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Harry Balough v. Northeast Illinois Regional

May 19, 2011

HARRY BALOUGH, PLAINTIFF-APPELLEE,
v.
NORTHEAST ILLINOIS REGIONAL COMMUTER RAILROAD CORPORATION, D/B/A METRA, A CORPORATION,
DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County. 06 L 11029 The Honorable Arnette R. Hubbard, Judge Presiding.

The opinion of the court was delivered by: Justice Pucinski

JUSTICE PUCINSKI delivered the judgment of the court, with opinion. Presiding Justice Lavin and Justic Salone concurred in the judgment and opinion.

OPINION

Plaintiff, Harry Balough, a locomotive engineer for defendant Northeast Illinois Regional Commuter Railroad Corporation, d/b/a Metra (Metra), was injured when the latches on a trapdoor on a Metra train cab car malfunctioned and the trapdoor fell on his head. At the time of his injury, plaintiff was on his way to move the train car to place it into service on Metra's commuter lines. Plaintiff sued Metra under the Federal Employers Liability Act (FELA) (45 U.S.C. §51 et seq. (2000)), for a violation of the Locomotive Inspection Act (LIA) (49 U.S.C. §20701 et seq. (2000)), and for negligence. The trial court ruled as a matter of law that the train was "in use" such that the provisions of the LIA applied. The jury returned a verdict in favor of plaintiff in the amount of $500,000 in compensatory damages and nothing for disability or pain and suffering. The jury also found plaintiff contributorily negligent and reduced the award by 40% to $300,000. However, the jury's answers to special interrogatories indicated it found that Metra violated the LIA. The trial court entered a judgment notwithstanding the verdict for the original $500,000 damages award because it found the special findings were inconsistent with the reduced damages where contributory negligence is not a defense under the LIA. Metra now appeals.

BACKGROUND

Plaintiff began working for Metra in 1974 as a switchman/brakeman. Plaintiff later became a locomotive engineer. As a locomotive engineer, plaintiff worked for Metra's operating division, the transportation department, as head of a crew at the 18th Street yard. The transportation department does not provide repair or maintenance services. Instead, Metra's mechanical department inspects, repairs, and maintains train cab cars at the 18th Street yard.

Plaintiff's duties were to coordinate the dispersal of cars after the morning rush hour and to coordinate the assembly of trains for the evening rush hour. When the morning rush ended, the cars were dispersed at the 18th Street Yard and the mechanical department employees would lock down the tracks and use blue flags as signals so they could safely work on the equipment. The blue flags notified Transportation Department employees that they were not to use the flagged tracks or move to flagged equipment, in order to avoid injury. All of the inspection and maintenance work at the 18th Street yard is performed on the tracks, but the yard's stub track (a short track connected to other tracks only at one end) is not used for repairs because it is too close to the main line tracks. When the Mechanical Department workers finished inspecting, repairing and maintaining locomotives in the 18th Street yard, they would release them to the Transportation Department, and plaintiff and his crew would move them into position for the evening rush. Plaintiff would assemble the cars and then the mechanical department would do an air test on the brakes. Then a crew would be assigned and the train would go out on the main line. Besides moving the locomotive cars within the 18th Street yard, plaintiff occasionally had to transport them on mainline tracks to or from downtown Chicago.

On the afternoon of July 6, 2005, in the 18th Street yard, plaintiff was injured while boarding locomotive 1579. Car 1579 was on the stub track. Plaintiff was assembling cars for use in the evening rush hour, and he was on his way to move car 1579 from the stub track to position it for the evening rush. Though plaintiff could not recall exactly how many cars were assembled, or were going to be assembled, with car 1579, he was generally preparing to move car 1579 into position for use in the main line rush hour traffic. There were no blue flags on either the stub track or on car 1579, and the Mechanical Department was not inspecting, repairing or maintaining it at the time. At the top of the steps up locomotive 1579 was a trapdoor with two latches. Plaintiff had to climb these steps up into the vehicle in order to move the car into position for use in the evening rush. When plaintiff climbed up the stairs on locomotive 1579, the trapdoor was up. There was a vertical bar called a "grab iron" to the right side of the opening, which plaintiff used to pull himself onto the high first step, approximately 1 1/2 feet into the car. Plaintiff reached up and gave the trapdoor a horizontal tug pursuant to the railroad's rules to make sure the latches held firm and the door seemed latched. However, as plaintiff was pulling himself up into the locomotive, the trapdoor fell and hit plaintiff on the right side of his head. Plaintiff went to the hospital and received stitches on his head.

