhart stated that as Barton matures, she will have less mobility; at some point, she will be in a wheelchair most of the time.

Dr. Stulberg testified that Barton would have to think about stump care issues on a daily basis, as her removable prosthesis depended on her skin for suction and various factors can cause her skin to change or break down. Dr. Brandfonbrener testified that Barton was having problems with skin breakdown. Barton testified that the skin breakdown was painful. Plaintiff's Exhibit No. 176, a photograph of skin breakdown taken the day of Barton's testimony that she described as "one of those embarrassing ones [with] the raw open stuff right in the bikini area," was shown to the jury.

Dr. Stulberg testified that Barton would eventually need a knee replacement, to regain substantial motion and address pain likely to be associated with Barton's progressive arthritis. Dr. Stulberg opined that Barton would probably require further surgery on the stump of her right foot and possibly her right ankle. Dr. Stulberg further testified that Barton would need supervised physical therapy four days a week, along with a daily program, for the rest of her life. Dr. Stulberg testified that Barton will require assisted care in her activities of daily living for the rest of her life. Dr. Stulberg also testified that as Barton gets older, she will need emotional support, ideally professional support. Dr. Stulberg expected that Barton would benefit from future developments in prosthetics and in knee surgery techniques.

Dr. Gary Yarkony, a board-certified specialist in physical medicine and rehabilitation, prepared a future care plan for Barton at counsel's request that included attendant care for various daily activities from a certified nurse's assistant. Dr. Yarkony's plan also included a wheelchair-accessible van and periodic replacement prostheses and wheelchairs. Dr. Yarkony recommended that Barton travel by air in first class. Dr. Yarkony also testified regarding the special performance chair built for Barton by engineers at RIC.

Dr. Reinhart testified that Barton's right leg was forced to stick out from the wheelchair, increasing the risk that other people will run into it and potentially damage it. Barton cannot drive a normal vehicle. Traveling, especially by airplane, is difficult. Barton testified that she can only sit in one seat in coach class on an airplane--the bulkhead with the aisle to her right--to accommodate her right leg. She will board the airplane before most passengers, but this often results in others bumping into her right leg as they board. *fn6

Barton testified that she has to travel with her companion. Barton cannot engage in her normal daily activities at a hotel, because she does not bring her wheelchair when she travels. Barton was not paying her companion and already felt beholden to him for carrying as many of her belongings as he does. *fn7 Barton met her companion in 1995 through her church, initially striking up a friendship, but now living together. Barton stated that it was nice to have someone to hold her when she would experience "phantom pain" in her missing limb. The phantom pain can be anything from the feeling of an electrical shock, to itching, to the feeling that part of the limb is being slowly sliced or pierced by a million needles.

Barton also testified regarding the difficulties and limitations she has regarding any sexual activity with her companion. Barton testified that her injuries, surgical scars, and flab (as she is no longer as physically active as she was) make her resemble "one big Frankenstein's monster." Barton thought that her companion would eventually tire of her difficulties and limitations. Barton testified that even if she could find someone who was willing to be a stay-at-home husband, she did not think she would find someone who would want to take care of all of the domestic activities and care for her also. According to Barton, she is unable to care for herself to the degree that there was no possibility she could care for a child.

Gregory Larson, who was in charge of commuter service for the Union Pacific and formerly for the CNW, testified that in the late 1950's or early 1960's, the CNW adopted a fail-safe door light system. According to Larson, the train doors must close to create a connection that lights a green light signaling the engineer to proceed. Larson testified that one advantage of this system is that it does not depend on visibility; factors such as inclement weather or a curved track will not defeat the door light. Larson noted that a train may have up to 11 cars, each of which is 85 feet long. Another advantage is that if the door light goes out while the train is moving, the engineer can contact the conductors to investigate whether a door has been opened.

If the door light system malfunctions, a backup procedure known as the "second look system" is used. According to Larson, under the "second look system," the conductor charged with closing the train doors closes all of the doors other than those at his or her location. That conductor then steps off or leans out of the train and looks up and down the length of the train. If the conductor does not see any passenger movement, the conductor closes his or her own door and uses a buzzer to signal the engineer to proceed.

Larson also testified that the train doors are edged with two inches of rubber. According to Larson, this creates a four-inch distance that allows passengers who stick a hand, arm, leg, foot or package into closing doors to remove them. Larson further testified that the train at issue had an event recorder that showed the train had stopped in Winnetka for 27 or 29 seconds.

John Deutch, a conductor for the Union Pacific Railroad, worked on the CNW train at issue on January 16, 1995. According to Deutch, the train at issue consisted of a locomotive and four cars, three of which were used for passengers. The front car was being used for mail delivery.

Deutch testified that his job that day was to deliver company mail to the ticket agents up and down the line. Deutch did not look up and down the span of the train when reboarding the train because it was not his job. Deutch stated that the conductors assigned to the passenger cars, ...

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