Baker v. CSX Transp., Inc.

• Decision Date: 25 October 1991
• Docket Number: No. 5-90-0366,5-90-0366
• Citation: 163 Ill.Dec. 616,221 Ill.App.3d 121,581 N.E.2d 770
• Parties: , 163 Ill.Dec. 616 Jeffrey BAKER, Plaintiff-Appellee, v. CSX TRANSPORTATION, INC., Successor in Interest to Baltimore & Ohio Railroad Company and Chesapeake & Ohio Railroad Company, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 770

581 N.E.2d 770

221 Ill.App.3d 121, 163 Ill.Dec. 616

Jeffrey BAKER, Plaintiff-Appellee, v. CSX TRANSPORTATION, INC., Successor in Interest to Baltimore & Ohio Railroad Company and Chesapeake & Ohio Railroad Company, Defendant-Appellant.

No. 5-90-0366.

Appellate Court of Illinois Fifth District.

Oct. 25, 1991.

Richard F. Nash, Law Offices of William A. Brasher, St. Louis, Mo., for defendant-appellant.

Timothy O. O'Sullivan, Pratt and Callis, P.C., East Alton, for plaintiff-appellee.

Justice WELCH delivered the opinion of the court:

Defendant, CSX Transportation, Inc., successor in interest to Baltimore & Ohio Railroad Company and Chesapeake & Ohio Railroad Company, appeals from both the judgment entered on February 22, 1990, on the jury verdict in favor of plaintiff, Jeffrey Baker, in the amount of $1,000,000 on Count III of his amended complaint and the May 10, 1990, order of the circuit court of St. Clair County denying defendant's post-trial motion to set aside said verdict. Count I of plaintiff's original complaint sought damages for personal injury pursuant to the Federal Employers' Liability Act (45 U.S.C. sec. 51 et seq. (1976)) and was dismissed with prejudice by plaintiff prior to trial. Count II of the original complaint sought damages for injuries caused by defendant's alleged violation of the Safety Appliance Act (45 U.S.C. sec. 1 et seq. (1976)) and was dismissed by plaintiff at the completion of the evidence. Count III of plaintiff's complaint, as amended, sought damages for injuries predicated on defendant's alleged violation of the Locomotive (Boiler) Inspection Act (45 U.S.C. sec. 23 et seq. (1976)) and was the sole cause of action submitted to the jury for deliberation.

Plaintiff alleged in Count III of his amended complaint that on February 5, 1987, while he was employed by defendant as a trainman, a defect in the engine's appurtenances pulling the train upon which he was working caused a malfunction in the dynamic braking system of said engine in violation of the Locomotive Inspection Act (45 U.S.C. sec. 23 et seq. (1976)) and that he was injured in whole or in part as a result of this violation. Defendant denied that the Locomotive Inspection Act was applicable to this case under the circumstances set forth in plaintiff's complaint, denied that the Act was violated, and denied that plaintiff was injured in whole or in part by a violation of the Act. As an affirmative defense to this count of the amended complaint, defendant stated that the sole proximate cause of any injury sustained by plaintiff was plaintiff's own conduct.

Plaintiff had moved for an in limine order prior to trial seeking, inter alia, the preclusion of testimony on the issue of one of defendant's affirmative defenses, whether negligence on plaintiff's part was the sole proximate cause of his injury, barring any recovery. Plaintiff had argued that where injuries are alleged to be caused by violation of either the Safety Appliance Act or the Locomotive Inspection Act, any comparative negligence on the part of the plaintiff is not to be considered by the jury in assessing damages. The court denied this part of plaintiff's pretrial motion in limine, finding that until plaintiff had established in his proof at trial a violation of the Safety Appliance Act or Locomotive Inspection Act and had brought in some evidence that the violation was the cause in whole or in part of plaintiff's injury, defendant would be allowed to proceed on that defense and to raise it, at its own peril, in its opening statement to the jury.

Plaintiff renewed his motion in limine during defendant's cross-examination of the engineer, Thomas Kiser, after objecting to a question concerning a conversation Kiser had with plaintiff following the accident. Defendant's offer of proof indicated that Kiser would testify that plaintiff asked him, "what should I tell them happened," and that Kiser had replied, "just tell them what happened." The court granted the motion in limine with respect to this piece of evidence because it bore only on the issue of plaintiff's credibility and plaintiff had not yet testified. Moreover, the court noted that the probative value of this evidence as to the sole-cause issue was tenuous and was outweighed by its prejudicial effect as to an implication of plaintiff's contributory negligence.