The day after injury, plaintiff saw one of Metra's physicians, Dr. Khanna, who released him to work on July 18, 2005. However, plaintiff began suffering from kaleidoscopic and blurred vision. While plaintiff was watching a film in preparation to return to work, he experienced an ocular migraine headache blurring his vision. When plaintiff attempted to return to work in the 18th Street yard, he suffered an ocular migraine with kaleidoscopic vision. As plaintiff operated a locomotive that day, his vision became blurry and he put it into an emergency brake. Plaintiff concluded he could not safely operate locomotives.

Plaintiff had an MRI performed four days later. Plaintiff was examined by two opthalmologists, Dr. Porakala and Dr. Ticlo. Plaintiff's treating physician at the time, Dr. Ponakala, diagnosed these episodes as ocular migraines. Rule 1.6.3 of Metra's General Code of Operating Rules (Rules), under which plaintiff is covered as a locomotive engineer, required plaintiff to immediately report to Metra if he had knowledge that his hearing or vision has deteriorated and cannot be corrected, so plaintiff reported the problem to Metra. Metra then ordered plaintiff to see one of its physicians, Dr. Echols, who determined that plaintiff was not able to continue working as an engineer and took plaintiff out of work on September 18, 2005, which was plaintiff's last day of work. Metra made a formal determination on September 25, 2005, that plaintiff's medical condition disqualified him from working as a locomotive engineer. Plaintiff subsequently applied for disability benefits from the Railroad Retirement Board, which ruled he was occupationally disabled.

Plaintiff was also treated by Dr. Mayer, a neurologist, who saw plaintiff between August 12, 2005 to January 11, 2007. Dr. Mayer examined plaintiff every few months after that up to the date of trial. Dr. Mayer testified that it was "hard to say" what plaintiff's prognosis was regarding his visual disturbances. Ocular migraine headaches are difficult to treat. Dr. Mayer hoped that they would spontaneously remit over time. However, Dr. Mayer's medical notes revealed no significant improvement for plaintiff.

Plaintiff brought a two-count action against Metra in the circuit court. Count I was for violation of the LIA, pursuant to the FELA. Count II was for negligence under the FELA and alleged that Metra failed to inspect the cab door to discover the defective door latch, failed to warn plaintiff of the defective door latch condition, and failed to properly maintain the door latch.

At trial, Terry Cordray, a licensed vocational rehabilitation counselor, testified as plaintiff's vocational expert. Cordray testified that the job of a locomotive engineer is a safety-sensitive position and that the Federal Railroad Administration has regulations covering physical requirements for engineers, including standards for good vision. Good visual ability is required because an engineer has to: (1) look at train signals regarding train movement; and (2) be observant of the employees that are working on the ground who may give hand signals to indicate their movement to the engineer. Cordray's opinion was that plaintiff could no longer be a locomotive engineer.

Dr. Richard Kraig, a neurologist from the University of Chicago, testified as plaintiff's medical expert. Dr. Kraig reviewed plaintiff's medical records and concluded that plaintiff suffered from migraine headaches and migraine with aura, caused by the head injury on July 6, 2005. Recurrences of plaintiff's visual problems were permanent, though a patient could reduce the occurrences by controlling environmental factors or with medication. Dr. Kraig's opinion was that plaintiff should not drive a locomotive and he would not allow him to drive a locomotive if plaintiff was under his care.

