Leveck v. Consolidated Rail Corp.

• Decision Date: 09 May 1986
• Docket Number: No. 85-1235,85-1235
• Citation: 148 Ill.App.3d 118,101 Ill.Dec. 205,498 N.E.2d 529
• Parties: , 101 Ill.Dec. 205 Clarence LEVECK, Jr., Plaintiff-Appellee, v. CONSOLIDATED RAIL CORPORATION, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 529

498 N.E.2d 529

148 Ill.App.3d 118, 101 Ill.Dec. 205

Clarence LEVECK, Jr., Plaintiff-Appellee, v. CONSOLIDATED RAIL CORPORATION, Defendant-Appellant.

No. 85-1235.

Appellate Court of Illinois First District, Fifth Division.

May 9, 1986.

Supplemental Opinion on Denial of Rehearing Oct. 24, 1986.

Lord, Bissell & Brook, Chicago (Alvin E. Domash, Paul G. Velbergs and Hugh C. Griffin, of counsel), for defendant-appellant.

Robert E. Harrington, Jr., Harrington & Harrington, Ltd., Chicago (Henslee, Monek & Henslee, of counsel), for plaintiff-appellee.

Presiding Justice SULLIVAN delivered the opinion of the court:

Defendant appeals from a directed verdict for plaintiff in an action brought under section 2 of the Federal Safety Appliance Act (45 U.S.C.A., § 2 (1970)), to recover for injuries sustained during the course of his employment, contending that the trial court erred in (a) excluding certain evidence which contradicted plaintiff's version of the occurrence and rebutted his claim that his injuries proximately resulted from violations of the Act, and (b) directing a verdict for plaintiff on the issue of liability.

The record discloses that on the night of the occurrence plaintiff was working as a switchman at defendant's South Yard in Lansing, Michigan. It was the responsibility of plaintiff and the other members of the night crew to separate a train of 40 or 50 cars they had transported from another yard, switch the cars from the main track and then connect them to various outgoing trains located on Tracks 1 through 8.

Plaintiff testified that he was in the vicinity of Tracks 3 and 4 at about 12:30 a.m. when the conductor, Mark Wise, instructed him to couple the cars on Track 2. He gave a signal to the brakeman on the engine--which was located on the southern end of Track 2 facing north--to "tie in," i.e., push the cars together, but as he walked toward the train he noticed that two cars, located approximately 5 to 6 car lengths (350 to 360 feet) north of the engine, had not coupled. In order to effect a coupling, it is necessary that the drawbars on both cars be centered and that at least one knuckle be open. Under normal circumstances, when the cars are pushed together the knuckles close and a pin drops, locking the coupling mechanism. Inspecting the two cars which had not coupled, he observed that they were about 4 to 5 feet apart, that both drawbars were centered and that both knuckles were open. Stepping off the track, which curved eastward, he signalled the engineer, who was seated on the right (east) side of the engine to push ahead so as to join the cars. Upon impact, he heard the clash of the metal making contact, which was normal, but saw that the cars had still failed to couple. He signalled the engineer to pull the southern car--the B & O boxcar--back about 30 feet, the minimum distance prescribed by the safety rules, and then stepped onto the track between the cars to determine the cause of the failed coupling. At that point, he saw that the drawbar on the north--or "B"--end of the B & O boxcar had skewed about 1 foot to the east and that the knuckle was still open. The drawbar on the north car was centered but the knuckle thereon was closed. He walked back to the B & O car and, placing his left foot inside the rail and his right foot outside, he took hold of the drawbar and attempted, by exerting force with his shoulder, to realign it. As he did so, his right knee "popped" and he felt a very sharp pain. He then fell to the ground, striking his knee on the top of the rail. A few seconds later, Wise arrived and after helping him off the track, Wise also attempted to adjust the drawbar but was unable to move it. Wise then assisted him to the Yardmaster's tower where he (plaintiff) completed an accident report after which he was transported to the hospital by the Trainmaster.

After a lengthy examination regarding the nature and extent of his injuries and the treatment he received therefor, plaintiff stated, on cross-examination, that although the engine travelled only a few feet at about 2 miles per hour, based on his experience, the jolting of the cars when the slack between them ran out was sufficient, due to the amount of weight being pushed forward, to have caused the drawbar to move off-center; and that the knuckle on the north car may have closed when it was struck by the drawbar that had become misaligned.

