LeMaster v. Chicago R. I. & P. R. Co.

• Decision Date: 10 February 1976
• Docket Number: No. 56463,56463
• Citation: 35 Ill.App.3d 1001,343 N.E.2d 65
• Court: United States Appellate Court of Illinois
• Parties: Hobert R. LeMASTER, Plaintiff-Appellee, v. CHICAGO ROCK ISLAND & PACIFIC RAILROAD COMPANY, a corporation, Defendant-Appellant.

Page 65

343 N.E.2d 65

35 Ill.App.3d 1001

Hobert R. LeMASTER, Plaintiff-Appellee, v. CHICAGO ROCK ISLAND & PACIFIC RAILROAD COMPANY, a corporation, Defendant-Appellant.

No. 56463.

Appellate Court of Illinois, First District, Third Division.

Feb. 10, 1976.

[35 Ill.App.3d 1004] Alvin E. Domash, Richard E. Mueller, and Hugh C. Griffin, Lord, Bissell & Brook, Chicago, for defendant-appellant.

[35 Ill.App.3d 1005] John C. Mullen, Chicago, Lee Leibik, Chicago, for plaintiff-appellee.

ON REHEARING

McGLOON, Presiding Justice:

Plaintiff, Hobert LeMaster, brought an action under the provisions of the Federal Employers' Liability Act (45 U.S.C., sec. 51, Et seq.) against his employer, the Chicago Rock Island & Pacific Railroad Company, for personal injuries he sustained in the course of his employment. After hearing the evidence in the case, a jury returned a verdict of $1,000,000 for plaintiff, and the circuit court entered judgment thereon. The trial court denied the defendant's post-trial motion, and this appeal follows.

On appeal, the defendant alleges the following errors: (1) The plaintiff's attorney engaged in prejudicial misconduct by improperly cross-examining defendant's claim agent, and by commenting improperly during closing argument; (2) The trial court erred in admitting prejudicial evidence of plaintiff's family circumstances; (3) The trial court erred in improperly restricting the cross-examination and impeachment of plaintiff's treating physician, and in excluding the doctor's entries in the hospital record from evidence; (4) The trial court erred in admitting three irrelevant contract provisions into evidence, and giving misleading instructions which prejudiced the jury; (5) The trial court improperly refused to allow the defendant to establish its defense by a full cross-examination of plaintiff and plaintiff's expert witness; (6) The plaintiff's use of evidence of his injuries constituted error; (7) The trial court erred in not following the Illinois Allendorf rule concerning the method of reducing future earnings to their present cash value; (8) The verdict of $1,000,000 was excessive; and (9) The cumulative effect of the trial court's errors and the prejudicial misconduct by plaintiff's attorney deprived the defendant of a fair trial.

We affirm.

The testimony at trial disclosed that in the early morning hours of June 12, 1969, the plaintiff was working as a switch foreman for the defendant Railroad in Davenport, Iowa. At that time, the plaintiff was supervising the movement of seven empty boxcars into a Ralston-Purina Company grain warehouse. As the boxcars approached the warehouse, plaintiff boarded the lead car and started climbing its ladder so he would be in position to properly set the car's handbrake. Plaintiff testified that while on the ladder he felt a sudden jolt which threw him to the tracks below, where he was run over by the lead wheels of the second boxcar, resulting in the amputation of his left leg six inches below the groin, his left hand above the wrist, and portions of three toes from his right foot. He also sustained a broken collarbone and rib.

In his complaint filed pursuant to the provisions of the FELA, plaintiff alleged that the Railroad negligently failed to provide him with a reasonably safe place to work. At trial, the plaintiff introduced evidence to prove that the train yard he had worked in the night of the accident was slippery as a result of a combination of spilled grain, water from a recent rainfall and an oil base weed killer sprayed on the tracks earlier in the day which formed a slippery 'jello-like' mush that was stuck to plaintiff's boots and gloves. Other evidence showed that the jolt plaintiff described in his testimony may have been caused by a minor derailment of the lead boxcar. Plaintiff's theory was that the derailment jolt combined with the slippery mush on his boots and gloves caused him to lose his hold on the train's ladder and fall to the tracks.

The Railroad's theory was that the plaintiff's fall was caused entirely by his own negligence, including the violation of certain railroad safety rules which specify the proper way to supervise a movement of boxcars.

At trial, the plaintiff proved actual damages amounting to over $180,000. After hearing all the evidence, the jury returned a verdict for plaintiff in the amount of $1,000,000.