Plaintiff testified that he checked the trapdoor before attempting to alight the cab car. Plaintiff reached gave the trapdoor a horizontal tug pursuant to the railroad's rules and the door seemed latched. However, when he took the first step the latches failed and the trapdoor fell on the right side of his head. Plaintiff introduced evidence of his damages from the date he was determined ineligible to work, September 12, 2005. At the time of trial in July 2009, plaintiff was 59 years old. He became eligible for a full pension from the Railroad Retirement Board upon turning 60 years old on May 21, 2010. Plaintiff's economic expert, Malcolm Cohen, testified that plaintiff's pretrial economic losses in the form of lost wages and benefits totaled $302,308. Adding future economic losses through age 60 if plaintiff retired on May 21, 2010 totaled $509,000. Up to the date of trial, plaintiff was only able to get two jobs: a dog handler, dispersing geese; and at a golf course cleaning carts, working in the shop and handling refreshments. He earned only $84,464 from September 12, 2005.

Regarding disability and pain and suffering, plaintiff testified that he spends most of his days playing with his grandson and performing chores around the house, including yard work and mowing the lawn. Plaintiff also testified he plays golf every other week during the season and was jogging every other day. He admitted he occasionally drives even though he no longer held a driver's license because of his vision problems.

Over Metra's objections, four other trapdoor incidents were admitted into evidence. On November 3, 2001, conductor Nicholas Chou was struck on the head by a trapdoor with only one latch. On September 7, 2001, conductor Paul Buckley was struck on the back by a trapdoor with only one latch. After these incidents, Metra added a second latch to all the trapdoors in 2002. However, on April 7, 2005, conductor Robert Lindsey was struck on the head by a trapdoor with two latches in the 18th Street yard. On April 13, 2005, engineer Donnell Cooper was also hit by a trapdoor with two latches.

Metra presented the testimony of Peter Zwolfer, the superintendent of the Metra electric district, who was in charge of the 18th Street yard on the date of plaintiff's injury. Zwolfer testified that trains in the 18th Street yard are not moving or carrying passengers. One of the last steps before a train is put into use on Metra's main line is a Class 2 brake test, which cannot be done unless all the cars of a train are coupled together. The last tasks performed before a train goes out on the main line is that a crew is assigned to the train after the mechanical department and transportation department finish their work, and the Class 2 brake test is performed.

James Derwinski, the shop superintendent of the 18th Street Yard, testified that the 18th Street yard services Metra's electric lines, including the South, Blue Island, and Main Line. All electric line cars are also locomotives, and Metra performs daily inspections of all its electric line cars as required by the LIA. Derwinski testified that his personnel perform the required daily, annual, tri-annual and other required inspections of all cars, and that car 1579 was inspected every day on a daily basis prior to plaintiff's accident. The trapdoor and its latches were inspected daily to ensure no spring was broken and the latches latched in both the up and down positions. Derwinski also testified that after plaintiff's accident, he inspected the trapdoor and the latches and he found no defects. He also found "no defects" noted on the daily inspection reports on car 1579. Derwinski concluded that the trapdoor had not been properly latched and that plaintiff failed to follow procedures and comply with Metra's rules requiring that the trap door be tested before using it.

During closing arguments, plaintiff's counsel stated to the jury that he would leave it "up to [the jury] to decide how much to give [plaintiff] for pain and suffering for the period of time he has suffered." Regarding disability, counsel stated: "I would suggest that under the disability award, that you give more, much more than what his wage loss is."

Metra moved for judgment as a matter of law on the issue of whether locomotive 1579 was "in use" under the LIA. The trial court ruled that the locomotive was in use when plaintiff was injured. Based on that ruling, the trial court instructed the jury on the LIA by giving plaintiff's instructions 32, 33, 34, and 37. These instructions were discussed during the jury conference, but the actual instructions are not part of the record before us. Also not part of the record are the instructions regarding the alternate jury forms and the alternate verdict forms. Additionally, there is no report of proceedings or bystander report for when the trial court read the instructions to the jury or explained or discussed the verdict forms and special interrogatories before the jury.