Mark Wise testified that he was near Tracks 7 and 8 when he noticed that plaintiff was having difficulty making a coupling on Track 2. Plaintiff had signalled the engine forward, but when the cars did not join, he stepped eastward so as to direct the engineer to back up and then went between them. As he (Wise) walked across the tracks to assist, he saw that the drawbar on the B-end of the southern car was off-center to the east and that plaintiff was attempting to push it back on center when he fell between the rails. After assisting plaintiff off the track, he attempted to adjust the drawbar so as to complete the coupling procedure on that track, but it would not move. He then helped plaintiff walk to the Yardmaster's tower after which he returned to work. Although the B & O car remained on Track 2 that night, he saw that it had been pushed further down the track by the time he left the Yard at about 5 a.m.

In support of its theory that the injury did not happen as plaintiff claimed, defendant sought to introduce the testimony of three of its employees who inspected the B & O car at about 10 o'clock in the morning after the accident and found the drawbar in question to be in good working order. Specifically, Trainmaster John Schall testified that he went home after taking plaintiff to the hospital for treatment and did not return to the Yard until about 3 a.m. He reported back to work several hours later and, together with the Yardmaster and the Equipment Foreman, performed an inspection of the B & O boxcar and the area around it. He tested the drawbars on both ends of the car and found that they both moved freely from side to side. He also observed that there were no fresh scratch marks on the rusted surface of the metal as would likely be present if the knuckle had slid over the bar or the drawbars had crossed during an attempted coupling. The B & O car was still on Track 2 at the time of the inspection and, to his knowledge, had not been repaired or modified since the accident. On cross-examination, Schall acknowledged that the inspection took place approximately 9 1/2 hours after plaintiff was injured; that he did not know whether the car had been moved during that time because he was not at the Yard; that although at the time of the inspection it was situated about 3 to 4 car lengths north of the office at the southern end of Track 2, he could not recall which way it was facing; and that while he considered the absence of scratch marks significant, he had not noted that finding in his report.

In an evidence deposition, John Workman, the Equipment Foreman, testified that when he inspected the drawbars on both ends of the B & O car involved they worked normally and could be moved from side to side with one hand. On cross-examination, Workman stated that it was his understanding that plaintiff was injured adjusting the drawbar on the A-end of the car, which at the time of the inspection was facing north on Track 2; that although some cars are equipped with self-centering drawbars which automatically realign when uncoupled, the ones on the B & O car in question were not of that type; and that when he first saw it, the drawbar was off-center.

Yardmaster Stanley Michel testified that at the time of the inspection, the B-end of the car was facing south on Track 2 and that the drawbar thereon moved from left to right with no difficulty.

Plaintiff then renewed his motion, made prior to trial, to exclude all evidence relating to the inspection, arguing that it was (a) incompetent because defendant had failed to establish that the condition of the car and the coupling mechanism thereon was the same as at the time of the accident, maintaining that, in fact, the testimony of Workman and Michel established that the car had been turned in the opposite direction on the track, and (b) immaterial because under the Safety Appliance Act, a railroad is absolutely liable for injuries resulting from the failure of a coupler to couple automatically regardless of whether it functioned properly before or after the accident.

After argument by counsel, the trial court granted plaintiff's motion to exclude the post-accident inspection evidence, specifically ruling that such evidence is not material in an action alleging a violation of the Safety Appliance Act but also noting that defendant had not conclusively established in its offer of proof that the location and condition of the car had not been changed in the 9 1/2 hours between the accident and the inspection.

John Schall then testified that assuming that the two cars involved were 4 to 5 feet apart on a straight track with their drawbars centered and knuckles open and that the engine reached a speed of no more than two miles per hour before being signalled to stop, it was his opinion, based on his experience in having inspected thousands of railroad cars, that the drawbars would not "bypass" or become misaligned as plaintiff had described even if they failed to couple but, instead, would either bounce back apart or remain together, but unlocked. Schall also stated, however, that the force of the weight of the engine together with that of the four or five cars in front of it could knock a drawbar out of alignment depending on the rate of acceleration and braking, and he acknowledged that drawbars are supposed to couple automatically.

Following Schall's testimony, the trial court granted plaintiff's motion for a directed verdict on the issue of liability, submitted the question of damages to the jury, and subsequently...