Bridgeman v. Terminal R.R. Ass'n of St. Louis

• Citation: 552 N.E.2d 1146,195 Ill.App.3d 966
• Decision Date: 16 March 1990
• Docket Number: No. 5-88-0491,5-88-0491
• Court: United States Appellate Court of Illinois
• Parties: , 142 Ill.Dec. 405 Evelyn BRIDGEMAN, Special Administrator of the Estate of Charles Bridgeman, Deceased, Plaintiff-Appellee, v. TERMINAL RAILROAD ASSOCIATION OF ST. LOUIS, Defendant-Appellant.

Page 1146

552 N.E.2d 1146

195 Ill.App.3d 966, 142 Ill.Dec. 405

Evelyn BRIDGEMAN, Special Administrator of the Estate of Charles Bridgeman, Deceased, Plaintiff-Appellee, v. TERMINAL RAILROAD ASSOCIATION OF ST. LOUIS, Defendant-Appellant.

No. 5-88-0491.

Appellate Court of Illinois,

Fifth District.

March 16, 1990.

Gundlach, Lee, Eggmann, Boyle & Roessler, Belleville (Richard M. Roessler and Thomas R. Peters, Belleville, of counsel), for defendant-appellant.

Brennan, Cates & Constance, A Professional Corp., Rosemary D. McGuire, Belleville, for Evelyn Bridgeman.

Justice RARICK delivered the opinion of the court:

Defendant, Terminal Railroad Association of St. Louis (TRRA), appeals from the judgment entered in favor of plaintiff, Evelyn Bridgeman, as Special Administrator of the Estate of Charles Bridgeman, deceased, after a jury trial in the circuit court of Madison County, awarding her $300,000 in damages under the Federal Employers' Liability Act in connection with the death of her husband. We affirm.

According to the evidence presented at trial, on June 2, 1979, Charles Bridgeman, a switchman for TRRA, reported to work for the 8 a.m. shift. He informed the foreman of his crew, Francis Kelley, he was not feeling well. Kelley asked Bridgeman if he wished to go home to which Bridgeman replied, "No." Kelley instructed Bridgeman to ride the engine. At approximately noon, the crew arrived at TRRA's yard at Omaha and 16th Street in Granite City and stopped for clearance. Kelley walked into a nearby shanty to call the yardmaster. Bridgeman followed him into the shanty and sat down on a bench. Another switchman, Ponce DeLeon Williams, also entered the shanty to use the latrine. When he came out of the latrine, Bridgeman was lying down on the bench. Kelley subsequently tapped Bridgeman on the leg and told him they were about to leave. Bridgeman stated he did not feel well. Kelley left Bridgeman lying on the bench and went back to the engine. Williams returned to the shanty a few minutes later. At this point, Bridgeman was in the latrine. Williams left and returned again a short time later, but Bridgeman was still in the bathroom. While waiting on the bench to use the latrine, Williams heard Bridgeman coughing and clearing his throat. Bridgeman then called out to get the foreman. Williams left to inform Kelley that Bridgeman was asking for him. Kelley returned to the shanty and called out to Bridgeman. Bridgeman did not respond. Kelley then left to get his engineer. The two returned to the shanty and again called out to Bridgeman. When Bridgeman still did not answer, they opened the bathroom door. They found Bridgeman slumped against the wall. He appeared not to be breathing and was pale, cold and wet. They checked for a pulse and found none. At approximately 12:15, Kelley called the yardmaster stating that Bridgeman needed an ambulance. Kelley overheard the yardmaster pick up another line and speak to an unidentified person requesting an ambulance. Because no ambulance responded, Kelley called the yardmaster an additional three or four times requesting help. The ambulance arrived some 45 minutes later. The ambulance report reflected the call for assistance was not received until 1 p.m. The evidence at trial also revealed the closest ambulance unit was approximately eight blocks away from the yard at 16th and Omaha, and St. Elizabeth's Trauma Center was approximately one minute away. The engineer, contrary to the other crew members, testified the ambulance arrived shortly after being called. Bridgeman was pronounced dead at the scene at approximately 1:25. Death was caused by acute myocardial infarction. The autopsy revealed Bridgeman had severe obstructive coronary artery disease and was alive for a minimum of 30 minutes from the onset of the attack until death.

TRRA raises seven issues on appeal, namely: (1) whether plaintiff failed to plead and prove a duty recognized by the Federal Employers' Liability Act (FELA) (45 U.S.C. § 51 et seq.), failed to prove TRRA was negligent and failed to prove that any negligence on the part of TRRA caused plaintiff's damages; (2) whether the trial court erred in allowing plaintiff to file during trial a second amended complaint alleging new theories of liability; (3) whether the trial court erred in precluding witnesses who discovered Bridgeman from testifying as to whether he was dead when found; (4) whether the court incorrectly instructed the jury on the issues; (5) whether the trial court incorrectly instructed the jury on the method for determining pecuniary losses; (6) whether the court erred in giving over TRRA's objection plaintiff's instruction defining "proximate cause;" and (7) whether the verdict is excessive and unwarranted by the evidence. We address these issues in the order stated.

