Pry v. Alton & Southern Ry. Co., 5-91-0520

• Decision Date: 25 August 1992
• Docket Number: No. 5-91-0520,5-91-0520
• Citation: 598 N.E.2d 484,174 Ill.Dec. 287,233 Ill.App.3d 197
• Parties: , 174 Ill.Dec. 287 Richard PRY, Plaintiff-Appellee, v. The ALTON & SOUTHERN RAILWAY COMPANY, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 484

598 N.E.2d 484

233 Ill.App.3d 197, 174 Ill.Dec. 287

Richard PRY, Plaintiff-Appellee, v. The ALTON & SOUTHERN RAILWAY COMPANY, Defendant-Appellant.

No. 5-91-0520.

Appellate Court of Illinois Fifth District.

Aug. 25, 1992.

James C. Cook, Walker and Williams, P.C., Belleville, for defendant-appellant.

Kujawski & Faerber, P.C., Belleville, Jeanne Sathre, Edwardsville (Fritz G. Faerber, of counsel), for plaintiff-appellee.

Justice WILLIAM A. LEWIS delivered the opinion of the court:

Plaintiff, Richard Pry, filed a complaint in the St. Clair County Circuit Court on November 7, 1986, pursuant to the Federal Employers' Liability Act (FELA) (45 U.S.C. §§ 51-60 (1982)), against the defendant, Alton & Southern Railway Company, for a work-related injury to his left knee on May 24, 1984. The defendant's motion to dismiss was denied, and subsequently, the defendant filed its answer and affirmative defenses, one of which was that the plaintiff had compromised and settled his claim for this injury when he signed a release on June 7, 1985. Following a jury trial on the plaintiff's complaint, the jury found for the plaintiff and against the defendant and awarded the plaintiff $650,000 in damages. The defendant appeals.

On appeal, the defendant raises numerous issues. The defendant alleges that: (1) the Railway Labor Act (45 U.S.C. §§ 151-160 (1982)) was applicable and preempted the circuit court's jurisdiction over the plaintiff's FELA cause of action; (2) the circuit court erred in refusing to submit the defendant's special interrogatory to the jury pursuant to section 2-1108 of the Code of Civil Procedure (Ill.Rev.Stat.1991, ch. 110, par. 2-1108); (3) the plaintiff's complaint was barred by FELA's three-year statute of limitations; (4) the court erred in allowing the plaintiff to amend his complaint during trial to include a count under the Safety Appliance Act (45 U.S.C. §§ 1-16 (1982)) and in giving the jury corresponding instructions under the Safety Appliance Act; (5) the court erred in barring medical testimony of the plaintiff's preexisting coronary artery disease; (6) the court erred in admitting medical evidence of the possibility of future surgical replacement of the plaintiff's left knee; (7) the evidence was insufficient to support a jury verdict under FELA and under the Safety Appliance Act; and (8) the jury's verdict was excessive and indicated that the jury was motivated by passion and prejudice. We affirm for the reasons set forth below.

At trial, the plaintiff testified he had worked for the defendant since May 16, 1963, primarily as a switchman, but he had spent three months as a yardmaster. As a switchman, his duties consisted of uncoupling and coupling railway cars. The plaintiff explained that some railway cars coupled on contact, but when this failed to occur, a switchman had to go between the cars and couple them manually.

On May 24, 1984, two cars failed to couple because of a misaligned drawbar, requiring the plaintiff to step between the cars and realign the drawbar. The plaintiff informed the yardmaster that he had a misaligned drawbar, and the yardmaster advised the plaintiff to straighten it by any method available. To move the misaligned drawbar, the plaintiff first exerted normal pressure, but when this attempt failed, the plaintiff braced his feet against the rail, placed his back against the drawbar, and pushed and lifted the drawbar. According to the plaintiff, this method was one he had been shown when he was trained as a switchman. When the plaintiff realigned the drawbar, it felt as though something burned in his left knee. The plaintiff reported the incident to the trainmaster, and the trainmaster removed him from his switchman duties and assigned him to tasks on the engine for the remainder of the plaintiff's shift. The plaintiff's shift as a switchman was from 7 or 7:30 a.m. to 3 or 3:30 p.m.

The plaintiff did not report to work the following day because his left knee caused him too much pain, but he did report to work the next day, May 26, 1984. When the plaintiff attempted to work, the pain in his knee became too great, and he was taken to the emergency room of Memorial Hospital, where he was examined, given pain medication, and released. Subsequently, the plaintiff sought treatment from his family doctor, Dr. Hipskind, who kept him off work for a few days. The plaintiff returned to work, but his left knee continued to cause him pain. When his knee did not improve, Dr. Hipskind referred the plaintiff to Dr. William Simmons.

