Merrill v. Chicago & Illinois Midland Ry.

Decision Date15 August 1990
Docket NumberNo. 88-3177.,88-3177.
Citation751 F. Supp. 770
PartiesThomas E. MERRILL, Plaintiff, v. CHICAGO & ILLINOIS MIDLAND RAILWAY, Defendant.
CourtU.S. District Court — Central District of Illinois


Kevin P. Durkin, Robert A. Clifford & Assoc., P.C., Chicago, Ill., for plaintiff.

Charles E. Holt, Hugh J. Graham, III, Graham & Graham, Springfield, Ill., Hugh C. Griffin, David R. Schmidt, Lord Bissell & Brook, Chicago, Ill., for defendant.


RICHARD MILLS, District Judge:

One thing this Court will not suffer lightly is trial by artifice and ambuscade.

We expect litigants and their counsel to abide by both the letter and the spirit of the Federal Rules of Civil Procedure, and to cooperate fully—within the metes and bounds of our adversarial system—in an effort to uncover the truth and attempt to do justice.

Yet during the course of this litigation we were forced to chastise defense trial counsel on several occasions to play by the rules—for instance, the defense waited until the morning one of its damage experts was to testify before it revealed some of that expert's intended testimony. Most egregious, though, was their last minute motion—literally on the eve of trial—to dismiss for want of jurisdiction.

We denied that motion when it was raised because the timing, nature and circumstances of the motion indicated that Defendant was not sincere, but intended the motion only to harass, delay and induce a favorable settlement. We here revisit that motion, though, this time raised as a motion for relief from the jury's $9,000,000 plus verdict against Defendant—a verdict which was well-substantiated by the evidence introduced during trial.

We regretfully must now grant Defendant that relief and allow it to proceed in another forum, for the reasons which we now discuss.


Plaintiff brought this case to our door-step under the auspices of the Federal Employer's Liability Act (FELA) and the Federal Safety Appliance Act (FSA); he was severely injured during an attempt to rerail a derailed train car (among other things, he lost an arm and his spleen in the accident), and these two federal acts seemed clearly applicable. Defendant apparently agreed to the applicability of FELA and FSA, because it never did challenge our jurisdiction with regard to those acts. Instead, Defendant belatedly "discovered" that Plaintiff's avenue of recompense for his injuries derives solely from the Longshoremen and Harbor Workers' Compensation Act (LHWCA), 33 U.S.C. §§ 901-950, to the exclusion of any other remedy, including those which might otherwise fall under FELA or FSA.

The factual context of Plaintiff's injuries is of supreme importance in choosing between the LHWCA on the one hand and the FELA and FSA on the other. The FELA and FSA are negligence statutes which provide a tort remedy for railroad workers injured on the job. The LHWCA, in contrast, covers "maritime employees" engaged in "indisputably longshoring operations," Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249, 273, 97 S.Ct. 2348, 2362, 53 L.Ed.2d 320 (1977), and provides a workers' compensation remedy administered by the Benefits Review Board of the Department of Labor; if liability exists under the LHWCA it is "exclusive and in place of all other liability of the employer to the employee." 33 U.S.C. § 905(a); see also Nogueira v. New York, New Haven & Hartford R.R. Co., 281 U.S. 128, 50 S.Ct. 303, 74 L.Ed. 754 (1930) (the first in a long line of cases affirming the clear language of the "exclusive remedy" provision of the LHWCA).

Merrill was employed by the Defendant Railway and his injuries occurred during the course of that employment, and so FELA and FSA clearly apply. Merrill, however, worked at the Railway's Havana Coal Transfer Plant in Havana, Illinois, right on the Illinois River. The sole raison d'être of that plant is to transfer coal from rail cars onto barges for transportation on the river. The proximity of the Havana plant to the river, and the plant's purpose, raise the specter that some (or even many or all) of the Railway's workers at the plant are engaged in longshoring activities (and particularly the loading and unloading of maritime vessels), and so their injuries are cognizable only in an LHWCA proceeding, and not in an FELA or FSA suit.

The specific issue raised by the Defendant's motion is thus whether the Plaintiff, Tom Merrill, was covered by the LHWCA when he was injured; if so, then no FELA or FSA recovery is possible. The issue itself is straightforward, calling for the application of easily provable facts to a large body of fairly consistent precedent.


