Quilter v. ELGIN, JOLIET AND EASTERN RAILWAY COMPANY

• Citation: 409 F.2d 338
• Decision Date: 22 May 1969
• Docket Number: No. 17165.,17165.
• Parties: John Edward QUILTER, Plaintiff-Appellee, v. ELGIN, JOLIET AND EASTERN RAILWAY COMPANY, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

409 F.2d 338 (1969)

John Edward QUILTER, Plaintiff-Appellee, v. ELGIN, JOLIET AND EASTERN RAILWAY COMPANY, Defendant-Appellant.

No. 17165.

United States Court of Appeals Seventh Circuit.

March 28, 1969.

Rehearing Denied May 22, 1969.

Harlan L. Hackbert, Chicago, Ill., for defendant-appellant, Hackbert, Rooks, Pitts, Fullagar & Poust, Chicago, Ill., of counsel.

Philip H. Corboy, Edwin A. Strugala, Chicago, Ill., for plaintiff-appellee.

Before DUFFY, Senior Circuit Judge, and KILEY and CUMMINGS, Circuit Judges.

DUFFY, Senior Circuit Judge.

This is a suit under the Federal Employers' Liability Act (45 U.S.C. § 51 et seq.) to recover damages for personal injuries alleged to have been sustained by plaintiff on July 9, 1963, when he operated a railroad switch in defendant's South Chicago yard.

After a trial, the jury returned a verdict in favor of plaintiff, awarding damages of $144,000 for which sum the District Court entered judgment.

In December 1939, plaintiff commenced work for defendant as a switchman. In 1942, he entered military service but was discharged six months later for an aggravation of a peptic ulcer. Plaintiff's seniority permitted him, at times, to operate three multiple or "puzzle" switches which controlled the movement of trains from Gary, Indiana, to defendant's South Chicago yard.

On July 9, 1963, plaintiff was working as the puzzle switch operator. On the night in question, plaintiff noticed the switch "worked pretty stiff." He pressed his foot on the lever which "let loose suddenly." Plaintiff fell and later reported pains in his hip. A doctor examined him, gave him some pills and sent him home. Plaintiff worked the following night but at the end of his turn reported to the dispensary. He was examined by three doctors and was sent to a hospital for an examination by Dr. Meyer.

On July 17, 1963, x-rays revealed a 2½ inch fracture through the back part of the acetabulum. Plaintiff received forty-eight treatments from July 17, 1963 to February 10, 1964. An examination on November 19, 1963 by Dr. Zeiss, a company physician, disclosed normal muscle size and full motion of the hip, knee and ankle joints. An x-ray taken on January 3, 1964, showed a gradual healing of the acetabulum. An x-ray taken on February 12, 1964, revealed "complete healing of the fracture of the acetabulum on the left side." Dr. Zeiss gave plaintiff a back-to-work slip for February 17, 1964.

On February 24, 1964, plaintiff went to his own doctor, a Dr. O'Donoghue and gave him a history of loss of weight, nausea and vomiting for the preceding three weeks. Plaintiff had not told any of the defendant's doctors or supervisors of these complaints. Dr. O'Donoghue put plaintiff in a hospital and diagnosed the condition as a resurgence of peptic ulcer. On March 10, 1964, Dr. O'Donoghue operated, resecting the stomach and vagus nerve. About 70% of plaintiff's stomach was removed.

Because of plaintiff's history of accident, Dr. O'Donoghue referred him to Dr. Howard, an orthopedic surgeon, who operated on plaintiff's hip by cutting away some of the labrum or cartilage on the rim of the acetabulum which had been inverted into the hip joint, and thus enabled the femoral head of plaintiff's hip joint to move more freely.

Plaintiff was discharged from the hospital on December 12, 1964. He was examined by Dr. Zeiss on August 5, 1965, and was given a work slip. He returned to work for the defendant on August 9, 1965, and worked regularly as a switchman until December 5, 1966, a period of almost sixteen months.

Like other railroads, defendant has a rule prohibiting the use of intoxicants by employees while on duty. Plaintiff was familiar with this rule prior to July 9, 1963, for he had previously been suspended for its violation.

Some time in November 1965, plaintiff started drinking "a couple of shots of whiskey" on his way to work, and again outside the gate during his lunch hour. In March 1966, he was again suspended for sixty days for drinking. On December 5, 1966, he had five or seven shots of whiskey before going to work. He was taken to the dispensary by the trainmaster where he was found to be under the influence of alcohol. After an investigation and hearing, he was discharged.

Plaintiff now explains that he drank on the job because of pain in his hip resulting from his injury on July 9, 1963. It may be noted that plaintiff never notified the Company or sought any medical help for relief from any such pain. At the investigative hearing leading to his discharge, he made no mention of pain as an excuse for his drinking. He also produced no evidence as to "sleepless nights" except for his own unsupported statement. However, it is without dispute that during the sixteen month working period after his hip operation, he walked with a limp and dragged his left leg, which may have been obvious to the judge and jurors at his...