Roberts v. Norfolk and Western Ry. Co.

• Decision Date: 04 June 1992
• Docket Number: No. 4-91-0647,4-91-0647
• Parties: , 171 Ill.Dec. 324 Andrew J. ROBERTS III, Plaintiff-Appellee, v. NORFOLK AND WESTERN RAILWAY COMPANY, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1144

593 N.E.2d 1144

229 Ill.App.3d 706, 171 Ill.Dec. 324

Andrew J. ROBERTS III, Plaintiff-Appellee, v. NORFOLK AND WESTERN RAILWAY COMPANY, Defendant-Appellant.

No. 4-91-0647.

Appellate Court of Illinois,

Fourth District.

June 4, 1992.

Karl D. Dexheimer, Belleville, for defendant-appellant.

Glenn E. Bradford, Clarence W. Harrison, II, Morris B. Chapman & Associates Ltd., Granite City, for plaintiff-appellee.

Justice McCULLOUGH delivered the opinion of the court:

Plaintiff Andrew J. Roberts brought suit against his employer, Norfolk and Western Railway Company (N & W), pursuant to the Federal Employers' Liability Act (45 U.S.C. §§ 51 through 60 (1988)) (FELA) for personal injuries sustained during the course of his employment. A jury awarded Roberts approximately $1.4 million in damages. N & W appeals, raising the following six issues: (1) whether the trial court erred in permitting Roberts to present evidence of statements made by another employee of N & W and treat those statements as admissions of N & W; (2) whether the trial court erred in denying discovery of medical records regarding Roberts' psychiatric condition and chemical dependencies; (3) whether the trial court erred when barring the testimony of Dr. Murray Finn and portions of the testimony of Dr. Richard Ashby and Dr. Pedro Ochoa; (4) whether the trial court erred in denying N & W leave to have Roberts examined by a registered occupational therapist; (5) whether the trial court erred in submitting the court's instruction No. 1, regarding mitigation of damages, instead of N & W's tendered instruction regarding mitigation of damages; and (6) whether the amount of the jury verdict was grossly excessive. We reverse and remand for a new trial based on one of the issues raised, but address the issues likely to recur on retrial.

I. FACTS

Roberts began working for N & W in 1974 as a switchman. The duties of the switchman include throwing the switch (a device which allows cars to go onto different tracks), making up and taking apart trains, and classifying cars for different trains. Roberts was working on April 8, 1984, as a switchman on the "12 [p.m.] No. 1 crew." On that same night in that same area of the yards, another crew, known as the "11:15 No. 1 crew," was also working. Roberts' train consisted of only an engine while the 11:15 No. 1 train had approximately 14 cars.

The 11:15 No. 1 train was in a position east of the master switch waiting on the classification track to move onto another track. Roberts' train was also on the classification track, only to the west of the 11:15 No. 1 train. Roberts' train was in the process of leaving the classification track and maneuvering onto the back tracks. To do this, Roberts' train had to pass through the master switch and in front of the 11:15 No. 1 train. Before passing through the master switch, Roberts jumped off his engine and threw the switch in order to align it so that his train went onto the back tracks.

Roberts testified that after his train went through the master switch, he threw the switch to align it for the other crew. Roberts saw the switchman for the 11:15 No. 1 train near the master switch and told him that he had already thrown the switch for that train. Roberts then gave his engineer a signal to back up the train. Roberts testified that after he threw the switch he turned around and walked toward his engine to start to get on it. Roberts stated he had one foot on the engine when all of sudden he turned around and realized the 11:15 No. 1 train was going to run into his train. He then fell off of his engine and heard a pop in his back. Roberts noticed a car on the 11:15 No. 1 train was starting to shake and roll, and he tried to get out of the way because he thought it was going to derail on top of him. Roberts began to run away from the train, and fell down and hit his back on one of the railroad tracks.

Roberts testified the signal he gave to his crew engineer was done through a series of arm movements with a switch lantern and the signal he gave to his engineer that night was a "backup" signal. Roberts indicated he realigned the switch for the 11:15 No. 1 crew as a courtesy and that this was not unusual in this type of industry. Roberts admitted he was familiar with the rules and regulations of the railroad, and knew he was not authorized to give a signal to another crew member nor was another crew member authorized to take a signal from him.

