Lewis v. Cotton Belt Route--Saint Louis Southwestern Ry. Co.

• Decision Date: 26 June 1991
• Docket Number: No. 5-89-0798,ROUTE--ST,5-89-0798
• Citation: 217 Ill.App.3d 94,576 N.E.2d 918,159 Ill.Dec. 995
• Parties: , 159 Ill.Dec. 995 Mark LEWIS, Plaintiff-Appellee, v. COTTON BELTLOUIS SOUTHWESTERN RAILWAY COMPANY, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 918

576 N.E.2d 918

217 Ill.App.3d 94, 159 Ill.Dec. 995

Mark LEWIS, Plaintiff-Appellee, v. COTTON BELT ROUTE--ST. LOUIS SOUTHWESTERN RAILWAY COMPANY Defendant-Appellant.

No. 5-89-0798.

Appellate Court of Illinois Fifth District.

June 26, 1991.

Rehearing Denied Aug. 9, 1991.

John B. Gunn & Leslie G. Offergeld, Walker & Williams, P.C., Belleville, for defendant-appellant.

John E. Norton, Belleville, Edward J. Kionka, Carbondale, for plaintiff-appellee.

Justice WELCH delivered the opinion of the court:

Judgment was entered against defendant, Cotton Belt Route--St. Louis Southwestern Railway Company, on May 18, 1989, by the circuit court of St. Clair County following jury verdict rendered in favor of plaintiff, Mark Lewis, in the amount of $175,000 on count I of his Federal Employers' Liability Act (45 U.S.C. sec. 51 et seq. (Law. Co-op. 1981)) complaint, for injuries sustained while plaintiff was employed by defendant railroad. Defendant appeals from the circuit court's denial on October 30, 1989, of its post-trial motion relative to count I of plaintiff's complaint. Although the court also entered judgment on jury verdict in favor of plaintiff on count II of his complaint, defendant does not appeal from that portion of the court's judgment.

Defendant raises the following issues on appeal:

(1) Whether certain comments made during plaintiff's closing argument resulted in a verdict based on passion and prejudice and prevented defendant from receiving a fair trial;

(2) Whether the trial court abused its discretion by failing to impose discovery sanctions on plaintiff, allowing one of plaintiff's witnesses to refer to certain notes she had in her possession during testimony, because plaintiff failed to produce a copy of these notes to defendant during discovery;

(3) Whether the trial court erred in refusing to submit to the jury defendant's tendered instruction No. 5, Illinois Pattern Jury Instructions, Civil, No. 5.01 (2d ed. 1971) (hereinafter IPI Civil 2d No. 5.01), on failure to produce a witness within a party's power to produce;

(4) Whether the jury's award of damages for impairment of future earning capacity was proper;

(5) Whether the trial court erred in giving plaintiff's issues instruction No. 15A, which instructed the jury on plaintiff's theory of the case that defendant had negligently failed to provide plaintiff with a safe place to work;

(6) Whether the trial court abused its discretion by admitting evidence that following plaintiff's accident the railroad had placed a spotter on the job; and

(7) Whether the trial court erred in giving plaintiff's instruction No. 14, the long version of Illinois Pattern Jury Instructions, Civil, No. 15.01 (3d ed. 1989) (hereinafter IPI Civil 3d No. 15.01), on proximate cause, under the evidence presented in this case.

Plaintiff was employed by defendant on August 16, 1978, as a maintenance-of-way laborer. This job involved the maintenance and repair of tracks and included loading and unloading of rails bound for a particular railyard. The injuries involved in count I of plaintiff's complaint occurred on September 25, 1979, at defendant's East St. Louis, Illinois, yard. Plaintiff's employment with defendant was terminated in July 1984 for reasons other than his physical condition after the 1979 accident.

Plaintiff testified that on the day of the incident he and another laborer by the name of Hoover Gatewood were told to go to the west end of the track in the yard to work with Mike Flowers, the cherry picker operator, unloading bundles of railroad ties from a gondola car and putting them onto the side of the road.

A "cherry picker" is a type of crane with a telescopic boom on a turntable. Attached to the boom is a tag-line cable weighing approximately 70 pounds, the end of which is attached to ball weights, which keep tension on the cable to keep it from getting tangled. Large metal hooks weighing approximately 5 to 10 pounds are attached to these weights and attached thereto are smaller hooks, known to the railroad laborers as "tie dogs". Tie dogs are stabbed into each of the railroad ties and when the cherry picker's boom is raised the ends of the tie dogs dig deeper into the bundle of ties. The cherry picker had windows on all four sides and mirrors on the left side for rear view. Plaintiff testified that the cherry picker had outriggers or "feet" on the four sides which were used when lifting heavy objects since the inflated tires could not support the crane. Use of the outriggers cause the crane's wheels to be lifted off the ground. Plaintiff further testified that if the crane was to be moved the outriggers had to be up and the wheels down.

