Gonet v. Chicago and North Western Transp. Co.

• Decision Date: 23 March 1990
• Docket Number: No. 1-89-1748,1-89-1748
• Citation: 195 Ill.App.3d 766,552 N.E.2d 1224,142 Ill.Dec. 483
• Parties: , 142 Ill.Dec. 483 James GONET, Plaintiff-Appellant, v. CHICAGO AND NORTH WESTERN TRANSPORTATION COMPANY, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 1224

552 N.E.2d 1224

195 Ill.App.3d 766, 142 Ill.Dec. 483

James GONET, Plaintiff-Appellant, v. CHICAGO AND NORTH WESTERN TRANSPORTATION COMPANY, Defendant-Appellee.

No. 1-89-1748.

Appellate Court of Illinois First District, Sixth Division.

March 23, 1990.

DeParcq, Hunegs, Stone, Koenig and Reid, P.A., Minneapolis, Minn. (William Kvas, of counsel) and Harold Liebenson, Chicago, for plaintiff-appellant.

Richard A. Haydu, Chicago (James P. Daley and George H. Brant, of counsel), for defendant-appellee.

Presiding Justice LaPORTA delivered the opinion of the court:

Plaintiff brought suit against defendant under the Federal Employers' Liability Act (45 U.S.C. secs. 51-60 (1982)), alleging that due to defendant's negligence plaintiff had suffered severe and irreversible hearing loss. After a bench trial judgment was entered for the defendant, and plaintiff appeals.

On appeal, the plaintiff raises these issues: (1) whether the judgment of the court was contrary to the manifest weight of the evidence at trial, and (2) whether the judgment of the court was based on evidence prohibited under the Federal Employers' Liability Act.

At trial the court heard the testimony of the plaintiff, his wife, and Dr. Byron Eisenstein, M.D., all of whom were called by the plaintiff as his witnesses, and of Dr. Thomas Cook, M.D., called by defendant as its sole witness.

The Federal Employers' Liability Act (F.E.L.A.) provides that every common carrier 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 ... such carrier or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment." (45 U.S.C. sec. 51 (1982).) The statute further provides that the employee's contributory negligence shall not bar his recovery but damages shall be diminished in proportion to the employee's negligence (45 U.S.C. sec. 53 (1982)), and where the injury or death resulted from any negligence, however slight on the part of the railroad in violation of the statute, the employee shall not be held to have assumed the risks of his employment to defeat his claim for damages under this statute. 45 U.S.C. sec. 54 (1982).

Basic to the success of plaintiff's claim is proof of some negligence however slight on the part of defendant railroad and a resulting injury to plaintiff. The evidence must establish not only defendant's negligence but also a causal connection to plaintiff's injury. The judicial appraisal of proofs is narrowly limited to the single inquiry whether with reason the conclusion may be drawn that the negligence of the employer played any part at all in the injury. Rogers v. Missouri R.R. Co. (1957), 352 U.S. 500, 506, 77 S.Ct. 443, 448, 1 L.Ed. 493, 499.

Actionable negligence is the breach of a legal duty through neglect or carelessness which results in injury to another. It is the failure of duty or omission of something which ought to have been done. Black's Law Dictionary, 28 (5th ed.1979).

The complaint in this case alleges defendant was negligent in failing to provide the plaintiff with a safe place to work, in requiring plaintiff to work in an unsafe place where noise levels were unsafe and dangerous, in failing to provide safe and proper tools and equipment to do the work, in failing to provide adequate and proper hearing protection devices, in failing to warn plaintiff of his exposure to unsafe noise levels, in failing to adopt safe customary practices to do the work and in assigning plaintiff to work in a place where he was exposed unnecessarily to excessive and high noise levels without protection.

On appeal, plaintiff frames the question before this court in the following manner: "Did the trial court err in determining that the defendant was not negligent for failing to provide hearing protection, even when it was asked, to an employee it knew had a hearing problem and who worked in an environment which the uncontroverted evidence showed was dangerously noisy?" Plaintiff also argues that aggravation of a pre-existing condition is compensable under the F.E.L.A.