TRRA's first argument in condensed form is that plaintiff failed to allege and prove a submissible case. TRRA contends no duty exists under the FELA to render medical aid and, more importantly, plaintiff failed to demonstrate with reasonable certainty that TRRA's acts caused the injury because Bridgeman was already dead when discovered. Negligence, according to TRRA, is not established simply by proving an employee died at work.

Under the Federal Employers' Liability Act,

"[e]very common carrier by railroad * * * shall be liable in damages to any person suffering injury while he is employed by such carrier * * * for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier * * *." (45 U.S.C. § 51.)

In plain language, the statute imposes liability on the railroad for death resulting in whole or in part from the negligence of any of its officers, agents or employees. (See Randall v. Reading Co. (M.D.Penn.1972), 344 F.Supp. 879, 881-82.) Using liberal construction to fulfill the purposes of the Act, courts have permitted recovery in instances when railroad employees suffer fatal heart attacks during their tours of duty or have been stricken with sudden illness on the job, rendering them helpless to secure aid on their own, and die because of the railroad's failure to exercise due care in furnishing emergency medical assistance after it learned or should have learned of their plight. (Randall, 344 F.Supp. at 882. See also Lancaster v. Norfolk & Western Ry. (7th Cir.1985), 773 F.2d 807, 819; Annot., 64 A.L.R.2d 1108 (1959).) Clearly, TRRA had a duty to help Bridgeman once it was aware of the need. Kelley recognized the emergency situation at 12:15 and called for help. There was evidence from some of the crew members, however, that help was not summoned for some 45 minutes. Both medical experts who testified at trial stated that the sooner a patient suffering a myocardial infarction received life-sustaining treatment, the better the chances were for survival and that not receiving any aid for such a lengthy period of time doomed Bridgeman with medical certainty. Clearly, plaintiff stated and proved sufficient allegations and evidence to make a submissible case as to the duty to act and the negligence of the railroad. It is true there was conflicting evidence as to what time Bridgeman became ill and what time the ambulance was called. Such discrepancies, however, are for the jury to resolve. (See, e.g., Clay v. Brodsky (1986), 148 Ill.App.3d 63, 71, 101 Ill.Dec. 701, 707, 499 N.E.2d 68, 74.) The jury heard testimony pertaining to Bridgeman's condition when discovered by his fellow crew members. The jury also heard testimony from the medical experts explaining how Bridgeman was alive for at least 30 minutes to an hour from the beginning of his heart attack to death and how individuals with no ascertainable pulse can be saved by prompt medical attention. We cannot say mere conjecture or speculation forms the basis of the judgment here. (See Walling v. Lingelbach (1975), 33 Ill.App.3d 949, 952, 338 N.E.2d 917, 919, aff'd (1976), 65 Ill.2d 244, 2 Ill.Dec. 363, 357 N.E.2d 530. See also Potter v. Edgar (1975), 34 Ill.App.3d 33, 36, 339 N.E.2d 321, 324.) There simply is no evidence on the record before us so overwhelming against the jury's verdict as to require reversal in this instance. See Randall, 344 F.Supp. 879. See also Clay, 148 Ill.App.3d at 70, 71, 101 Ill.Dec. at 706, 707, 499 N.E.2d at 73, 74; Murphy v. Chestnut Mountain Lodge, Inc. (1984), 124 Ill.App.3d 508, 512, 79 Ill.Dec. 914, 917-18, 464 N.E.2d 818, 821-22.

TRRA argues, however, in connection with this issue, that plaintiff's medical expert, in response to an improper hypothetical question, testified the "hypothetical man" could have been saved if he had received prompt medical attention. TRRA asserts the hypothetical question failed to reveal nearly every critical fact concerning Bridgeman's condition when found and that all relevant material undisputed facts must be included in a hypothetical for the answer to go beyond mere speculation. (See Ryan v. Blakey (1979), 71 Ill.App.3d 339, 350, 27 Ill.Dec. 540, 548, 389 N.E.2d 604, 612; Pritchett v. Steinker Trucking Co. (1969), 108 Ill.App.2d 371, 376-77, 247 N.E.2d 923, 926.) TRRA did make an objection at trial to plaintiff's hypothetical on the grounds the question called for speculation. But, TRRA did not specifically mention the lack of alleged critical facts thereby precluding any chance for correction or supplementation. More importantly, however, a hypothetical question is not improper merely because it includes only a part of the facts in evidence. (See Graham v. St. Luke's Hospital (1964), 46 Ill.App.2d 147, 155, 196 N.E.2d 355, 359.) Any additional or contrary information could have been explored on cross-examination simply by varying the original hypothesis. Finally, even if the hypothetical question were deemed improper, it would not mandate reversal in this instance. The jury was more than adequately made aware of Bridgeman's condition when found in addition to being advised of...