Plaintiff testified that on the day of the incident Flowers was operating the cherry picker, and Gatewood and he were both inside the gondola car hooking tie dogs to bundles of 16 to 20 ties. He testified that the outriggers on the cherry picker were down. When the ties were hooked they would give a signal and Flowers would raise the tie bundles and set them on the ground. After they had removed three to four bundles from the gondola car, a railroad official drove to the site and told them that they needed to move the bundles farther off the road. Flowers testified that the height of these three to four bundles of ties would not have been over 28 inches. Plaintiff moved to the ground where Flowers had placed the tie bundles and waited for Flowers to reposition the cherry picker in the spot where they would move the bundles. Plaintiff testified that Flowers had to raise the outriggers to reposition the cherry picker. He testified that he and Flowers were looking at each other as Flowers repositioned the cherry picker. At that point plaintiff had gotten on the bundles and was raising the loop and chain to hook the tie dogs onto the large hook at the end of the crane. Plaintiff then turned around so that his back was facing the crane when he was struck in the back. He fell to one knee and as he turned around to yell at Flowers he saw that the boom had moved a small distance down from where it had been before and was level with the position his back had been when he had been hit. Plaintiff testified that he was nowhere near the ball and large hook which were laying against the front of the tie bundle.

Flowers testified that at the time of the accident he was looking directly at plaintiff. He testified that the distance from the ground to the crane would have been five feet with another four feet from there to where the boom was level, a total distance from ground to boom of 9 feet in the boom's horizontal position. He also testified that because the boom cannot go lower than the horizontal on the crane the boom would always be above the operator's head and never lower than his line of sight. Flowers recalled that he had lowered the cables so plaintiff could hook the tie dogs into each end of the ties and that he had let the tag line, weight, and hook down to give him enough slack. When plaintiff reached the tie dogs, Flowers let the boom down. Plaintiff hooked the ties and started to raise up when the hook caught him on one side of the back. Flowers, however, testified that the boom had not moved.

Although Gatewood couldn't remember whether plaintiff was on the ties in the gondola car or on the ground when the accident occurred, he testified that it was the boom which had struck plaintiff's back.

Gatewood testified that when the boom moves, the cab and operator move with it, and so the operator could not have a view of someone working around him all the time. Plaintiff testified that it was railroad custom to assign a crew member to act as a spotter in order to let the crane operator know where those workers were that the operator would not be able to see.

Willie Dickerson, employed by defendant railroad for 18 years and a foreman on another crew on the day plaintiff was injured, agreed with this testimony. Dickerson stated that because of the way the cab was made, it was necessary to have a spotter in situations where the boom blocks the vision of the crane operator and that this was the usual and customary practice of defendant railroad. Dickerson stated that it was up to the foreman to decide whether they should have a spotter, but he opined that a spotter is necessary to tell the operator when to move even if he can see the worker.

Flowers admitted that there were instances where you would need a spotter but testified that a spotter would not have been "feasible" at the time of plaintiff's accident because he was able to look at plaintiff through the front window of the crane's cab.

Gatewood also testified that during the afternoon of plaintiff's accident two additional men were sent to the work site and one of those men acted as a spotter.

Plaintiff testified that he got down off the bundles and told Gatewood and Flowers that he could not work any more that day. He was driven to the railroad doctor's office by a supervisor who also had him fill out an accident report form. Plaintiff told Dr. Doubek, the railroad's doctor, that he had gotten hit by the boom and had a sharp pain in his back. Dr. Doubek prescribed medication for pain, machine therapy, three days' rest, and light duty thereafter.

Plaintiff next presented himself for treatment with a Dr. Robert Bolton in July 1980 because after a few months the pain had gotten worse. Plaintiff testified that he had sharp, throbbing pain in his neck, back, left arm, and leg. Dr. Bolton diagnosed cervical strain with straightening of the cervical vertebrae and scoliosis of the cervical vertebrae, thoracic vertebral strain syndrome with scoliosis, and lumbar strain syndrome with rotation of the lumbar vertebrae. Dr. Bolton prescribed muscle relaxants, medication for pain, and physical therapy. Plaintiff was also hospitalized by Dr. Bolton for 20 days that same month, during which time a myelogram was performed and plaintiff received...