Dr. Simmons determined the plaintiff had a tear in his knee and performed arthroscopic surgery. Following this surgery, the plaintiff developed an infection which did not respond to medication, prompting Dr. Simmons to perform further surgery. The plaintiff returned to work on April 4, 1985.

When Dr. Simmons released the plaintiff for work, the defendant sent him to its doctor for a return-to-work physical. The defendant's doctor also released the plaintiff for work, and he resumed his duties as a switchman.

The plaintiff further testified that, following his accident of May 24, 1984, he had numerous discussions with G. Jim Miller, the defendant's claims man. On June 7, 1985, the plaintiff and Miller executed a release for the injury to his left knee sustained on May 24, 1984. In exchange, the plaintiff received $90,450, minus deductions for advances. At the time they signed the release, the plaintiff was working. The plaintiff planned to continue working, as he had children in high school and grade school. The plaintiff stated that he and Miller considered the plaintiff's settlement a good one since the plaintiff could continue to work. The plaintiff was not represented by an attorney when he discussed or executed the release.

The plaintiff continued to work; however, his left knee began to "give out" on him occasionally. When this occurred, he suffered no ill effects. Near the end of September 1985, as the plaintiff climbed the steps of the defendant's office building, his knee gave out on him, causing him to fall. The plaintiff caught himself with his hands, but he did not injure himself. The plaintiff saw Dr. Simmons following this incident, and the doctor took him off work through October. When the doctor released him for work on November 4, 1985, he was required to wear a knee brace when he worked. The defendant again had the plaintiff see its doctors for a return-to-work physical. Subsequently, Miller advised the plaintiff that the defendant's doctors refused to let the plaintiff return to work while wearing a knee brace due to safety considerations. The plaintiff had not worked for the defendant since October 1, 1985.

The plaintiff admitted Miller and Robert Heath had talked to him about accepting a yardmaster's position with the defendant. As a yardmaster, the plaintiff could sit to work, where as a switchman, his duties required him to walk and to jump on and off of railway cars. The plaintiff testified that Heath and Miller discussed the yardmaster position with him in late August or early September 1985, before he was medically disqualified from work by the defendant's doctors. The plaintiff indicated he would consider the yardmaster job; however, he subsequently refused the position as he did not want the aggravation of the job. If the plaintiff took the yardmaster position, he would be on the "extra board," i.e., he would be on call and work only when needed. There would also be 25 to 30 people ahead of the plaintiff on the "extra board," and consequently, he might work as little as once a week or once a month. Furthermore, the plaintiff's seniority as a switchman would not transfer to the yardmaster position. The plaintiff stated that he worked only the day shift as a switchman, but as a yardmaster, he would be required to work other shifts as well.

According to the plaintiff, after he was medically disqualified from his employment, he asked Miller if he could work as a yardmaster. The plaintiff was led to believe that he was totally disqualified from working for the defendant.

The plaintiff testified on cross-examination that he has not had surgery on his left knee since he returned to work in April 1985. The plaintiff's knee continues to hurt, he wears a brace, and he does not fall. The plaintiff was unaware of the possibility of future surgery on his knee if his condition worsened. He admitted he had signed the release for the defendant freely and voluntarily, and that he understood that, when he signed the release, he was compromising his claim against the defendant. Miller had told the plaintiff that if a settlement was "over six figures," the plaintiff would "sell his job."

G. Jim Miller (Miller), the defendant's former claims man, testified that he investigated the plaintiff's accident of May 1984. He corroborated the plaintiff's testimony that he injured his left knee on May 24, 1984, while moving a misaligned drawbar so that two railcars could couple. He also confirmed that the plaintiff had to go between two cars and push the drawbar, which moved horizontally, to effect the coupling.

Miller negotiated the settlement of the plaintiff's claim for his knee injury. Miller concluded that the defendant was liable under FELA and the Safety Appliance Act for the plaintiff's injuries. Miller also considered the nature of the injury, the treatment of the injury, and how long the plaintiff was off work to determine the amount of the settlement. He calculated the plaintiff's lost wages for his time off work to be between $23,000 and $30,000. Miller knew the plaintiff had returned to work in April 1985 and admitted that one of the factors considered in reaching the settlement was that the plaintiff would continue to work. According to Miller, the defendant had a "rule" that if the defendant paid six figures (such as $150,000), the defendant usually asked for the person's resignation.

Miller became aware the...