Reynolds v. Alton & Southern Ry. Co.

• Decision Date: 11 May 1983
• Docket Number: No. 82-330,82-330
• Citation: 450 N.E.2d 402,115 Ill.App.3d 88,70 Ill.Dec. 929
• Court: United States Appellate Court of Illinois
• Parties: , 70 Ill.Dec. 929 Lyle J. REYNOLDS, Plaintiff-Appellee, v. ALTON & SOUTHERN RAILWAY COMPANY, a Corporation, Defendant-Appellant.

Page 402

450 N.E.2d 402

115 Ill.App.3d 88, 70 Ill.Dec. 929

Lyle J. REYNOLDS, Plaintiff-Appellee, v. ALTON & SOUTHERN RAILWAY COMPANY, a Corporation, Defendant-Appellant.

No. 82-330.

Appellate Court of Illinois Fifth District.

May 11, 1983.

Donald J. Dahlmann and James C. Cook, Walker & Williams, P.C., Belleville, for defendant-appellant.

Edward J. Kionka, Carbondale, and Jon G. Carlson, Chapman & Carlson, Granite City, for plaintiff-appellee.

JONES, Justice:

Plaintiff, Lyle Reynolds, brought this action to recover damages for an alleged violation of the Federal Safety Appliance Act (45 U.S.C. § 1, et seq. (1970)) which resulted in injury to the plaintiff during the course of his employment as a switchman for the defendant, Alton & Southern Railway Company. The trial court directed a verdict for the plaintiff on the issue of liability and entered judgment on the jury's verdict for damages in the amount of $89,200. The defendant contends on appeal (1) that the trial court erred in directing a verdict under the automatic coupling provision of the Safety Appliance Act (45 U.S.C. § 2 (1970)) where the plaintiff's injury occurred while he was aligning a drawbar prior to an attempt at coupling; (2) that the court erred in excluding evidence of a heart attack suffered by the plaintiff during the period in which he was allegedly disabled due to the injury in question; and (3) that the jury's verdict was excessive as a result of trial errors which prejudiced the defendant's right to a fair trial. We affirm.

Plaintiff Reynolds suffered an injury diagnosed as tendinitis or "tennis elbow" on October 27, 1977, when he Attempted to realign A drawbar on one of the railroad cars in the defendant's "bowl" yard. His family doctor, Dr. Walter Zielonko, injected the elbow and saw him five or six times before referring him to Dr. Earl Holt, an orthopedic specialist. Dr. Holt saw the plaintiff on December 1, 1977, on December 15, 1977, and on January 12, 1978. Thereafter the defendant's safety and claims superintendent, G.J. Miller, referred the plaintiff to another specialist, Dr. Elliott O'Reilly, who treated the plaintiff until August 1978. At that time Dr. O'Reilly released the plaintiff to go back to work, and Mr. Miller arranged to have the plaintiff "cleared" by Sutter Clinic before he returned to work on August 13, 1978.

Prior to trial on January 21, 1982, plaintiff's counsel made an oral motion in limine requesting the court to exclude any evidence that the plaintiff had suffered a heart attack in December 1977. It was contended that such evidence would be irrelevant to the issue of when the plaintiff was able to go back to work since the plaintiff was disabled due to his elbow injury during the period of time he was recovering from the heart attack. The defendant opposed the motion, alleging that Dr. Holt had released the plaintiff to go back to work on December 1, 1977, three weeks before the plaintiff suffered his heart attack on December 24, 1977. The defendant contended that since the plaintiff was under care for the heart problem until April 15, 1978, the fact of the heart attack was relevant to the issue of when the plaintiff was sufficiently recovered from the elbow injury to resume work.

The court granted the motion in limine, stating,

" * * * I don't feel the heart attack in question is relevant to the issues in the case[. I]f he had a disability from his elbow and was unable to be back to work, which is the subject matter of the lawsuit, he would not have been able to go back to work regardless of the heart attack, and that's the issue of disability resulting from the injury, and on the other hand, if his elbow had healed and got better, it would seem to me that that is the issue involved in the case. The--I think to some extent this is similar to an accident or injury to an unrelated portion of the body involved in a tort, and I don't think that this is relevant * * *."

The cause proceeded to trial, and plaintiff Reynolds, testifying in his own behalf, stated that at the time of his injury he was working in the defendant's "bowl" or "hump" yard where railroad cars are transferred from one track to another and classified in order to make up trains. The cars are pushed by an engine onto a small hill or hump and then are released without brakes to travel down into the bowl yard where they are to couple together on impact. When the track is full it is "locked out" so that no more cars will be put on the track, and a switchman checks the track to make sure the cars have coupled. In order for the cars to couple, the couplers must be open and the drawbars to which the couplers are attached must be in line with each other. When cars fail to couple because of a misaligned drawbar, it is the switchman's responsibility to realign the drawbar so that coupling may be completed.