The Defendant Railway operates rail lines in Central Illinois, and as part of its system it maintains a coal dumping station in the town of Havana on the Illinois River. This facility, known as the Havana Coal Transfer Plant, serves as intermediary between rail and barge transport of coal. The coal is shipped by rail to the plant; once there, the train is broken apart by the Railway's workers. Individual cars are then taken to the dumper where they are emptied, and the empty cars are then sent to the "empty track" where trains of empty cars are assembled for removal from the dumping facility.

The dumping process itself is fascinating. Once individual full cars are separated out for dumping, they are moved to an inclined portion of the track which leads to the dump house. The full car is then let loose to roll down the track and then into the dump house; the car's speed is controlled by "retarders" which are built into the tracks, and which are operated by a Railway employee who sits in a cab above the tracks. The retarders, when applied, provide a braking action against the car's wheels.

Once inside the dump house the full car is again controlled by retarders. These retarders, operated by the dump house operator, remain locked in until dumping is completed. The dumping process occurs after the car is stopped. The floor of the dump house (called the platen)—tracks and all—is literally tilted over until the coal in the car is dumped out. The platen returns to its original position then, and the retarders are released. The empty car sits there in the dump house until the next full car comes into the dump house for dumping; the full car hits the empty car, which helps stop the full car and sets the empty car rolling once more. The empty car rolls out of the dump house, down a hill, part way up another hill, and then gravity works to reverse its course and send it back down that second hill. At the bottom the empty car is automatically switched onto another track (the "empty track") on which it rolls into a large yard where the empty trains are assembled.

In the dump house, the coal is dumped onto conveyor belts. The dump house itself is over a hundred yards from the river; the conveyor belts transport the dumped coal to the river, where other railway employees load it into barges.

Tom Merrill was lead master mechanic at the Havana Coal Transfer Plant. On the morning of October 10, 1986, he was at work in the mechanics' shop when word came over the intercom that an empty car leaving the dump house had derailed, thus stopping all dumping operations. Presently Richard Fliege, Superintendent of the plant, came along and he and Merrill proceeded to the dump house to survey the damage. Once there, they determined that the derailment was too severe for Merrill and his mechanics crew to rerail, and so a special Chicago & Illinois Midland crew, known as the wrecking crew, was called in to rerail the car.1 Meantime, Fliege ordered that the empty car be pushed with a front end loader until it was half in and half out of the dump house, in order to ease the rerailing process. Once this was done, the retarder within the dump house was applied to the car's rear wheels.

Within an hour or an hour and a half, the wrecking crew had assembled and set to work. They pulled their truck up close to the track on the hill outside the dump house—in fact, the truck was partly obstructing the track (in railroad parlance, this is known as "fouling" the tracks). They then removed several hydraulic jacks from the truck, placed them under the derailed car, and hoisted the car up. Once in the air, the car was moved closer to the tracks, then let down—the crew referred to this as "throwing" the car. They then repeated the process, and the second time they successfully threw the car onto the tracks, rerailing it.

The hydraulic jacks used in throwing the car were operated by a wrecking crew member who worked down the tracks from the car. He worked a box connected by hoses to the jacks, and with this he was able to raise or lower the jacks as he was instructed by the others. For various reasons, including the length of the hoses and the necessity to see both sides of the derailed car, the box was set up in the middle of the tracks about 20 feet downhill from the car, and there the operator knelt and worked the jacks.

The morning was sunny, and the operator was facing into the sun, making it difficult for him to see the jacks. Tom Merrill had been instructed by Fliege to assist the wrecking crew as needed, and to this end Merrill stayed close to the hydraulic jack operator and shielded him from the sun with his body and later with his coat.

When the wrecking crew had first arrived, its foreman saw that the back wheels of the derailed car were stabilized by the dumping house retarders, and so he determined that it was unnecessary to also block the wheels with wooden wedges commonly used for that purpose.2 Moreover, the hand brake on the front of the car was released—the wrecking crew members explained that rerailing was impossible with the hand brake set.

And so rerailing proceeded until, after the second throw, the car was once again on the tracks. During rerailing the dump house operator remained at his post, and at some point he was told by someone to release...

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    ...employees who were injured in the course of their employment caused by the negligence of the employer. Merrill v. Chicago & Illinois Midland Ry. , 751 F. Supp. 770, 772 (C.D. Ill. 1990). FELA, 45 U.S.C. § 51 provides, in part:Every common carrier by railroad while engaging in ... [interstat......
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