During defendant's cross-examination of the plaintiff, he was asked whether he had told the conductor, Harold Spears, who was the first person who arrived at the scene of the accident, that it was his fault that the accident had happened. Plaintiff objected that the question was in direct violation of the court's previous ruling on his motion in limine, and he moved to strike defendant's affirmative defense that plaintiff's conduct was the sole proximate cause of his injuries. The court found that there had been no evidence presented at this point with regard to any acts of plaintiff independent of the causative chain resulting from the alleged defect, and that the question of the existence of the defect was for the jury to decide. Accordingly, the court granted plaintiff's renewed motion to strike the sole-cause affirmative defense, instructed the jury to disregard the question to which plaintiff had objected, and barred any further cross-examination of plaintiff or examination of any other witness on this issue. Defendant twice moved for a mistrial; once after granting the motion in limine during Kiser's cross-examination and again after the court struck defendant's affirmative defense during plaintiff's cross-examination. Defendant's motions for mistrial were both denied. The court allowed defendant to make an offer of proof with Spears during its case-in-chief. In said offer of proof Spears testified that when he first arrived at the scene of the accident, plaintiff had said to him, "It's my fault."

Defendant argues in this appeal that the circuit court's action in striking its affirmative defense prior to the presentation of its defense was, in effect, the direction of a verdict on the issue of plaintiff's conduct being the sole proximate cause of his injury, and that the court erred in so directing a verdict on this issue. Defendant further argues that the circuit court erred in failing to grant its motion for a mistrial following the court's decision to direct a verdict on the issue of sole proximate cause and in barring any further testimony on that issue. Defendant contends that because of this error it did not receive a fair trial, and defendant seeks the reversal of the February 22, 1990, judgment and a remand to the circuit court of St. Clair County for a new trial on all issues. For reasons stated as follows, we affirm.

The following evidence, pertinent to the issues involved in this appeal, was adduced at trial prior to the order striking defendant's affirmative defense. On February 4, 1987, at about 9:14 p.m., the train on which plaintiff was working for defendant railroad as head brakeman left Louisville, Kentucky, headed north for Cincinnati, Ohio. Thomas Kiser operated the locomotive engine and Harold Spears was the conductor. Plaintiff and Spears rode with Kiser in the locomotive engine. The train was approximately 1 to 1 1/2 miles in length, with a consist of 3 diesel engines, 38 loaded cars, 68 empty cars, and a caboose. The train made a stop at the Obanyon sidetrack to pick up a bulkhead flatcar loaded with lumber, which was to be delivered to the spur near Quality Forest Products off the CSX main line near Walden, Kentucky. The flatcar was connected near the front of the train, behind the third engine. Kiser testified that when they reached the Quality Forest spur the head brakeman was to disconnect the flatcar from the train and switch it onto the spur track at the industry. He stated that it was approximately 3:00 a.m. when they reached Quality Forest Products. There was no artificial lighting at the spur.

The terrain between Louisville and Quality Forest has very many hills and some are quite steep. The Quality Forest spur is located at milepost 88 and engineer Kiser testified that he began slowing down around milepost 86 to make the stop. Kiser described the terrain between milepost 88 and milepost 86 as a "bowl", at the bottom of which the train had to traverse a bridge that crossed Interstate 75. The descending grade starts three-fourths of a mile south of the bridge at milepost 86 and ascends for approximately three-fourths of a mile north of the interstate to reach the stop at the Quality Forest Products spur.

Kiser explained that he had available three different methods of stopping a train: the automatic brake system, the independent brake system, and the dynamic brake system. He testified that the dynamic braking system was, at the time, the preferred and primary braking system because it was more economical in terms of brakeshoe wear and maintenance. Kiser also testified that the Chessie System train-handling manual instructed engineers to use the dynamic brakes in order to properly control slack action on freight trains, and that proper control of slack is essential at all times. Kiser explained that the dynamic braking system works by taking the traction motors and reconnecting them as generators, which causes a retarding force against the forward movement of the train. The eight-position throttle used to control the forward power of the traction motor is also used to control the dynamic brake, with the first position being the weakest to the eighth position being the strongest control of the dynamic brake. Before switching from forward throttle power to dynamic brake, however, the engineer must bring the throttle down to "0" and wait 10 seconds before applying the first position on the dynamic brake.

The second braking system available to the engineer is the independent brake which works only to apply and release the brakes on the locomotives. The third braking mechanism...