Laird v. Illinois Cent. Gulf R. Co.

• Decision Date: 04 February 1991
• Docket Number: No. 5-89-0250,5-89-0250
• Citation: 153 Ill.Dec. 94,208 Ill.App.3d 51,566 N.E.2d 944
• Parties: , 153 Ill.Dec. 94 Barry Wayne LAIRD, Plaintiff-Appellee and Cross-Appellant, v. ILLINOIS CENTRAL GULF RAILROAD COMPANY, Defendant-Appellant and Cross-Appellee.
• Court: United States Appellate Court of Illinois

Page 944

566 N.E.2d 944

208 Ill.App.3d 51, 153 Ill.Dec. 94

Barry Wayne LAIRD, Plaintiff-Appellee and Cross-Appellant, v. ILLINOIS CENTRAL GULF RAILROAD COMPANY, Defendant-Appellant and Cross-Appellee.

No. 5-89-0250.

Appellate Court of Illinois Fifth District.

Feb. 4, 1991.

Edward M. Laine, Richard L. Meyer, Oppenheimer, Wolff & Donnelly, St. Paul, Minn., Eugene C. Menges, Hinshaw, Culbertson, Moelmann, Hoban & Fuller, Belleville, for defendant-appellant and cross-appellee.

Richard Shaikewitz, Samuel A. Mormino, Jr., Wiseman, Shaikewitz, McGivern, Wahl, Flavin & Hesi, P.C., Alton, for plaintiff-appellee and cross-appellant.

Justice WELCH delivered the opinion of the court:

Plaintiff, Barry Wayne Laird, brought a two-count complaint, as amended, pursuant to provisions of the Federal Employers' Liability Act (FELA) (45 U.S.C. § 51 et seq. (1976)), against defendant, Illinois Central Gulf Railroad Company, to recover for personal injuries suffered during the course of his employment with the defendant. Following a six-day trial, the jury returned verdicts against the defendant of $36,500 on count I and $670,000 on count II, representing a verdict of $1,340,000 reduced by a 50% comparative negligence finding. The circuit court of Madison County, Illinois, entered judgment on the verdicts by minute record on February 22, 1989. After denial of both plaintiff's and defendant's post-trial motions on April 7, 1989, both parties filed notices of appeal.

Defendant seeks reversal of the judgment in favor of plaintiff on count II on the grounds that the trial court erred in denying defendant's motion for directed verdict as to count II of plaintiff's complaint because plaintiff's failure to obtain an "off work slip" was proved to be the sole cause of his injury. In the alternative defendant prays that the entire judgment on both counts be reversed and the cause remanded to the court below for a new trial. Defendant claims that it is entitled to a new trial because of several evidentiary and instructional errors committed by the court below during the trial and because of the denial of its forum non conveniens motion on July 11, 1986. In addition, defendant claims that the trial court committed reversible error in connection with rulings related to admission and timing of evidence which placed defendant at a disadvantage and resulted in an unfair trial. Defendant further contends that the court erred in refusing to strike a juror for cause and that certain remarks made by the judge to plaintiff's counsel exhibited a bias on the part of the court in plaintiff's favor. Finally, defendant claims that the cumulative effect of the several errors committed by the trial court is basis for reversal of the judgment.

Plaintiff cross-appeals from the finding of contributory negligence on his part with respect to count II of the complaint. In the alternative, plaintiff prays that the judgment be affirmed. We shall give a brief factual background for plaintiff's amended complaint and develop the remaining facts as they relate to each of the issues enumerated above.

Plaintiff began working for defendant railroad in 1970 at the age of 20. After undergoing a physical examination by a railroad physician which included an X-Ray taken of his back, plaintiff was found to be in good physical condition at the time he was accepted for employment. Plaintiff was hired as a trackman, a track maintenance position which requires a certain amount of heavy lifting. After approximately five years' employment, plaintiff achieved seniority within the union which entitled him to bid on foreman jobs for the railroad. Thereafter plaintiff alternated between trackman and foreman positions, according to successful bid. Plaintiff had only two minor injuries while employed by the railroad prior to August 17, 1982.

Count I of plaintiff's complaint involved back injuries which were suffered when plaintiff was operating a backhoe on August 17 and 18, 1982, at a site in Massac County near Metropolis, Illinois. Plaintiff alleged that the brakes on the backhoe were defective, that he received inadequate instruction on its operation, that the type of equipment he was ordered to use to move the ballast and rock to even out the road was unsuitable. Plaintiff testified that he was pushing loose rock and dirt from the side of the tracks into a ditch along the tracks. As he drove the backhoe down the bank he had to push hard with both foot brakes and pull up on the steering wheel in order to keep control of the backhoe. Plaintiff testified at the same time that there was a considerable amount of shaking and jerking while he was seated on the backhoe. Plaintiff had operated the vehicle on two prior occasions without difficulty but both instances involved flat terrain.