In announcing his decision the trial judge stated he was troubled by the quality of the evidence produced. He stated that in total from all reasonable inferences from the evidence offered he found no proof of negligence attributable to the railroad and stated he could not guess at the negligence suggested on the part of the defendant. He considered the testimony of plaintiff's treating physician and concluded from his testimony that during his lifetime plaintiff was exposed to noise. The judge commented on plaintiff's exposure to noise while in military service but stated there was no evidence to establish to what extent plaintiff's hearing may have been impaired while in service. He stated that he was entitled to consider and make reasonable inferences from the testimony of the plaintiff and his wife who had an interest in the outcome of the trial. The trial judge, in considering the supposition offered by plaintiff that his impairment is due to negligence of the railroad, commented that he was troubled by plaintiff's failure as a union official to complain about the noise level and commented that plaintiff was presently employed by the defendant company against whom this claim was filed. The trial judge found that plaintiff had failed to sustain his burden of proof within the requirements of the law and he entered judgment for the defendant.

The uncontroverted evidence established that plaintiff commenced work for defendant railroad in January 1971 working as an assistant carman assigned to its shop on California Avenue in Chicago, Illinois. His duties required him to work on and repair railroad cars and in doing so he used pneumatic air jacks, air rivets, air grinders, air chisels, air nibblers, welding equipment and other power equipment. Plaintiff testified that the noise level was intense and constant. On cross examination, however, he testified that the noise in the shop was not constant and that since approximately 1979 he has worked in the open yard where the noise level was greatly reduced.

Immediately prior to his employment with the defendant railroad plaintiff had worked for another company where his work required the use of hand tools. His military service was in the Marine Corps from September 1961 until January 1966. While in military service, he fired M-1 rifles and a number of other military weapons and was involved in demolition work. Plaintiff testified he set explosives approximately three times. He also testified that he has hunted since he was sixteen years old, going out two or three times each season, and that he was exposed to loud noises from rifle fire when hunting.

Prior to his employment and as part of its established company practice the defendant railroad required plaintiff to undergo a physical examination which included an audiogram. The examination and hearing test was performed on January 14, 1971.

Following his pre-employment physical examination, plaintiff testified he was not informed of the results of his audiogram, and although the test revealed some high frequency hearing loss, no limitations were placed on his employment. He testified that when he began his employment with the defendant he experienced no difficulty with his hearing. The evidence also established that the plaintiff had worked for the defendant continuously since 1971 doing the same work and at the time of trial was still an employee of defendant.

Plaintiff testified he was given another physical examination and audiogram test in 1977, which was required by his employer when he returned to work after a gall bladder operation. He was permitted to return to his assigned work without restriction.

Plaintiff and his wife both testified that in 1983 they noticed he had trouble with his hearing in a conversational setting. He was examined by Dr. Byron Eisenstein, who was a hearing specialist and who recommended that he see an audiologist. He testified he was examined by such a specialist, Mary Kay Chism, who did not testify at trial. Following this examination plaintiff testified that he was fitted for hearing aids and has used them since 1983. He was also fitted for hearing protection devices which he then used while on the job. The evidence included the audiogram report for testing done on plaintiff on November 24, 1987, after four years of hearing aids use.

Plaintiff's testimony disclosed that he and his co-workers in the shop used heavy machinery and power tools which caused noise so loud that they could not hear one another speak. On direct examination the plaintiff testified he complained of the noise in 1971 and asked for hearing protection but his foreman told him that he had no hearing protection devices to give him. He was told to go back to work. He testified that he again complained about the noise to his foreman in 1980 with the same response. However, on cross-examination plaintiff testified that these complaints were made in 1975 and 1983 respectively and again on redirect he testified that he complained once, it did no good, and that he did not bother to complain after that.

Plaintiff began using hearing protection at work in 1983 wearing ear plugs given him by the audiologist. He testified that the defendant did not provide hearing protection to its employees nor did it encourage its employees to use such protection although they have been required to use helmet and safety goggles since 1979 or 1980. Plaintiff testified that although hearing protection for employees later was made available, he did not remember when. He did not indicate whether he now uses hearing protection devices provided by his employer. He further testified that he is the only employee presently wearing any hearing...