Only the completed verdict form and the special interrogatories for verdict form A and verdict form B appear in the record. The jury returned verdict form B, awarding plaintiff $500,000, without considering the question of reduction of damages due to any negligence of plaintiff, but reducing his award by 40% for his contributory negligence, resulting in an award of $300,000. The special interrogatories submitted to the jury did not indicate whether they were for verdict form A or verdict form B. The jury answered "Yes" to the following special interrogatory: "As to Plaintiff Harry Balough's FELA claim, at the time he was injured, did METRA use ordinary care to provide him with a reasonably safe place in which to do his work?" The jury answered "No" to the following special interrogatory: "As to Plaintiff Harry Balough's FELA claim, prior to the accident, did METRA have actual or constructive notice that the trapdoor latch on locomotive car no. 1579 was not reasonably safe?" The jury did not return Verdict Form A. However, as to the special interrogatory, "Did Metra violate the Locomotive Inspection Act?," the jury answered, "Yes." In response to the special interrogatory, "Did Metra's violation of the Locomotive Inspection Act cause or contribute to Plaintiff's injuries?," the jury answered, "Yes."

The court initially entered judgment on the jury's verdict and reduced award of $300,000 in damages to plaintiff. However, plaintiff and Metra both filed posttrial motions for judgment notwithstanding the verdict or a new trial. In its order of October 14, 2009, the court denied Metra's motion and granted plaintiff's motion, in which plaintiff argued that the jury's answers to the LIA special interrogatories were inconsistent with, and superseded, its general verdict on plaintiff's LIA claim, because under the LIA a reduction in damages for contributory negligence is not recognized. Thereafter, the court modified the judgment and increased the amount to $500,000 in favor of plaintiff. Metra thereafter timely appealed the judgment entered on the verdict and damages award.

ANALYSIS

Metra argues that the trial court erred in the following: (1) finding the locomotive was "in use" under the LIA; (2) entering judgment notwithstanding the verdict in favor of plaintiff for the entire amount of $500,000 because the jury's answers to the special interrogatories for the FELA/negligence verdict form were inconsistent with that verdict and the answers to the LIA verdict form special interrogatories were a nullity; (3) entering the $500,000 award for damages where it was logically inconsistent with an award of $0 for pain and suffering and $0 for disability; (4) allowing Dr. Kraig's expert opinion regarding the permanency of plaintiff's injury where Dr. Kraig never personally examined plaintiff and merely reviewed plaintiff's medical records; and (5) admitting evidence of the four prior trapdoor incidents on other cars. We address each argument in turn.

I. Finding of "In Use" Under the Locomotive Inspection Act Metra first argues that the trial court erred in finding the train car was "in use" under the LIA. The LIA provides:

"A railroad carrier may use or allow to be used a locomotive or tender on its railroad line only when the locomotive or tender and its parts and appurtenances --

(1) are in proper condition and safe to operate without unnecessary danger of personal injury;

(2) have been inspected as required under this chapter [49 U.S.C.S. §§ 20701 et seq.] and regulations prescribed by the Secretary of Transportation under this chapter; and

(3) can withstand every test prescribed by the Secretary under this chapter." 49 U.S.C. §20701.

A violation of the LIA does not give rise to a cause of action but, rather, sets a standard or rule, the violation of which gives rise to a cause of action under the FELA, and the failure to comply with that standard is negligence per se under the FELA. Coffey v. Northeast Illinois Regional Commuter R.R. Corp., 479 F.3d 472 (7th Cir. 2007) (citing Urie v. Thompson, 337 U.S. 163, 188-89 n.30 (1949), McGinn v. Burlington Northern R.R. Co., 102 F.3d 295, 298-99 (7th Cir. 1996), and Lisek v. Norfolk & Western Ry. Co., 30 F.3d 823, 825-26 (7th Cir. 1994)). The FELA provides railroad employees a cause of action for injuries while employed by the railroad:

"Every common carrier by railroad while engaging in commerce *** shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce ***." 45 U.S.C. §51.

