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Abernathy v. Eastern Illinois Railroad Co.

United States District Court, C.D. Illinois, Springfield Division

April 12, 2018




         Commencing on January 16, 2018, this Court held a three-day jury trial on Plaintiff Marvin Abernathy's claim against Defendant Eastern Illinois Railroad Company under the Federal Employers' Liability Act (FELA). At the close of Plaintiff's case, Defendant moved for a directed verdict, which the Court denied. On January 18, 2018, the jury returned a verdict finding both Defendant and Plaintiff negligent and that their respective negligence caused or contributed to Plaintiff's injuries. The jury found Plaintiff's damages totaled $750, 000 and that Plaintiff's negligence caused 30% of the damages and Defendant's negligence caused 70% of the damages, for a net verdict of $525, 000. The Judgment was filed on January 22, 2018 (d/e 56).

         On February 15, 2018, Defendant filed a Motion for Judgment as a Matter of Law Pursuant to Fed. R. Civ. Proc. 50(b) or, Alternatively, Motion for New Trial Pursuant to Fed. R. Civ. Proc. 50(b) and 59 (d/e 57). On April 10, 2018, the Court stayed enforcement of the judgment. For the reasons that follow, the Motion is DENIED.


         The parties are familiar with the facts of the case. To summarize the facts, Plaintiff worked as a track inspector for Defendant for approximately 16 years. On September 13, 2012, Plaintiff and another employee transported railroad ties over a public roadway using a backhoe. While transporting the railroad ties, the load shifted, and one or more ties spilled from the backhoe onto Illinois Route 130. Plaintiff and his co-worker manually lifted the ties off the roadway and placed them back on the backhoe. Plaintiff claims he injured his back while manually lifting one of the ties.

         Plaintiff testified that he preferred to use a piece of equipment called a tie handler, also called a tie crane, to transport ties. A tie handler runs on the railroad tracks, has a boom that can grab ties, and has a cart to hold the ties. With a tie handler, a worker can move ties all over the railroad without having to drive on public roads. Plaintiff had previously operated the backhoe to transport ties within the yard. Plaintiff testified, however, that he had never before operated a backhoe down the road with a load like he had on September 13, 2012. In the past, he had used the tie handler or the transportation of the ties was outsourced.

         Defendant's tie handler was not operational on September 13, 2012, having stopped working approximately four years earlier. The parties presented conflicting evidence on the extent to which Defendant's employees used the tie handler before it became inoperable. Plaintiff testified he used the tie handler weekly when it was operational. Plaintiff also testified that he repeatedly asked Defendant's general manager, Tim Allen, to repair or replace the tie handler, but Defendant refused. Plaintiff told Allen how unsafe their work was going to be without the tie handler, that it was a safety issue, and that the tie handler needed to be fixed.

         Allen testified that it was not his call to repair or replace the tie handler but that he did not want to do so because he thought Plaintiff would abuse the tie handler and run it into the ground. Everett Fletcher, Defendant's president, testified the tie handler was not repaired or replaced because it was seldom used and because of the cost. Allen testified that Defendant hired out big projects and used adequate equipment for smaller jobs. According to Defendant's witnesses, the backhoe or a pickup truck constituted adequate equipment for transporting ties.

         Plaintiff reported the September 13, 2012 accident to Defendant and continued to work. Plaintiff testified that Allen instructed the other employees to help Plaintiff do his job because Plaintiff hurt his back. In addition, work slowed down over the winter months and Plaintiff generally performed more minor work in the winter.

         Approximately 14 months after the accident, Plaintiff saw a doctor about his back pain for the first time. In February 2016, Plaintiff underwent surgical treatment whereby the surgeon removed the disc at two levels, replaced the discs with a cage, and put in screws that connected with rods in Plaintiff's back.

         In February 2014, Defendant fired Plaintiff. After Plaintiff was fired, Defendant purchased a new tie handler for the stated reason that the Environmental Protection Agency made it mandatory for Defendant to clean up the right-of-way.

         Plaintiff testified that if he had not been hurt, he would have retired at age 68 (he was 45 years old at trial). When he worked for Defendant, Plaintiff earned $16.70 and generally worked 40 hours per week. He also received paid vacation and benefits. Plaintiff testified the injury changed every aspect of his life. He cannot sit for a long period of time, play ball with his children, or take vacations.

         Plaintiff's surgeon, Dr. Thomas Lee, testified that, while Plaintiff's prognosis was good for some additional improvement, he did not anticipate that Plaintiff would return to the same level of functioning he was at in September 2012. According to Dr. Lee, Plaintiff could not return to employment at the same level he was working before, which was heavy manual labor. Dr. Lee testified that he believed, to a reasonable degree of medical certainty, that the conditions for which he provided treatment to Plaintiff were caused by or contributed to be caused by the occurrence at work on September 13, 2012.


         Defendant argues that the Court should enter judgment as a matter of law because the jury did not have legally ...

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