Roberts attempted to return to work after reporting the accident but after four or five hours had to be taken to the hospital. At the hospital, X rays were taken of his back, and he was diagnosed as having a sprained back. Roberts continued to have back pain and finally in September 1984, upon referral from his attorney, Roberts went to see Dr. Pedro Ochoa. Dr. Ochoa admitted Roberts to the hospital and recommended a back specialist, Dr. Richard Ashby. Roberts had his first surgery on his back on September 25, 1984, after which he was hospitalized for a period of one month. Roberts indicated he improved for approximately four months after the surgery but began having severe pain again. He was admitted to the hospital in August 1985 again for muscle tension and back spasms. In 1986, Roberts was given a spinal nerve block for pain. Approximately six months later, he had his second back surgery and was hospitalized for approximately four weeks thereafter. Roberts continued to have physical therapy after the second surgery, and for approximately three months, the pain started to go away.

In 1988, Roberts was again hospitalized for back pain, at which time he received more physical therapy. In September 1989, Roberts was still experiencing back pain and went to see Dr. Ashby, who recommended surgery. On his third surgery, Roberts' lower back was reconstructed. Roberts testified he still is in a lot of pain but it has improved since the last surgery.

Roberts has not worked since the date of his injury. In 1987, he attempted to get his general equivalency diploma but that attempt was unsuccessful. After his third surgery, Roberts obtained a partial release from his doctors indicating he could return to work on a trial basis. However, N & W refused to allow him to work on a trial basis.

Roberts presented testimony of six other witnesses. Dr. Ochoa described the three surgical procedures performed on Roberts and the various diagnosis and treatments he had given Roberts. Mary Jo Hilliard testified she was an occupational therapist and in that capacity performed evaluations on injured employees to determine their functional capability in terms of returning to their jobs. Hilliard performed such an evaluation on Roberts on November 29 and December 3, 1990. She described the tests performed on Roberts and the results thereof.

James England, a rehabilitation counselor, testified he had received a referral from Roberts' attorney to perform an evaluation of Roberts. In September 1989, England performed a series of tests on Roberts and evaluated his employability and educational skills. England concluded that vocational rehabilitation was not appropriate for Roberts because of the combination of problems he was experiencing, including his pain and intellectual background. Gilbert Rutland, a professor of economics, explained to the jury the damages incurred by Roberts in terms of past lost wages and future lost wages. He described how he calculated the various figures for Roberts' lost wages and reduced them to present cash value.

Finally, Roberts presented testimony of two N & W employees. One, Paul E. Gibson, a division superintendent of N & W, testified he had received a letter from the chief medical doctor of N & W, who indicated that Roberts could not return to work for a trial period of time. This letter also indicated that doctor did not believe Roberts could ever return to work as a switchman. L.P. Reed was the hearing officer who presided over the investigative hearing conducted after the accident in April 1984. His testimony will be discussed in further detail below.

The first witness for N & W, Robert Branham, was the engineer on Roberts' train in April 1984. Branham explained that after Roberts threw the switch, and attempted to get back on the engine, he had to slow the train down in order to allow Roberts to jump on the train. Branham testified Roberts gave a fast "backup" signal with his switch lantern, which indicated to him to move in a reverse direction. Branham further testified that when he turned around to see if Roberts had gotten on the engine yet, he could see the other train coming down the track and he knew that they were going to collide.

Thomas Daniels, the switchman for the 11:15 No. 1 crew, testified he was aware that the 12:00 No. 1 crew was working in the same area that evening and that it was his job to throw the switch to make sure that his train went down the proper track. Daniels spoke with Roberts in the area of the master switch and Roberts had told him he (Roberts) would throw the switch for their crew. Daniels said he would get the switch himself because it was his job. Daniels testified Roberts gave an exaggerated "backup" signal, which could be interpreted as a "kick" signal. It was this signal, according to Daniels, that resulted in the engineer for the 11:15 No. 1 train moving his train. After seeing his cars start to move, Daniels gave his engineer a "stop" signal.

Bruce Cobbs, an assistant train master for N & W, testified he spoke with Roberts shortly after the incident in April 1984 and the signal demonstrated that evening by Roberts was a large exaggerated signal. He explained the signal demonstrated by Roberts was a "kick" signal, which is an indication for the engineer of the train to increase the speed of the engine so he can kick the cars down the track.

Douglas Cole testified he was an occupational therapist in St. Louis, Missouri, and had been provided Roberts' records...