The first allegation of error we consider concerns the plaintiff's cross-examination of Charles E. Hill, the defendant Railroad's employee who signed the defendant's answers to plaintiff's interrogatories. The defendant claims that Hill was improperly cross-examined and the subject of the cross-examination was raised improperly in plaintiff's closing argument so that the plaintiff was able to create the unfair impression that the Railroad had deliberately concealed evidence from the plaintiff during discovery, thus inflaming the emotions of the jurors against the defendant and depriving the defendant of a fair trial.

To understand the facts leading up to the cross-examination, we must describe the discovery process of the case. After the reciprocal Monier order was entered, plaintiff directed written interrogatories to defendant under the provisions of Illinois Supreme Court Rule 213. Four months later, on October 14, 1970, defendant filed its first answers to the interrogatories. We are concerned with interrogatories numbers 3, 4 and 21. Plaintiff's interrogatory No. 3 asked:

'State the names and last known addresses, as known to the defendant's agents, employees or attorneys, of all persons who were occurrence witnesses to the incident mentioned in the Complaint when Hobert LeMaster was injured on June 12, 1969.'

Defendant answered: 'Unknown--investigation continues.' Plaintiff's interrogatory No. 4 asked:

'State the full names and address of each person not named (in 3) above who was present or claims to have been present at the scene immediately before, at the time of or immediately after said occurrence.'

In answer, defendant listed the name of the engineer who moved the cut of train cars which struck the plaintiff, and the names of three men who were in plaintiff's switching crew on the night of the accident. Plaintiff's interrogatory No. 21 asked:

'State whether or not the defendant railroad has a surveyor's diagram or plat in its possession covering the physical layout of the railroad tracks, streets and buildings, etc. in the general area where the plaintiff was injured on June 12, 1969, and if the answer is in the affirmative, state:

a) The date the survey or plat was made;

b) The person or persons who has possession of a copy of said plat.'

The defendant stated that it did have such a plat, that the plat was dated April 15, 1959, and was in the possession of G. E. Johnson.

On November 5 and December 28, 1970, defendant filed amended answers to plaintiff's interrogatory No. 4, naming the Railroad's Superintendent of Safety, Division Safety Officer, Train Master, and Terminal Superintendent as having been present at the scene either immediately before, at the time of, or immediately after the occurrence.

The original answers and all amended answers were signed for the Railroad by C. E. Hill, a claim agent employed by the defendant Railroad.

A few weeks prior to trial, on December 29, 1970, plaintiff's counsel sent a letter to defendant's counsel stating that on December 24, 1970 the Railroad had, for the first time, disclosed that it possessed certain plats and diagrams prepared a few hours after the accident by a then-unknown employee of the Railroad. Because the defendant's possession of these diagrams apparently contradicted the defendant's answer to interrogatory No. 21, plaintiff demanded immediate up-to-date answers to all prior interrogatories and immediate compliance with the Monier order. Plaintiff further demanded the production of any of defendant's personnel who were at the scene on the date of the injury.

On January 4, 1971 the defendant produced for deposition Mr. Edward Monahan, a previously undisclosed Railroad employee, who was at the scene a few hours after the accident to prepare diagrams of the site. The defendant also produced three diagrams of the track area made by its engineering department; two diagrams were dated June 12, 1969, and one was dated January 4, 1971.

On January 13, 1971, the third day of trial, defendant made certain oral amendments to its answers to plaintiff's interrogatories. On January 19, 1971, plaintiff's counsel stated to the court that although defendant had presented to him certain weed spray records on December 24, 1970, plaintiff now found that these records were incomplete. These records represented the log of the Railroad's weed spray program of June, 1969 in the West Davenport rail yards, where the injury occurred. Because of the plaintiff's allegation at trial that the oil based weed spray had contributed to cause his fall under the moving train, plaintiff's counsel brought the matter to the attention of the trial court when he discovered that the records he had been given omitted the log of weed spray operations for June 11 and 12, 1969, the day before and the day of the accident. Upon this representation the trial judge suggested that defendant's counsel make a search for the missing records. Defendant's counsel contended he had given plaintiff all of the weed spray records. Nevertheless, on the next day, January 20, 1971, defendant's counsel disclosed that he had found the weed spray records of June 11 and 12, 1969, and presented them to plaintiff.

On January 20, 1971, Charles Hill, a claim agent employed by the defendant who signed all of the defendant's written answers to the interrogatories, was called as an adverse witness by the plaintiff. The defendant immediately objected to Hill's testimony on the grounds of relevancy. Plaintiff's counsel argued that due to defendant's seeming reluctance to produce documents during...