Generally, a FELA action brought in state court is governed by state procedural law and federal substantive law. Schultz v. Northeast Illinois Regional Commuter R.R. Corp., 201 Ill. 2d 260, 274 (2002) (citing St. Louis Southwestern Ry. Co. v. Dickerson, 470 U.S. 409, 411 (1985), Noakes v. National R.R. Passenger Corp., 312 Ill. App. 3d 965, 967 (2000), and Gibbs v. Lewis & Clark Marine, Inc., 298 Ill. App. 3d 743, 748 (1998)). Thus, we look to federal substantive law.

As Metra points out, the phrase "in use" on the railroad's line is not defined in the LIA. The determination of whether a locomotive was "in use" at the time of the incident is a question of law. Carder v. Indiana Harbor Belt R.R., 205 F. Supp. 2d 981, 984 (N.D. Ind. 2002) (citing McGrath v. Consolidated R. Corp., 136 F.3d 838, 842 (1st Cir. 1998), Crockett v. Long Island R.R., 65 F.3d 274, 277 (2nd Cir. 1995), Pinkham v. Main Central R.R. Company, 874 F.2d 875, 881 (1st Cir. 1989) Steer v. Burlington Northern, Inc., 720 F.2d 975, 977 n.4 (8th Cir. 1983) (citing United States v. Thompson, 252 F.2d 6, 9 (8th Cir. 1958)), and Angell v. Chesapeake & Ohio Ry. Co., 618 F.2d 260, 262 (4th Cir. 1980)).

At the outset, we note that because the "in use" language in the LIA is identical to the language in the Federal Safety Appliance Act (FSAA) (45 U.S.C. §1 et seq. (1988)), recodified in 1994 as the Federal Railroad Safety Authorization Act (FRSAA) (49 U.S.C. §20302 et seq. (2000)), federal courts have interchangeably applied case law interpreting the LIA to the FSAA and FRSAA and the FSAA and FRSAA to the LIA. See Phillips v. CSX Transportation, Inc., 190 F.3d 285, 288 n.2 (4th Cir. 1999) (citing Deans v. CSX Transportation, Inc., 152 F.3d 326, 329 (4th Cir. 1998), and Trinidad v. Southern Pacific Transportation Co., 949 F.2d 187, 189 (5th Cir. 1991)); Steer, 720 F.2d at 977 n.3. Further, the LIA, like the FSAA, "is to be liberally construed in the light of its prime purpose, the protection of employees and others by requiring the use of safe equipment." Lilly v. Grand Trunk R. Co., 317 U.S. 481, 486 (1943). Thus, we may look to federal precedent interpreting "in use" under either act for guidance.

In Brady v. Terminal R.R. Ass'n of St. Louis, 303 U.S. 10 (1938), the Supreme Court held that a car is "in use" under the FSAA so long as it would continue to its next destination if it passed inspection. Brady, 303 U.S. at 13. The railroad employee in Brady was injured while inspecting a car that was one of a string of cars brought by the defendant, Terminal Railroad Association of St. Louis, from St. Louis to Granite City and placed upon a "receiving" or "inbound" track of the receiving railroad company. Brady, 303 U.S. at 11. The car was temporarily on a receiving track for inspection when he fell from the car after a grab iron came loose. Brady, 303 U.S. at 11-12. The purpose of the inspection was to determine whether the cars were to be accepted by the receiving railroad company. Brady, 303 U.S. at 11. The court found that the car was "in use" within the meaning of section 11 of the FSAA when the employee inspected it because it was only stationed on the platform temporarily for inspection and "was still in use, though motionless." Brady, 303 U.S. at 13. The Court reasoned as follows:

"The car had been brought into the yard at Granite City and placed on a receiving track temporarily pending the continuance of transportation. If not found to be defective, it would proceed to destination; if found defective, it would be subject to removal for repairs. It is not a case where a defective car has reached a place ...


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