On the night of the plaintiff's injury, he was checking a track of about 20 cars which had already come down the hump. When he was approximately 10 to 12 cars from the engine, he noticed that the coupling between two cars had not been made because of a drawbar that was out of line. He had the engine pull the two cars apart and then stepped between them in order to pull and lift the drawbar toward the center to straighten it. With this action he injured his left elbow.

The plaintiff testified that he had his arm X-rayed that evening and then consulted his family doctor the next day. His arm was stiff, swollen and sore, and after five or six visits with Dr. Zielonko, he was referred to Dr. Holt on December 1, 1977. Dr. Holt examined his elbow and told him he thought surgery was necessary. The plaintiff stated that after he told Dr. Holt he did not want surgery, Dr. Holt became "cool" toward him and gave up interest in him. Because his arm was still bothering him, he talked to Mr. Miller, the defendant's safety and claims agent, and Miller set up an appointment for him with Dr. O'Reilly, who recommended ultrasound treatments. The plaintiff testified that his arm continued to be sore through the winter, spring, and summer of 1978. It would get stiff and would "flare up" when he engaged in various activities. He had no strength in the arm and felt he was unable to go back to work as a switchman at that time.

After he returned to work in August 1978, the plaintiff continued to have difficulties with his arm. It would get stiff and sore, and he would have to stay home from work until the soreness went away. In the fall of 1979 he consulted Dr. Max Goldenberg, who had been recommended by his attorneys. In the year prior to trial in January 1982, the plaintiff had not missed any work because of his arm.

On cross-examination the plaintiff stated that during his first appointment with Dr. Holt on December 1, 1977, Dr. Holt injected his elbow and advised him to rest it. Dr. Holt told the plaintiff at his last appointment on January 12, 1978, that he was able to go back to work. The plaintiff went to see Mr. Miller sometime after he saw Dr. Holt because he was still having some soreness in his arm and wanted to see another doctor. The plaintiff denied that Dr. O'Reilly told him shortly after his first visit that he was able to go back to work.

G.J. Miller, the defendant's safety and claims superintendent, was called as an adverse witness for the plaintiff. He testified that he had arranged for the plaintiff to see Dr. O'Reilly in the spring of 1978. The plaintiff was still complaining of problems with his arm at that time and wanted another doctor to examine him. Dr. O'Reilly reported to Miller that surgery on the plaintiff's elbow might be a possibility but that he (Dr. O'Reilly) did not feel it was necessary. After the plaintiff's condition improved, Miller arranged for him to be examined by Sutter Clinic because of the defendant's medical rules that any time an employee is absent from work and is examined by another doctor, the employee must be re-examined by Sutter Clinic before returning to work.

Dr. Goldenberg testified finally that he first saw the plaintiff on October 15, 1979. In relating the history the plaintiff had given him, Dr. Goldenberg stated:

"Christmas Eve of 1977 he had a heart attack, was in the hospital about two weeks. In January of 1978 he was released as far as his heart was concerned, but he was not released as far as his elbow was concerned."

In his examination of the plaintiff, Dr. Goldenberg found that the plaintiff's left forearm was measurably smaller than his right forearm, indicating atrophy of the muscles of that arm due to lack of use or exercise.

Dr. Goldenberg treated the plaintiff with medication and ultrasound therapy, which provided temporary relief. Dr. Goldenberg stated, however, that injuries of the type the plaintiff had could "come and go, being worse at times and then completely calmed down for awhile." He was of the opinion that the plaintiff's condition constituted a permanent disability in that he could have recurrences for the rest of his life. He further testified that assuming the plaintiff was no longer employed by the defendant in the future, he would be declared "unemployable for certain classes of employment" such as those requiring heavy lifting or even light overhand or "dead-hand" lifting.

On cross-examination Dr. Goldenberg stated that the plaintiff has full function of his arm as far as extending and flexing are concerned, that he can lift overhead, and that the sensation in his arm is normal. He could continue to work as a switchman assuming that if he were required to do something on a given day when he was in pain, he would not do it.

Following Dr. Goldenberg's testimony, the defendant renewed its offer of proof concerning the fact of the plaintiff's heart attack on December 24, 1977, and his continued disability from the heart attack until April 15, 1978. The defendant argued that Dr. Goldenberg's reference to the heart attack had "opened the door" to testimony by...