Plaintiff complained to his supervisor, J.C. Trout, that he had hurt his back on the second day of the backhoe assignment and filled out an accident report. He reported that he did not know the cause of his injury and did not want to see a doctor at that time. Plaintiff was assigned very light duty on August 19, 1982, because the pain in his back was worsening. On August 20, 1982, after plaintiff complained of severe back pain, Trout drove plaintiff to the emergency room of a Paducah, Kentucky, hospital. Plaintiff was examined there by Dr. Burton Haley, a surgeon whose practice was centered around industrial surgery, specifically with the low back area. Dr. Haley had at one time been on the active staff at the Illinois Central Hospital. After the examination and an X-Ray taken of plaintiff's back, Dr. Haley found rotational scoliosis, and that muscle spasm in the back was the cause of the pain, for which he prescribed a muscle relaxant and analgesic. However Dr. Haley found no indication of any neurological involvement in the back injury and decided to place plaintiff on a seven-day, 35-pound, light-duty work restriction. Defendant honored the light-duty restriction ordered by Dr. Haley. Haley's outpatient records indicate that he advised plaintiff that he could thereafter return to normal activity as tolerated.

Plaintiff returned to normal work that fall but testified that the pain had never entirely left. In December 1982, he decided to take his three-week vacation to let his back heal, and on December 2, 1982, made an appointment with Dr. Carey Campbell, a physician and neurological surgeon who practiced in Paducah, Kentucky. Dr. Carey observed a hereditary curvature of plaintiff's spine and, after range-of-motion testing on plaintiff's back, and strength, reflex and sensory testing on plaintiff's lower extremities, made a preliminary diagnosis that a central disc protrusion was the cause of plaintiff's recurring back problems. Dr. Carey ordered a CAT scan and recommended that plaintiff continue the stretching exercises recommended by Dr. Haley and the use of aspirin for pain. He again saw plaintiff on December 13, 1982, to review the results of the CAT scan which confirmed the earlier bulging disc with no nerve root entrapment diagnosis. Dr. Carey advised plaintiff that he could pursue normal activities as tolerated.

In January 1983, plaintiff was assigned to a gauging gang between Metropolis and Reevesville, Illinois. Gauging involves the measuring of the proper gauge or distance between the railroad tracks and if the track is "out of gauge" requires the removal of the spikes, realignment and re-spiking of the rails. The rail spikes are contained in 200-pound kegs and are lifted by two men. In addition, the gauging gang is required to lift certain equipment off the rails or trucks.

Plaintiff called Dr. Campbell's office on January 6, 1983, and asked the receptionist if he could get a six-week, leave-of-absence medical excuse from the doctor because he could not tolerate the work activity on the gauging gang. The receptionist asked him if he wanted to make an appointment but he declined. She told him that he could not get a medical excuse if he did not come in to see the doctor, but made an appointment for plaintiff in April. Plaintiff also testified that the receptionist told him that Dr. Campbell only gave off-duty slips for his patients who had had back surgery.

Plaintiff informed Roger Davidson, the gauging gang supervisor, that he had a bad back and could not do the lifting the first day on the job and on two other occasions. Davidson told plaintiff that he did not need men to stand around and look and that if he could not do the work he would find someone who could. Plaintiff understood Davidson's responses to mean that if he did not do the work he would be fired. Plaintiff testified that he injured his back lifting the 200-pound kegs of rail spikes and other heavy equipment in January 1983.

In February 1983, plaintiff returned to Dr. Haley complaining of extreme back pain. Dr. Haley believed that plaintiff's back pain was due to a combination of the abnormal curvature of his spine and the added work strain he had recently experienced. After an off-duty excuse was prescribed for a one-week period of time, Dr. Haley re-examined plaintiff and recommended a light-duty, 35-pound weight restriction for plaintiff to return to work. Because the railroad would not accept the weight restriction, plaintiff was taken off work. Haley referred plaintiff to Dr. Campbell for re-evaluation and set up an appointment with Dr. French, an orthopedic surgeon also from the Paducah, Kentucky, area. Plaintiff kept his April 5 1983, appointment with Dr. Campbell who diagnosed degenerative disc disease with central protrusion at the lumbar-5 region, without nerve root entrapment. In June 1983, Dr. Haley referred plaintiff for examination by Dr. John Noonan, a Paducah, Kentucky, neurosurgeon. Dr. Noonan examined plaintiff on June 27, 1983, and diagnosed acute low back strain with some occasional recurrent pain. Because Dr. Campbell, Dr. French and Dr. Noonan all agreed that plaintiff could work...